Radha Geismann, M.D., P.C. v. ZocDoc, Inc., No. 17-2692 (2d Cir. 2018)
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Geismann filed a Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, class action complaint, alleging that it received unsolicited faxes from ZocDoc. After Geismann moved for class certification, ZocDoc made a settlement offer as to Geismann’s individual claims (FRCP 68), whichGeismann rejected. The court entered judgment in the amount and under the terms of the unaccepted offer and dismissed the action as moot. On remand, ZocDoc deposited $20,000 (FRCP 67) in "full settlement of Geismannʹs individual claims," in the courtʹs registry. The court again entered judgment in Geismannʹs favor and dismissed the action. The Second Circuit vacated. There is no material difference between a plaintiff rejecting a Rule 67 tender of payment and a Rule 68 offer of payment; the parties retained the same stake in the litigation they had at the outset. A claim becomes moot when a plaintiff actually receives all of the relief he could receive through litigation. The Rule 67 procedure provides for safekeeping of disputed funds pending the resolution of litigation, but it cannot alter the parties' contractual relationships and legal duties. Even if the court first entered judgment enjoining ZocDoc from further faxes and directing the clerk to send Geismann the $20,000, that would not have afforded Geismann complete relief. By rejecting the settlement offer, Geismann effectively stated that its suit “is about more than the statutory damages," it is also about the reward earned by serving as lead plaintiff. Nothing forces it to accept ZocDoc’s valuation of that part of the case.
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17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2017 4 (Argued: May 14, 2018 Decided: November 27, 2018) 5 Docket No. 17 2692 1 6 9 RADHA GEISMANN, M.D., P.C., individually and on behalf of all others similarly situated, Plaintiff Appellant, 10 v. 11 ZOCDOC, INCORPORATED, Defendant Appellee, JOHN DOES 1 10, Defendants. 7 8 12 13 14 15 16 17 Before: SACK AND RAGGI, Circuit Judges, and GARDEPHE, District Judge. * Radha Geismann, M.D., P.C., appeals from a judgment of the United States 18 19 District Court for the Southern District of New York (Louis L. Stanton, Judge) 20 dismissing its putative class action suit against the defendant ZocDoc, Inc., 21 alleging violations of the Telephone Consumer Protection Act. ZocDoc first 22 attempted to render Geismann s action moot by submitting a settlement offer 23 that would afford Geismann complete relief for its individual claims. Geismann Judge Paul G. Gardephe, of the United States District Court for the Southern District of New York, sitting by designation. * 1 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 rejected the offer. The district court subsequently entered judgment in 2 Geismann s favor in the amount and under the terms of the unaccepted offer and 3 dismissed the action for lack of subject matter jurisdiction on the ground that it 4 had become moot. We vacated the district court s judgment and remanded the 5 case to the district court for further proceedings. ZocDoc again attempted to 6 moot Geismann s action by depositing $20,000, in full settlement of Geismann s 7 individual claims, in the district court s registry. The district court concluded 8 that ZocDoc s action successfully mooted Geismann s individual claim and 9 putative class action, and accordingly entered judgment in Geismann s favor and 10 dismissed the action. We conclude that the district court should not have 11 entered judgment based on ZocDoc s deposit, nor should it have dismissed 12 Geismann s action on that basis. Accordingly, the district court s judgment is: VACATED and REMANDED for further proceedings. 13 GLENN L. HARA (David M. Oppenheim, on the brief), Anderson + Wanca, Rolling Meadows, Illinois, for Plaintiff Appellant. 14 15 16 BLAINE C. KIMREY (Charles J. Nerko, Vedder Price P.C., New York, New York, Bryan K. Clark, on the brief), Vedder Price P.C., Chicago, Illinois, for Defendant Appellee. 17 18 19 20 21 2 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. Adina H. Rosenbaum, Scott L. Nelson, Public Citizen Litigation Group, Washington, D.C., for Amicus Curiae Public Citizen, Inc., in support of Plaintiff Appellant. 1 2 3 4 Brian Melendez, Barnes & Thornburg LLP, Minneapolis, Minnesota, for Amicus Curiae ACA International, in support of Defendant Appellee. 5 6 7 8 9 SACK, Circuit Judge: Radha Geismann, M.D., P.C. ( Geismann ) filed a class action complaint 10 11 against ZocDoc, Inc. ( ZocDoc ) in the United States District Court for the 12 Southern District of New York, alleging that it1 received unsolicited telecopies 13 (colloquially and hereinafter faxes ) from ZocDoc in violation of the Telephone 14 Consumer Protection Act ( TCPA ), 47 U.S.C. § 227 et seq. After Geismann filed 15 the complaint and moved for class certification, ZocDoc made a settlement offer 16 to Geismann as to its individual claims pursuant to Federal Rule of Civil 17 Procedure 68; Geismann rejected the offer. The district court (Louis L. Stanton, 18 Judge) dismissed the action for lack of subject matter jurisdiction, Radha Geismann, 19 M.D., P.C. v. ZocDoc, Inc., 60 F. Supp. 3d 404 (S.D.N.Y 2014) ( Geismann I ), 20 reasoning that the rejected offer rendered the entire action moot. The court Because the plaintiff is Radha Geismann, M.D., P.C. , we refer to the plaintiff as it rather than she or her. 1 3 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 therefore entered judgment in favor of Geismann. Geismann appealed. Relying 2 in large part on the Supreme Court s decision in Campbell Ewald Co. v. Gomez, 136 3 S. Ct. 663 (2016), we vacated the judgment and remanded the matter to the 4 district court for further proceedings. See Radha Geismann, M.D., P.C. v. ZocDoc, 5 Inc., 850 F.3d 507 (2d Cir. 2017) ( Geismann II ). On remand, ZocDoc attempted to use another procedural rule to settle 6 7 Geismann s individual claims: ZocDoc requested and obtained leave from the 8 district court to deposit funds in the court s registry pursuant to Federal Rule of 9 Civil Procedure 67. The funds that ZocDoc deposited with the court represented 10 what ZocDoc regarded as the maximum possible damages Geismann could 11 receive for its individual TCPA claims. The district court agreed with ZocDoc 12 that its deposit mooted Geismann s individual claim, and accordingly entered 13 judgment in favor of Geismann and dismissed what remained of the action. 14 Radha Geismann, M.D., P.C. v. ZocDoc, Inc., 268 F. Supp. 3d 599 (S.D.N.Y. 2017) 15 ( Geismann III ). We conclude that this was error and return the case to the 16 district court again for further proceedings. 4 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. BACKGROUND 1 2 The Complaint 3 Geismann, a Missouri professional corporation, alleges that it received 4 from ZocDoc, a Delaware corporation, two unsolicited faxes advertising a 5 “patient matching service” for doctors. See Corrected First Amended Class 6 Action Complaint ¶¶ 8 9, at Joint Appendix ( J.A. ) 3 & Exhibits A and B to the 7 Corrected First Amended Class Action Complaint, at J.A. 17–18. Both faxes 8 stated, in a legend at the bottom of the fax, that if the recipient wished to “stop 9 receiving faxes,” he or she could call the domestic telephone number provided. 10 See Exhibits A and B to the Corrected First Amended Class Action Complaint, at 11 J.A. 17–18. 12 In 2014, Geismann filed this putative class action against ZocDoc in 13 Missouri state court, alleging that these faxes were unsolicited advertisements in 14 violation of the TCPA, 47 U.S.C. § 227. The TCPA prohibits, inter alia, the use of 15 any telephone facsimile machine, computer, or other device to send, to a 16 telephone facsimile machine, an unsolicited advertisement, unless the sender 17 and recipient have an established business relationship, the recipient 18 volunteered its fax number directly to the sender or through voluntary 5 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 participation in a directory or other public source, or the fax meets specified 2 notice requirements. Id. § 227(b)(1)(C). The TCPA defines unsolicited 3 advertisement as any material advertising the commercial availability or 4 quality of any property, goods, or services which is transmitted to any person 5 without that person s prior express invitation or permission, in writing or 6 otherwise. Id. § 227(a)(5). Geismann sought between $500 and $1,500 in 7 statutory damages for each alleged TCPA violation, an injunction prohibiting 8 ZocDoc from sending similar faxes in the future, and costs.2 On the same day that it filed its complaint in state court, Geismann filed a 9 10 separate motion for class certification pursuant to Missouri law. Geismann 11 defined the proposed class as [a]ll persons who on or after four years prior to 12 the filing of this action, were sent telephone facsimile messages of material 13 advertising [a] patient matching service for doctors by or on behalf of 14 Defendant. Radha Geismann, M.D., P.C. v. ZocDoc, Inc., No. 14 cv 7009 15 (S.D.N.Y.), ECF No. 5, at 2. The TCPA includes a private right of action for injunctive relief and damages in the amount of actual monetary loss or $500 . . . for each such violation, whichever is greater, to be tripled at the court s discretion if the defendant willfully or knowingly violated the statute. 47 U.S.C. § 227(b)(3). 2 6 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. On March 13, 2014, ZocDoc removed the action to the United States 1 2 District Court for the Eastern District of Missouri. Two weeks later, ZocDoc 3 made an offer of judgment to Geismann pursuant to Federal Rule of Civil 4 Procedure 683 for: (i) $6,000, plus reasonable attorney s fees, in satisfaction of 5 Geismann s individual claims, and (ii) an injunction prohibiting ZocDoc from 6 engaging in the alleged statutory violations in the future. Geismann rejected 7 ZocDoc s offer because it provided no relief to the other members of the class. 8 ZocDoc subsequently moved to transfer the case to the United States District 9 Court for the Southern District of New York. The district court granted ZocDoc s 10 motion on August 26, 2014. 11 Geismann I Proceedings in the District Court 12 After the case was transferred to the Southern District of New York, 13 ZocDoc moved to dismiss the complaint, primarily on the ground that its offer of 14 judgment provided full satisfaction of Geismann s claim, so the action was moot. Rule 68 provides that [a]t 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. Fed. R. Civ. P. 68(a). If the offer is accepted, either party may then file the offer and notice of acceptance, plus proof of service, at which time the clerk must enter judgment. Id. A party s decision not to accept a Rule 68 offer of judgment comes with consequences: if the judgment that the offeree ultimately obtains is not more favorable than the unaccepted offer, the offeree is on the hook for the offeror s post offer costs. Id. 68(d). 3 7 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 On September 26, 2014, the district court granted ZocDoc s motion to dismiss for 2 lack of subject matter jurisdiction, reasoning that, as to Geismann s individual 3 claims, ZocDoc s Rule 68 offer more than satisfies any recovery Geismann could 4 make, so there remain[ed] no case or controversy. Geismann I, 60 F. Supp. 3d 5 at 406–07. The court denied Geismann s motion for class certification, reasoning 6 that Geismann could not adequately represent the class without a claim of its 7 own. Id. at 407. The court accordingly entered judgment in the amount and 8 under the terms of the rejected settlement offer, and dismissed the action as 9 moot. Id. 10 Geismann timely appealed. 11 Geismann II 12 On January 20, 2016, after we held oral argument but before we issued a 13 decision, the Supreme Court handed down its decision in Campbell Ewald Co. v. 14 Gomez, 136 S. Ct. 663 (2016). Campbell Ewald s procedural posture was similar to 15 the Geismann I appeal then before us: The plaintiff filed a putative TCPA class 16 action and the defendant made a Rule 68 offer of judgment to satisfy the 17 plaintiff s individual claims, which the plaintiff rejected. Id. at 667–68. The 18 Supreme Court decided that the defendant s unaccepted Rule 68 offer did not 8 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 render the action moot because [a]n unaccepted settlement offer—like any 2 unaccepted contract offer—is a legal nullity, with no operative effect on the 3 plaintiff s individual claim. Id. at 670 (internal quotation marks omitted). With 4 no settlement offer still operative, the Supreme Court reasoned, the parties 5 remained adverse and both retained the same stake in the litigation they had at 6 the outset. Id. at 670 71. The Supreme Court further noted that [w]hile a class 7 lacks independent status until certified, a would be class representative with a 8 live claim of her own must be accorded a fair opportunity to show that 9 certification is warranted. Id. at 672 (internal citation omitted). However, the 10 Supreme Court left open the possibility that the result would be different if a 11 defendant deposits the full amount of the plaintiff s individual claim in an 12 account payable to the plaintiff, and the court then enters judgment for the 13 plaintiff in that amount, reserving that question for a case in which it is not 14 hypothetical. Id. On February 1, 2016, while Geismann s appeal in Geismann II remained 15 16 pending and after the Supreme Court issued its decision in Campbell Ewald, 17 ZocDoc filed a motion with the district court seeking to deposit a check in the 18 amount of $6,100 payable to the clerk of the district court in satisfaction of 9 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 judgment. The district court granted the request, reasoning that the Supreme 2 Court s decision in Campbell Ewald favor[s] deposit of judgments with the Court 3 in these circumstances. Order for Deposit in Interest Bearing Account, filed 4 February 3, 2016, at J.A. 19–20. 5 On March 9, 2017, we decided Geismann s appeal. See Geismann II, 850 6 F.3d 507. We vacated the district court s judgment and remanded the case for 7 further proceedings. We concluded that [i]n light of Campbell Ewald, the district 8 court s conclusion in this case that Geismann s claim was mooted by the amount 9 and content of the Rule 68 offer made by ZocDoc [was] incorrect. Id. at 512 10 (quoting Geismann I, 60 F. Supp. 3d at 407). We explained that, notwithstanding 11 ZocDoc s post judgment deposit with the district court, the case did not match[] 12 the hypothetical posed by Campbell Ewald, reasoning that because ZocDoc s 13 rejected offer of settlement had no continuing efficacy, the deposit was made 14 pursuant to and in furtherance of a judgment that should not have been entered 15 in the first place. Id. at 512, 514 (internal quotation marks omitted). We 16 declined to say whether judgment entered on the basis of a deposit would be 17 permissible. See id. at 514–15 & n.16. We further determined that Geismann s 18 class claim should not have been dismissed because its individual claim 10 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 remained alive. See id. at 515. We directed that, on remand, [a]lthough the 2 district court may, in its discretion, permit ZocDoc to deposit with the court any 3 part of the relief sought, under Federal Rule of Civil Procedure 67, the basis for 4 so granting the defendant leave to deposit must not be inconsistent with this 5 opinion. Id. 6 Geismann III Proceedings in the District Court 7 On April 26, 2017, ZocDoc filed a letter motion with the district court 8 seeking leave to deposit an additional $13,900 with the court under Federal Rule 9 of Civil Procedure 67, explaining that ZocDoc hereby makes an open ended 10 offer to Geismann with no expiration date of a total of $20,000.00 (twenty 11 thousand dollars) and for all individual injunctive relief Geismann seeks in the 12 operative complaint. 4 J.A. 42. ZocDoc further urged that after depositing the 13 funds, it would seek to perfect the Campbell Ewald hypothetical by filing a 14 motion for summary judgment in which it will ask the Court to enter a judgment 15 in favor of Geismann and against ZocDoc for the full amount of Geismann s 16 individual claims and to dismiss the class allegations without prejudice. J.A. 43. ZocDoc argued in the letter motion that although its original deposit of $6,100.00 is enough to fully satisfy Geismann s individual monetary claims, ZocDoc has made the $20,000.00 offer to remove any possible argument that Geismann may be entitled to more. J.A. 42. 4 11 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 Geismann rejected ZocDoc s offer, filed a letter opposing the motion to deposit, 2 and urged the district court to proceed to consider class certification. On July 28, 2017, the district court granted ZocDoc leave to deposit under 3 4 Rule 67 and to file a motion for summary judgment. See Geismann III, 268 F. 5 Supp. 3d at 601. The district court reasoned that [t]here is a consequential 6 difference between on the one hand a defendant s offer of an adequate amount in 7 an offer of judgment whose utility depends on its being timely accepted under 8 principles of contract and Fed. R. Civ. P. 68, and on the other hand a tender . . . 9 which independently and fully satisfies a plaintiff s claim. Id. at 603–04. The 10 district court then granted ZocDoc leave to deposit funds pursuant to Rule 67 11 because the deposit would enable ZocDoc to make a cognizable, good faith 12 argument that this case should be terminated on mootness grounds. Id. at 605. 13 On August 25, 2017, ZocDoc filed a motion for summary judgment, 14 arguing that its deposit and acquiescence to injunctive relief had made 15 Geismann s claim moot and that the district court should therefore enter 16 judgment in Geismann s favor. Radha Geismann, M.D., P.C. v. ZocDoc, Inc., No. 17 14 cv 7009, ECF No. 77, at 1–4 ( Geismann lacks standing because ZocDoc has 12 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 tendered more than complete relief to Geismann and thus satisfied, or 2 extinguished, Geismann s claim. ). Geismann opposed ZocDoc s motion. On September 25, 2017, the district court issued a two page judgment 3 4 granting ZocDoc s motion for summary judgment in favor of Geismann. The 5 court ordered that, [p]ursuant to this Court s Opinion and Order dated July 28, 6 2017, Geismann shall recover from defendant ZocDoc, Inc. the sum of Twenty 7 Thousand Dollars, and that ZocDoc is enjoined, restrained, and forbidden from 8 sending to plaintiff any faxes of any nature without express written prior 9 approval from Plaintiff. Judgment at 1, J.A. 108. The district court further 10 ordered that Geismann s motion for class certification and all claims asserted on 11 behalf of a purported class, are dismissed without prejudice for [Geismann s] 12 lack of standing to represent or belong to the class. Id. at 2, J.A. 109. The district 13 court directed the clerk to mail a check to the plaintiff in the amount due and to 14 close the case. This timely appeal followed.5 After the notice of appeal was filed, on October 5, 2017, the clerk sent a check by overnight mail to Geismann, but Geismann rejected payment and returned the check to the clerk s office. The district court subsequently directed the clerk to invest the returned funds in an interest bearing account. 5 13 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. DISCUSSION 1 On appeal, Geismann challenges the district court s orders insofar as they 2 3 permitted ZocDoc to deposit funds pursuant to Rule 67, granted ZocDoc s 4 motion for summary judgment, and dismissed Geismann s motion for class 5 certification. As noted above, the district court based all three decisions on its 6 conclusion that ZocDoc s Rule 67 deposit rendered Geismann s action moot. The 7 focus of our analysis is on whether that conclusion was correct. We begin with the Supreme Court s decision in Campbell Ewald. The 8 9 question before it was whether an unaccepted offer to satisfy the named 10 plaintiff s individual claim [is] sufficient to render a case moot when the 11 complaint seeks relief on behalf of the plaintiff and a class of persons similarly 12 situated. 136 S. Ct. at 666. As the Seventh Circuit later observed, nothing in 13 this question [was] necessarily limited to a settlement offer presented pursuant to 14 Federal Rule of Civil Procedure 68. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 15 544 (7th Cir. 2017). Rather, as the Seventh Circuit noted, id., the Supreme Court 16 relied on a fundamental principle of contract law: An unaccepted offer is not 17 binding on the offeree. Based on this principle, the Court concluded that the 18 defendant s settlement bid and Rule 68 offer of judgment, once rejected, had no 14 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 continuing efficacy. Campbell Ewald, 136 S. Ct. at 670. Like the Seventh Circuit, 2 we see no material difference between a plaintiff rejecting a tender of payment 3 (pursuant to Rule 67) and an offer of payment (pursuant to Rule 68). Indeed, 4 other than their labels, once rejected, the two do not differ in any meaningful 5 way: In each case, all that exists is an unaccepted contract offer, and as the 6 Supreme Court recognized, an unaccepted offer is not binding on the offeree. 7 Fulton Dental, 860 F.3d at 545. Moreover, a key factor underlying the Supreme Court s holding in 8 9 Campbell Ewald was that the plaintiff remained emptyhanded once the 10 defendant s Rule 68 settlement offer expired. 136 S. Ct. at 672. An unaccepted 11 offer provides a plaintiff no entitlement . . . to relief, so the parties remained 12 adverse; both retained the same stake in the litigation they had at the outset. Id. 13 at 670–71. In other words, a lawsuit—or an individual claim—becomes moot 14 when a plaintiff actually receives all of the relief he or she could receive on the 15 claim through further litigation. Chen v. Allstate Ins. Co., 819 F.3d 1136, 1144 (9th 16 Cir. 2016) (emphasis in original); see also Gibson v. Brooks, 175 F. App x 491, 491 17 (2d Cir. 2006) (summary order) ( Because the only relief sought by plaintiff is a 18 remand for a new trial, and because plaintiff has already received the benefit of a 15 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 retrial . . . , we hold that plaintiff s appeal is moot and must be dismissed. 2 (emphasis in original)). The deposit of funds in the district court registry, without more, leaves a 3 4 plaintiff “emptyhanded” because the deposit alone does not provide relief to him 5 or her. “The Rule 67 procedure provides a place of safekeeping for disputed 6 funds pending the resolution of a legal dispute, but it cannot be used as a means 7 of altering the contractual relationships and legal duties of the parties.” LTV 8 Corp. v. Gulf States Steel, Inc. of Ala., 969 F.2d 1050, 1063 (D.C. Cir. 1992); see also 9 Alstom Caribe, Inc. v. George P. Reintjes Co., 484 F.3d 106, 113 (1st Cir. 2007) (“The 10 core purpose of Rule 67 is to relieve a party who holds a contested fund from 11 responsibility for disbursement of that fund among those claiming some 12 entitlement thereto.”). Indeed, on its face, Rule 67 “is just a procedural 13 mechanism that allows a party to use the court as an escrow agent.” Fulton 14 Dental, 860 F.3d at 544. It does not itself determine who is entitled to the money. Rule 67 explicitly permits a party to deposit money “whether or not that 15 16 party claims any of it” and directs that the funds be held in accordance with 17 other statutory provisions, Fed. R. Civ. P. 67, including those that require the 18 funds to be “deposited . . . in the name and to the credit of [the] court” and that 16 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 permit their withdrawal only “by order of court,” 28 U.S.C. §§ 2041, 2042. These 2 provisions make clear that a party’s deposit of funds with the court does not 3 entitle another party to collect those funds. 4 In short, the Rule 67 procedure “is nothing like a bank account in the 5 plaintiff’s name—that is, an account in which the plaintiff has a right at any time 6 to withdraw funds.” Fulton Dental, 860 F.3d at 545; cf. Campbell Ewald, 136 S. Ct. 7 at 672 (leaving open hypothetical where defendant deposits full amount “in an 8 account payable to plaintiff” (emphasis added)). By itself, then, ZocDoc’s deposit of 9 funds cannot be considered to have rendered Geismann’s individual claims 10 moot. We also doubt that mootness is the correct legal concept to employ in 11 12 analyzing the effect of ZocDoc’s Rule 67 deposit. “A case becomes moot only 13 when it is impossible for a court to grant any effectual relief whatever to the 14 prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 15 (2012) (internal quotation marks omitted). By this standard, ZocDoc’s Rule 67 16 deposit, by itself, could not have rendered Geismann’s action moot. Geismann 17 began this suit seeking damages and an injunction; after ZocDoc’s deposit, 18 Geismann had not yet “actually receive[d]” any funds, and although ZocDoc 17 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 offered to submit to an injunction, it had not committed to stop sending the 2 offending faxes.6 Chen, 819 F.3d at 1144–46 (observing that expression of 3 willingness to be enjoined does not mean plaintiff “received relief on his 4 individual injunctive claim”). At that point in the litigation, the district court 5 could still provide these remedies—and did so when it subsequently entered 6 judgment in Geismann’s favor on September 25, 2017. That judgment, which 7 stipulated that a specified amount of damages should be paid and that an 8 injunction should be entered, “is quintessentially a ruling on the merits of a 9 case.” Fulton Dental, 860 F.3d at 543. Accordingly, Geismann’s individual claims 10 could not have been “mooted” prior to that time by the Rule 67 deposit. While Rule 67 itself does not affect the vitality of a plaintiff’s claims, those 11 12 claims may of course become moot in other ways. Our decisions appear to 13 recognize that where a defendant surrenders to “complete relief” in satisfaction 14 of a plaintiff’s claims, the district court may enter default judgment against the We view ZocDoc’s Rule 67 deposit as similar in certain respects to an accord pursuant to the doctrine of accord and satisfaction. We have explained that “[a]n agreement of one party to give, and another party to accept, in settlement of an existing or matured claim, a sum or performance other than that to which he believes himself entitled, is an accord,” and “[t]he execution of the agreement is a satisfaction.” May Dep’t Stores Co. v. Int’l Leasing Corp., 1 F.3d 138, 140 (2d Cir. 1993). An accord and satisfaction is an affirmative defense, but does not by itself render a case moot. See Fed. R. Civ. P. 8(c)(1) (recognizing accord and satisfaction as an affirmative defense). 6 18 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 defendant—even without the plaintiff’s agreement thereto—and “[t]hen, after 2 judgment is entered, the plaintiff’s individual claims will become moot for 3 purposes of Article III.” Tanasi v. New Alliance Bank, 786 F.3d 195, 200 (2d Cir. 4 2015) (emphasis in original); see also Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir. 5 2013) (describing this process as “the typically proper disposition” under such 6 circumstances); McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir. 2005) 7 ( [A] [default] judgment would remove any live controversy from this case and 8 render it moot. ) This resolution recognizes, in part, a district court’s discretion 9 to “halt a lawsuit by entering judgment for the plaintiff when the defendant 10 unconditionally surrenders and only the plaintiff’s obstinacy or madness 11 prevents [it] from accepting total victory.” Genesis Healthcare Corp. v. Symczyk, 12 569 U.S. 66, 85 (2013) (Kagan, J., dissenting); see also McCauley, 402 F.3d at 342 13 (recognizing plaintiff “is not entitled to keep litigating [its] claim simply because 14 [the defendant] has not admitted liability”). But, a district court may not take 15 that approach unless the defendant surrenders to the “complete relief” sought by 16 the plaintiff, Tanasi, 786 F.3d at 200 (emphasis added), and “a judgment 17 satisfying an individual claim does not give a plaintiff . . . exercising [its] right to 18 sue on behalf of other[s] . . . ‘all that [it] has . . . requested in the complaint (i.e., 19 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 relief for the class),’” Genesis Healthcare, 569 U.S. at 85 (Kagan, J., dissenting) 2 (quoting Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 341 (1980) (Rehnquist, 3 J., concurring)); see Chen, 819 F.3d at 1147 (noting previous Supreme Court 4 decisions’ observation that a named plaintiff retains a “personal stake in 5 obtaining class certification”). That is the case here. Even if the district court first entered judgment— 6 7 enjoining ZocDoc from further faxes and directing the clerk of court to send 8 Geismann a check for $20,000—and thereafter deemed Geismann’s claims moot, 9 that resolution would not have afforded Geismann complete relief. By rejecting 10 the settlement offer and returning the clerk’s check, Geismann effectively stated 11 that its suit “is about more than the statutory damages to which it believes it is 12 entitled; it is also about the additional reward that it hopes to earn by serving as 13 the lead plaintiff for a class action. Nothing forces it to accept [ZocDoc’s] 14 valuation of the latter part of the case.” Fulton Dental, 860 F.3d at 545. Indeed, as 15 Campbell Ewald states, “a would be class representative with a live claim of [its] 20 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 own must be accorded a fair opportunity to show that certification is warranted.” 2 Campbell Ewald, 136 S. Ct. at 672 (emphasis added). We therefore conclude that the district court must resolve the pending 3 4 motion for class certification before entering judgment and declaring an action 5 moot based solely on relief provided to a plaintiff on an individual basis. If the 6 motion is granted,7 the class action may proceed. A conclusion otherwise would 7 risk placing the defendant in control of a putative class action, effectively 8 allowing the use of tactical procedural maneuvers to thwart class litigation at 9 will. See Roper, 445 U.S. at 339 (“Requiring multiple plaintiffs to bring separate 10 actions, which effectively could be ‘picked off’ by a defendant’s tender of 11 judgment before an affirmative ruling on class certification could be obtained, 12 obviously would frustrate the objectives of class actions[.]”). For these reasons, we conclude that ZocDoc’s Rule 67 deposit did not 13 14 provide Geismann with an entitlement to complete relief and therefore did not 15 render its TCPA claim moot. The district court should not have entered 16 judgment based on ZocDoc’s deposit, nor should it have dismissed Geismann’s 7 Ultimately subject, of course, to a possible appeal to this Court. 21 17 2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 action. The fact that Geismann’s claim is not moot means both that its own claim 2 is still viable and that the door remains open for possible class certification. CONCLUSION 3 4 We have considered the parties remaining arguments on appeal and find 5 them to be without merit. For the foregoing reasons, we VACATE the judgment 6 of the district court and REMAND for further proceedings. 22
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