607 F. App'x 91
2d Cir.
2015

SUMMARY ORDER

Plaintiffs appeal from the judgment of the United States District Court for the Eastern District of New York (Wexler, /.), dismissing as moot their claims against Abercrombie & Fitch Co. and Abercrom-bie & Fitch Stores, Inc. (collectively, “Abercrombie”). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

On appeal from a judgment of dismissal for lack of subject matter jurisdiction, we review factual findings for clear error and legal conclusions de novo. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000).

1. The following analysis applies to offers of judgment: 1

(a) If the offer tenders less than complete relief, the plaintiff is free to accept or not. If such an offer is accepted, the court must enter judgment accordingly and terminate the case; if such an offer is not accepted, the case proceeds as usual. Tanasi v. New Alliance Bank, 786 F.3d 195 (2d Cir.2015). Under certain circumstances, an unaccepted offer may shift costs to the offeree. See Fed.R.Civ.P. 68(d).

(b) If the offer tenders complete relief, the court should (absent additional procedural complications) enter judgment pursuant to the terms of that offer, with or without the plaintiffs consent. McCauley v. Trans Union, L.L.C., 402 F.3d 340, 341 (2d Cir.2005); Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir.2013) (per curiam); accord Tanasi, 786 F.3d at 200. A defendant offering judgment for complete relief is, in essence, submitting to the entry of default judgment. Abrams v. Interco Inc., 719 F.2d 23, 32 (2d Cir.1983) (Friendly, /.). Just as a defendant may end the litigation by allowing default judgment, a defendant may always end the litigation by offering judgment for all the relief that is sought. Id.; McCauley, 402 F.3d at 342.

We have described an offer of judgment for complete, relief as “mooting” the case. However, the offer by itself does not moot anything, Tanasi, 786 F.3d at 200, since an offer cannot bind the defendant to provide relief, McCauley, 402 F.3d at 342. It is the entry of judgment pursuant to that offer that “moots” the case. Tanasi, 786 F.3d at 200; McCauley, 402 F.3d at 342. Mootness, in the constitutional sense, would require dismissal for lack of subject matter jurisdiction. An unaccepted offer of judgment, however, does not impair subject matter jurisdiction: the court retains jurisdiction to either enter judgment in favor of the plaintiff (if the offer tenders complete relief) or allow the casé to proceed (if the offer does not).

*93 2. In light of the foregoing, the district court erred by dismissing the case for lack of subject matter jurisdiction based on Abercrombie’s unaccepted offers of judgment to Hepler and Marceau. Accordingly, we vacate and remand for further proceedings consistent with this summary order.

Abercrombie’s offers of judgment have, by now, lapsed. Should Abercrombie renew those offers on remand, the court should consider the following:

(a) We have previously addressed the appropriate course of action when a court rules that certain relief is unavailable, and the defendant subsequently makes an offer of judgment for the remaining relief. ABN Amro Verzekeringen BV v. Geologistics Americas, Inc., 485 F.3d 85, 92-93, 95 (2d Cir.2007); Abrams, 719 F.2d at 32.

(b) As to the state law claims, the complaint alleges not only supplemental jurisdiction, 28 U.S.C. § 1367, but also original federal jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d).

For the foregoing reasons, and finding no merit in Abercrombie’s other arguments, we hereby VACATE the judgment of the district court and REMAND for further proceedings consistent with this summary order'.

Notes

1

. The offer need not comply with the requirements of Federal Rule of Civil Procedure 68. Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 79 (2d Cir.2013) (per curiam). It must, however, be an offer of judgment, not simply an offer of settlement. Cabala v. Crowley, 736 F.3d 226, 228-29 (2d Cir.2013) (per curiam).

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