United States District Court, S.D. New York
SANWAR AHMED and ANA BUESTAN, individually and on behalf of all others similarly situated, Plaintiffs,
CITY OF NEW YORK, and individually and in their official capacity as New York City Department of Health and Mental Hygiene Inspectors JOSEPH PERSAUD and UKO UTIN and JOHN DOES 1-5, Defendants.
H. STEIN, U.S. District Judge.
Sanwar Ahmed and Ana Buestan are "street vendors"
in New York City who allegedly "had their vending carts
and other property seized and disposed of" by New York
City Department of Health and Mental Hygiene inspectors
"without legal authority to do so." (Compl. ¶
2.) Ahmed is an immigrant from Bangladesh and a licensed New
York City food vendor who sells jhal muri, a Bangladeshi
snack of puffed rice and spices, from his food cart.
(Id. ¶ 8.) Buestan is an Ecuadorian immigrant
who sells flavored ices from her food cart and is also a
licensed food vendor. (Id. %9.)
bring claims for violations of their constitutional rights
pursuant to 42 U.S.C. § 1983 and New York state law
claims for conversion and negligence on behalf of a putative
class of "all New York City street vendors who have been
permanently deprived of their vending pushcarts and other
vending property by defendants without any pre or
post-deprivation hearings." (Id. ¶ 53.)
Ahmed and Buestan filed their complaint on April 26, 2017 but
have not yet moved for class certification due to the need to
conduct discovery as to the number and identity of similarly
situated individuals. (See Pis/ Mem., Doc. 26 at 5;
Pis/ Reply Mem., Doc. 32 at 4-5.)
August 18, pursuant to Fed.R.Civ.P. 68, defendants presented
each plaintiff with an identical offer of judgment in the
amount of $2, 501 "plus reasonable attorneys' fees,
expenses and costs to the date of this offer." (Doc.
27-1; 27-2.) That figure exceeds the amount of property
damages claimed by Ahmed and Buestan,  though it does
not address their claims for injunctive and declaratory
relief arising out of the City's purportedly
unconstitutional policies. The Rule 68 offers of judgment
were addressed to Ahmed and Buestan individually and offered
no relief to the putative class.
and Buestan did not respond to the offers, which expired on
September 1. Pursuant to Fed.R.Civ.P. 68, "[a]n
unaccepted offer is considered withdrawn" and "is
not admissible except in a proceeding to determine
costs." In addition, the United States Supreme Court
confirmed last year in Campbell-Ewald Co. v. Gomez
that "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case." 136
S.Ct. 663, 672 (2016). The only possible effect of the
unaccepted offers, per Rule 68(d), is to hold Ahmed and
Buestan responsible for subsequently incurred costs
-including their attorneys' fees pursuant to 42 U.S.C.
§ 1988, see Marek v. Chesny, 473 U.S. 1, 11
(1985) - in the event that plaintiffs ultimately prevail but
obtain a judgment less favorable than the $2, 501 offer of
judgment made to each named plaintiff.
and Buestan have now moved pursuant to Fed.R.Civ.P. 7(b) for
an order "striking the Rule 68 Offer of Judgment
served" on each plaintiff "and declaring the Rule
68 Offer of Judgment to have no effect." (Doc. 25.) For
the following reasons, the Court denies plaintiffs'
Rule 68 reads in pertinent part as follows:
(a) Making an Offer; Judgment on an Accepted
Offer. At least 14 days before the date set for
trial, a party defending against a claim may serve on an
opposing party an offer to allow judgment on specified terms,
with the costs then accrued....
(b) Unaccepted Offer. An unaccepted offer is
considered withdrawn, but it does not preclude a later offer.
Evidence of an unaccepted offer is not admissible except in a
proceeding to determine costs.
(d) Paying Costs After an Unaccepted Offer.
If the judgment that the offeree finally obtains is not more
favorable than the unaccepted offer, the offeree must pay the
costs incurred after the offer was made.
first suggest that the offers should be stricken because
enforcing Rule 68 here would conflict with Congress's
intent to promote civil rights actions pursuant to 42 U.S.C.
§§ 1983 and 1988 by providing that reasonable
attorneys' fees and costs may be awarded to a prevailing
plaintiff. But the text of the rule contains no exception to
its terms for civil rights actions and the Supreme Court has
repeatedly rejected arguments for the judicial carveout to
Rule 68 that plaintiffs seek. Rather, "applying Rule 68
in the context of a § 1983 action is consistent with the
policies and objectives of § 1988. Section 1988
encourages plaintiffs to bring meritorious civil rights
suits; Rule 68 simply encourages settlements. There is
nothing incompatible in these two objectives."
Marek, 473 U.S. at 11; see also City of
Riverside v. Rivera, 477 U.S. 561, 580 (1986) (plurality
opinion). It would be jurisprudentially inappropriate for the
Court to encrust an exception onto a Federal Rule of Civil
Procedure that does not exist in the plain words of the rule
itself. This Court does not have the power to rewrite Rule
next advance the procedural posture of this case - a putative
class action - as a reason to grant their motion. Rule 68,
plaintiffs urge, is simply inapplicable to class actions.
Were Rule 68 to apply to class actions, they contend,
defendants could effectively defeat a class action by making
a Rule 68 offer to each named plaintiff. However, the great
weight of authority in this Circuit holds that "Rule 68
also applies to class actions." Morgan v. Account
Collection Tech., LLC, No. 05-CV-2131 (KMK), 2006 WL
2597865, at *3 (S.D.N.Y. Sept. 6, 2006); see also, e.g.,
Abrams v. Interco Inc., 719 F.2d 23 (2d Cir. 1983)
(Friendly, /.). Indeed, in 1983 and 1984, two proposed
amendments that exempted class actions from Rule 68 were
withdrawn in the face of considerable controversy.
See 12 Wright & Miller, Fed. Prac. & Proc.
Civ. § 3007 (2d ed. 2002). As a result, in the words of
a leading treatise, "the reality is that there presently
is no such exception, and Rule 68 offers have been employed
in class actions." Id. § 3001.1.
cannot be gainsaid that Rules 68 and 23 do not fit hand in
glove. Before Campbell-Ewald, some courts feared
that even unaccepted offers of complete relief could be used
to "pick off" individual plaintiffs and effectively
block entire class actions. See, e.g., McDowall v.
Cogan, 216 F.R.D. 46, 51 (E.D.N.Y. 2003); 1 Newberg on
Class Actions § 15:36 (4th ed. 2002). And once a class
is certified, Rule 68's procedures may not mesh perfectly
with Rule 23(e)'s requirement that the Court approve any
settlement. See Gay v. Waiters' & Dairy
Lunchmen's Union Local No. 30, 86 F.R.D. 500, 503
(N.D. Cal. 1980).
motion, however, presents an easy case: no motion for
certification has been granted or even filed. The individual
plaintiffs, and not any as-yet theoretical class, remain the
"opposing part[ies]" addressed by Rule 68. Ahmed
and Buestan are entitled to receive - and, if they wish, to
accept - offers of judgment on their ...