268 F. Supp. 3d 599
S.D.N.Y.2017Background
- Geismann (a Missouri professional corporation) sued ZocDoc under the TCPA for receiving two unsolicited faxes, seeking statutory damages and an injunction and moving for class certification.
- ZocDoc filed a Rule 68 offer of judgment for $6,000 plus fees and an injunction; Geismann rejected it; ZocDoc removed to federal court and sought transfer to SDNY.
- The district court originally entered judgment for ZocDoc on the ground that the Rule 68 offer mooted Geismann’s claims; the Second Circuit reversed after the Supreme Court decided Campbell‑Ewald.
- Campbell‑Ewald held that an unaccepted Rule 68 offer does not moot a plaintiff’s claim and left open whether a defendant’s actual deposit/tender of full relief would moot the claim.
- ZocDoc then sought leave to deposit an additional $13,900 with the Clerk (bringing total to $20,000) and to file for summary judgment asking the court to enter judgment for Geismann for the full individual recovery and dismiss class claims without prejudice.
- The district court granted ZocDoc leave to deposit the funds, reasoning that an actual tender of full individual relief can extinguish a plaintiff’s personal stake and thus render the action moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unaccepted Rule 68 offer moots the case | Geismann: an unaccepted Rule 68 offer does not moot the case | ZocDoc: its Rule 68 offer satisfied the claim and mooted controversy | Court: Campbell‑Ewald controls — an unaccepted Rule 68 offer does not moot the case |
| Whether an actual deposit/tender of full individual relief renders the case moot | Geismann: full tender does not moot a putative class action and may not extinguish named plaintiff’s claim pre‑certification | ZocDoc: deposit of full recovery into court extinguishes Geismann’s individual stake and moots the case | Court: A valid unconditional tender of full individual relief can extinguish the plaintiff’s personal claim and render the action moot |
| Whether Rule 68 contract/acceptance principles govern after an actual tender | Geismann: Rule 68 principles still control; acceptance matters | ZocDoc: tender is not an offer under contract law but performance that extinguishes the claim | Court: Distinguishes offer (Rule 68) from tender (performance); tender invokes Article III mootness analysis rather than contract law |
| Effect on class allegations if individual claim is tendered and judgment entered | Geismann: tender should not be used to ‘pick off’ class claims pre‑certification | ZocDoc: seeks dismissal of class allegations without prejudice after tender and entry of judgment on individual claim | Court: Permitted to accept tender and pursue termination of individual claim; notes unresolved circuit tension and caution about potential abuse when multiple plaintiffs exist |
Key Cases Cited
- Campbell‑Ewald Co. v. Gomez, 136 S. Ct. 663 (Sup. Ct.) (an unaccepted Rule 68 offer does not moot a plaintiff’s case; reserved question whether actual tender/deposit would moot)
- Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (Sup. Ct.) (Justice Kagan’s dissent quoted on the legal-nullity principle for unaccepted offers)
- Geismann v. ZocDoc, Inc., 850 F.3d 507 (2d Cir.) (reversing district court’s mootness ruling post‑Campbell‑Ewald)
- Tanasi v. New All. Bank, 786 F.3d 195 (2d Cir.) (precedent permitting entry of judgment when defendant deposits full amount with the clerk)
- Cabala v. Crowley, 736 F.3d 226 (2d Cir.) (district courts have entered judgment after defendant proffers full relief via clerk deposit)