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Geismann v. ZocDoc, Inc.

United States District Court, S.D. New York

July 28, 2017

RADHA GEISMANN, M.D., P.C., Plaintiff,
ZOCDOC, INC., Defendant.

          OPINION & ORDER

          Louis L. Stanton U.S.D.J.

         Defendant 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.


         In 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. § 227(b)(1)(C).

         Geismann 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.

         On 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.

         On 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.

         On 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.

         Holding 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, unraooted." Ibid.

Campbell-Ewald, 136 S.Ct. at 670, 193, quoting Genesis Healthcare, 133 S.Ct. at 1532 (Kagan, J., dissenting).

         The 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.

         On 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.

         On March 9, 2017, the Second Circuit reversed and remanded my September 26, 2014 order and judgment, stating (850 F.3d at ...

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