60 F. Supp. 3d 404
S.D.N.Y.2014Background
- Plaintiff Radha Geismann, a physician and putative class representative, alleged ZocDoc sent two unsolicited fax advertisements (July 24, 2012 and Oct. 2, 2012) without the TCPA-required opt-out notice.
- Geismann filed suit in Missouri state court on Jan. 10, 2014 and sought class certification; ZocDoc removed to federal court and later transferred the case to the Southern District of New York.
- On March 27, 2014 ZocDoc served a Rule 68 offer of judgment to Geismann: $6,000 plus reasonable attorneys’ fees and an injunction prohibiting further unlawful faxes to her number.
- Geismann rejected the offer because it did not extend relief to putative class members; she sought that the offer be extended to the class.
- ZocDoc moved to dismiss for lack of jurisdiction, arguing the Rule 68 offer mooted Geismann’s individual claim because it afforded all relief she could obtain.
- The Court accepted that the offer fully satisfied Geismann’s individual TCPA claim, entered judgment for $6,000 plus fees and injunction as to Geismann, and dismissed the action and denied class certification for lack of a live controversy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pre-certification Rule 68 offer to the named plaintiff that affords all individual relief moots the entire putative class action | Geismann argued the offer was insufficient because it did not provide relief to the putative class and refused it unless extended to class members | ZocDoc argued its Rule 68 offer satisfied all relief Geismann could obtain individually, thereby eliminating a live controversy and divesting the court of jurisdiction | Court held the offer mooted Geismann’s individual claim; dismissal for lack of subject-matter jurisdiction and denial of class certification because no named plaintiff had a live controversy |
| Whether the plaintiff’s refusal of a Rule 68 offer prevents mootness | Geismann contended refusal preserves her suit to pursue class claims | ZocDoc relied on precedents holding a refusal does not prevent mootness when the offer supplies all individual relief | Court held refusal is immaterial where the offer fully satisfies the plaintiff’s individual claim; refusal does not prevent mootness |
| Whether ‘pick-off’ or relation-back doctrines save the class action from mootness | Geismann argued pick-off concerns and relation-back could prevent mooting before certification | ZocDoc argued Genesis Healthcare and related authority limit relation-back and pick-off protections in this context | Court held those doctrines inapplicable; other potential class members can sue separately, so mooting the named plaintiff’s claim ends the action |
| Whether entry of judgment under Rule 68 leaves any live controversy for class certification | Geismann argued class certification motion should proceed despite the offer | ZocDoc argued the Rule 68 judgment removes any live claim for the named plaintiff, so certification is improper | Court denied class certification because a class action requires a named plaintiff with a live controversy at certification |
Key Cases Cited
- Doyle v. Midland Credit Mgmt., 722 F.3d 78 (2d Cir.) (refusal to accept an offer that gives a plaintiff all individual relief can support dismissal for lack of jurisdiction)
- Comer v. Cisneros, 37 F.3d 775 (2d Cir.) (if named plaintiffs’ claims become moot before class certification, the entire action generally becomes moot)
- Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (U.S.) (settlement or offer that moots the named plaintiff’s individual claim does not necessarily impair other potential plaintiffs’ ability to sue separately)
- Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (U.S.) (discussion of defendants ‘picking off’ plaintiffs by tendering settlement before class certification)
- Swan v. Stoneman, 635 F.2d 97 (2d Cir.) (a class action requires a named plaintiff with a live controversy at the time of class certification)