Radha Geismann, M.D., P.C., individually and on behalf of all others similarly situated, Plaintiff-Appellant,
ZocDoc, Incorporated, Defendant-Appellee, John Does 1-10, Defendants.
Argued: June 5, 2015
Submission: February 1, 2016
Geismann, M.D., P.C., appeals from a judgment of the United
States District Court for the Southern District of New York
(Louis L. Stanton, Judge) dismissing its putative
class action suit against ZocDoc, Inc., alleging violations
of the Telephone Consumer Protection Act. The district court
concluded that a settlement offer, made by ZocDoc but
rejected by Geismann, would have afforded Geismann complete
relief, notwithstanding a pending class-certification motion.
The court entered judgment in Geismann's favor in the
amount and under the terms of the unaccepted offer and
dismissed the action for lack of subject matter jurisdiction
on the ground that it had become moot. We conclude that the
settlement offer did not render the action moot and that
judgment should not have been entered nor the action
dismissed on that basis. The judgment of the district court
L. HARA (David M. Oppenheim, on the brief), Anderson Wanca,
Rolling Meadows, Illinois, for Plaintiff-Appellant.
C. KIMREY (Charles J. Nerko, Vedder Price P.C., New York, New
York, Bryan K. Clark, on the brief), Vedder Price P.C.,
Chicago, Illinois, for Defendant-Appellee.
Before: Sack, Hall, and Carney, Circuit Judges.
Radha Geismann, M.D., P.C. ("Geismann"), appeals
from the district court's dismissal of its putative class
action against the defendant-appellee ZocDoc, Inc.
("ZocDoc"), alleging violations of the Telephone
Consumer Protection Act ("TCPA"), 47 U.S.C. §
227. Geismann's suit stems from two unsolicited
telecopies (colloquially and hereinafter "faxes")
it allegedly received from ZocDoc. After Geismann filed a
complaint and motion for class certification, ZocDoc made a
settlement offer to Geismann as to its individual claims
pursuant to Federal Rule of Civil Procedure 68. Geismann
rejected the offer. ZocDoc then moved to dismiss the action
for lack of subject matter jurisdiction on the ground that
its offer afforded Geismann complete relief, thereby mooting
the action. The United States District Court for the Southern
District of New York (Louis L. Stanton, Judge)
granted the motion, agreeing with ZocDoc that the rejected
offer, which the court concluded would have afforded Geismann
complete relief on its individual claims, rendered the entire
action moot, notwithstanding the pending class-certification
motion. The court entered judgment in Geismann's favor
under the terms offered by ZocDoc and dismissed the action.
While this appeal was pending, the district court granted
ZocDoc leave to deposit a check in the amount of $6, 100.00
with the Clerk of the United States District Court for the
Southern District of New York in satisfaction of judgment.
conclude that the action was not and is not "moot."
An unaccepted Rule 68 offer of judgment is, regardless of its
terms, a legal nullity.
a Missouri corporation, alleges that it received from ZocDoc,
a Delaware corporation, two unsolicited faxes advertising a
''patient matching service'' for doctors.
Joint Appendix (''J.A.'') 43, 57-58. Both
faxes stated that if the recipient wished to ''stop
receiving faxes, '' he or she could call a domestic
telephone number provided in the fax. J.A. 57, 58.
2014, Geismann filed a complaint in Missouri state
court alleging that these faxes violated the
TCPA,  which prohibits, inter alia, the
use of ''any telephone facsimile machine, computer,
or other device to send, to a telephone facsimile machine, an
unsolicited advertisement, unless'' the sender and
recipient have an ''established business
relationship, '' the recipient volunteered its fax
number directly to the sender or through voluntary
participation in a directory or other public source, or the
fax meets certain specified notice requirements. 47 U.S.C.
§ 227(b)(1)(C); see also id. § 227(a)(5)
(''The term 'unsolicited advertisement' means
any material advertising the commercial availability or
quality of any property, goods, or services which is
transmitted to any person without that person's prior
express invitation or permission, in writing or
complaint requested between $500.00 and $1, 500.00 in damages
for each TCPA violation, an injunction prohibiting ZocDoc
from sending similar faxes in the future, and costs. See
id. § 227(b)(3) (providing a private right of
action for injunctive relief and damages in the amount of
''actual monetary loss'' or ''$500 .
. . for each  violation, whichever is greater, ''
to be tripled at the court's discretion if the defendant
''willfully or knowingly violated [the
complaint also requested that the case be treated as a class
action. Geismann filed a separate motion for class
certification pursuant to Missouri law the same day that it
filed the complaint. The certification motion contained a
footnote explaining that Geismann filed the motion at the
same time as the complaint because the ''[d]efendants
in class litigation have resorted to making individual
settlement offers to named plaintiffs before a class action
is certified in an attempt to 'pick-off the putative
class representative and thereby derail the class action
litigation." Pl.'s State Ct. Mot. for Class
Certification at 1 n.1 (J.A. 19).
March 13, 2014, ZocDoc removed the action to the United
States District Court for the Eastern District of Missouri,
invoking federal question jurisdiction. See 28
U.S.C. §§ 1331, 1367. Two weeks later, ZocDoc made
an offer of judgment to Geismann pursuant to Federal Rule of
Civil Procedure 68 for (1) $6, 000, plus reasonable
attorney's fees,  in satisfaction of Geismann's
individual claims, and (2) an injunction prohibiting ZocDoc
from engaging in the alleged statutory violations in the
future. On April 8, 2014, Geismann rejected the offer ...