United States District Court, S.D. New York
OPINION & ORDER
L. Stanton U.S.D.J.
ZocDoc, Inc. requests leave to deposit $13, 900.00 with the
Clerk of Court and to move for summary judgment. For the
following reasons, ZocDoc's request is granted.
2014, plaintiff Radha Geismann, M.D., P.C., a Missouri
professional corporation, filed a complaint in Missouri state
court, alleging that it received two unsolicited faxes from
ZocDoc, in violation of the Telephone Consumer Protection Act
of 1991 ("TCPA"), 47 U.S.C. § 227, which,
inter alia, prohibits the use of "any telephone
facsimile machine, computer, or other device to send, to a
telephone facsimile machine, an unsolicited advertisement,
" unless "the unsolicited advertisement is from a
sender with an established business relationship, " the
recipient volunteered its number to the sender, or the fax
meets certain other notice requirements. Id. §
seeks between $500.00 and $1, 500.00 for each alleged TCPA
violation, an injunction prohibiting ZocDoc from sending
similar faxes in the future, and costs. It also filed a
motion for class certification. On March 13, 2014, ZocDoc
removed the action to the United States District Court for
the District of Missouri. Two weeks later, ZocDoc made an
offer of judgment pursuant to Fed.R.Civ.P. 68(a) for $6,
000.00, plus reasonable attorney's fees, and an
injunction prohibiting it from sending Geismann similar faxes
in the future. On April 8, Geismann rejected the offer.
April 18, 2014, ZocDoc moved to transfer the action to the
United States District Court for the Southern District of New
York pursuant to 28 U.S.C. § 1404(a), which the court
granted. ZocDoc then moved to dismiss the complaint, arguing
that its offer of judgment satisfied all of Geismann's
claims, thereby mooting the action.
September 26, 2014, I granted ZocDoc's motion and entered
judgment, holding that its offer of judgment "more than
satisfies any recovery Geismann could make under the
applicable statute" and as a result, "there remains
no case or controversy before the Court." Geismann
v. ZocDoc, Inc., 60 F.Supp.3d 404, 406-07 (S.D.N.Y.
2014), vacated and remanded, 850 F.3d 507 (2d Cir.
2017). Geismann appealed.
January 20, 2016, during the pendency of Geismann's
appeal to the Second Circuit, the Supreme Court decided
Campbell-Ewald Co. v. Gomez, ___ U.S. ___, 136 S.Ct.
663 (2016), which resolved a circuit split over whether a
defendant's unaccepted offer of judgment pursuant to
Fed.R.Civ.P. 68 in full satisfaction of a plaintiff's
claim moots that plaintiff's claim so as to deprive a
federal court of the Article III "cases" and
"controversies" jurisdictional requirement. In
Campbell-Ewald, respondent Jose Gomez sued for
damages pursuant to the TCPA for unsolicited text messages he
received from petitioner Campbell. Id. at 667.
Before the agreed-upon deadline for Gomez to file for class
certification, Campbell made an offer of settlement pursuant
to Fed.R.Civ.P. 68. Id. It offered to pay Gomez
costs, excluding attorney's fees, and $1, 503.00 for
every unsolicited text message Gomez could show he had
received. Id. at 668. Campbell also proposed an
injunction barring it from sending further text messages in
violation of the TCPA. Id. Gomez allowed
Campbell's offer to expire after the fourteen days
specified in Rule 68. Id. Campbell then moved for
summary judgment pursuant to Fed.R.Civ.P. 12(b)(1).
Id. It argued that its offer mooted Gomez's
claims and accordingly, there remained no Article III case or
controversy to adjudicate. Id.
that such an unaccepted offer does not moot an action, the
majority adopted Justice Kagan's dissent in
Genesis Healthcare Corp. v. Symczyk, 569
U.S. 66, 133 S.Ct. 1523, 1532 (2013) (Kagan, J., dissenting):
"When a plaintiff rejects such an offer--however good
the terms-her interest in the lawsuit remains just what it
was before. And so too does the court's ability to grant
her relief. An unaccepted settlement offer-like any
unaccepted contract offer--is a legal nullity, with no
operative effect. As every first-year law student learns, the
recipient's rejection of an offer 'leaves the matter
as if no offer had ever been made.' Minneapolis &
St. Louis R. Co. v. Columbus Rolling Mill, 119 U.S. 149,
151 [7 S.Ct. 168');">7 S.Ct. 168, 30 L.Ed. 376] (1886). Nothing in Rule 68
alters that basic principle; to the contrary, that rule
specifies that Ma]n unaccepted offer is considered
withdrawn.' Fed. Rule Civ. Proc. 68(b). So assuming the
case was live before-because the plaintiff had a stake and
the court could grant relief-the litigation carries on,
Campbell-Ewald, 136 S.Ct. at 670, 193, quoting
Genesis Healthcare, 133 S.Ct. at 1532 (Kagan, J.,
Supreme Court also raised a hypothetical which it declined to
decide-"whether the result would be different if a
defendant deposits the full amount of the plaintiff's
individual claim in an account payable to the plaintiff, and
the court then enters judgment for the plaintiff in that
amount." Id. at 672.
February 1, 2016, ZocDoc requested leave to deposit $6,
100.00 with the Clerk in satisfaction of its offer of
settlement. I granted its request, noting "No principle
or authority appears to prevent compliance with an unstayed
judgment, even one under appeal." Dkt. No. 62. On
February 5, 2016, ZocDoc deposited $6, 100.00 with the
Court's Clerk's Office, where it remains.
March 9, 2017, the Second Circuit reversed and remanded my
September 26, 2014 order and judgment, stating (850 F.3d at