909 F.3d 534
2d Cir.2018Background
- Geismann (a Missouri medical PC) sued ZocDoc in a putative TCPA class action alleging unsolicited advertising faxes and sought statutory damages and injunctive relief.
- ZocDoc made a Rule 68 offer of judgment early; Geismann rejected it because it offered no class relief. The district court dismissed as moot and entered judgment for the offered amount; Geismann appealed.
- While the appeal was pending, the Supreme Court decided Campbell‑Ewald, holding an unaccepted Rule 68 offer does not moot a case; the Second Circuit vacated and remanded.
- On remand, ZocDoc asked leave under Rule 67 to deposit funds (first $6,100, then total $20,000) into the court registry and sought entry of judgment based on that deposit; Geismann refused the funds.
- The district court permitted the Rule 67 deposit, entered judgment awarding $20,000 and an injunction to Geismann, and dismissed class claims for lack of standing; Geismann appealed again.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Rule 67 deposit alone can moot the plaintiff's individual claim | A Rule 67 deposit does not give the plaintiff an entitlement to relief because the funds are held by the court and the plaintiff remains "emptyhanded" until judgment | The deposit (plus willingness to accept injunctive relief) supplies complete relief and thus moots the claim and defeats class standing | Deposit alone does not moot the claim; Rule 67 is escrow and does not confer entitlement to plaintiff |
| Whether district court may enter judgment/dismiss class claims based on Rule 67 deposit before resolving class certification | Geismann argued the court must decide class certification first because a would‑be class representative must have a live claim to prove adequacy and typicality | ZocDoc contended that depositing full individual relief allows the court to enter judgment and render the case moot, so class claims can be dismissed | Court must resolve class‑certification motion before entering judgment and dismissing class claims based solely on individual relief deposit |
| Proper legal analysis: mootness vs. other doctrines (e.g., accord and satisfaction/default judgment) | Mootness analysis is inappropriate where plaintiff has not actually received relief; deposit does not make plaintiff "emptyhanded" | Defendant maintained surrendering complete relief permits entry of judgment and moots the case; analogous doctrines allow termination | The court treated Rule 67 deposit as insufficient to moot; a post‑judgment entry of judgment satisfying the claim could moot it, but Rule 67 deposit alone is just a procedural escrow |
| Whether district court erred in permitting Rule 67 deposit and entering judgment | Geismann argued the district court erred because deposit could not strip its class‑representative stake without first ruling on certification | ZocDoc argued the district court properly exercised discretion to accept deposit and then enter judgment to effectuate Campbell‑Ewald hypothetical | Court vacated the judgment and held permitting deposit and dismissing the action on that basis was error; remanded for further proceedings |
Key Cases Cited
- Campbell‑Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) (an unaccepted Rule 68 offer is a legal nullity and does not moot the plaintiff's claim)
- Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017) (Rule 67 tender is like an unaccepted offer; deposit does not entitle plaintiff to funds)
- Tanasi v. New Alliance Bank, 786 F.3d 195 (2d Cir. 2015) (district court may enter judgment when defendant surrenders complete relief, rendering individual claims moot post‑judgment)
- Chen v. Allstate Ins. Co., 819 F.3d 1136 (9th Cir. 2016) (a plaintiff remains "emptyhanded" until it actually receives all relief; mere offer or deposit does not moot injunctive claim)
- Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013) (discusses when surrender of relief prevents further class litigation; plaintiff's stake in certification remains)
- LTV Corp. v. Gulf States Steel, Inc. of Ala., 969 F.2d 1050 (D.C. Cir. 1992) (Rule 67 is an escrow mechanism and does not alter legal duties or entitlement)