Radha Geismann, M.D., P.C. v. ZocDoc, No. 14-3708 (2d Cir. 2017)
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Plaintiff filed suit against ZocDoc, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. Plaintiff's suit stemmed from two unsolicited telecopies (faxes), it allegedly received from ZocDoc. ZocDoc made a settlement offer to plaintiff as to its individual claims pursuant to Federal Rule of Civil Procedure 68, but plaintiff rejected the offer. The district court subsequently granted ZocDoc's motion to dismiss the action for lack of subject matter jurisdiction based on the ground that its offer afforded plaintiff complete relief, thus mooting the action. The court concluded, however, that the action was not and is not moot. The court held that an unaccepted Rule 68 offer of judgment was, regardless of its terms, a legal nullity. In this case, the district court entered a judgment that should not have been entered in the first place, and ZocDoc then more than one year later deposited an amount in satisfaction of that errant judgment in an account payable to plaintiff. Therefore, the court vacated and remanded.
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14 3708 Geismann v. ZocDoc, Inc. 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2014 (Argued: June 5, 2015 4 Final Submission: February 1, 2016 5 Decided: March 9, 2017) 6 Docket No. 14 3708 7 8 9 10 Radha Geismann, M.D., P.C., individually and on behalf of all others similarly situated, Plaintiff Appellant, 11 v. 12 13 14 15 16 ZocDoc, Incorporated, Defendant Appellee, John Does 1 10, Defendants.* 17 18 Before: SACK, HALL, and CARNEY, Circuit Judges. Radha Geismann, M.D., P.C., appeals from a judgment of the United States 19 20 District Court for the Southern District of New York (Louis L. Stanton, Judge) 21 dismissing its putative class action suit against ZocDoc, Inc., alleging violations 22 of the Telephone Consumer Protection Act. The district court concluded that a 23 settlement offer, made by ZocDoc but rejected by Geismann, would have The Clerk of Court is respectfully directed to amend the official caption to conform to the caption as it appears above. * 14 3708 Geismann v. ZocDoc, Inc. 1 afforded Geismann complete relief, notwithstanding a pending class certification 2 motion. The court entered judgment in Geismann s favor in the amount and 3 under the terms of the unaccepted offer and dismissed the action for lack of 4 subject matter jurisdiction on the ground that it had become moot. We conclude 5 that the settlement offer did not render the action moot and that judgment 6 should not have been entered nor the action dismissed on that basis. The 7 judgment of the district court is therefore: 8 VACATED and REMANDED. 9 10 11 GLENN L. HARA (David M. Oppenheim, on the brief), Anderson + Wanca, Rolling Meadows, Illinois, for Plaintiff Appellant. 12 13 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 SACK, Circuit Judge: Plaintiff appellant Radha Geismann, M.D., P.C. ( Geismann ), appeals 18 19 from the district court s dismissal of its putative class action against the 20 defendant appellee ZocDoc, Inc. ( ZocDoc ), alleging violations of the Telephone 21 Consumer Protection Act ( TCPA ), 47 U.S.C. § 227. Geismann s suit stems from 22 two unsolicited telecopies (colloquially and hereinafter faxes ) it allegedly 2 14 3708 Geismann v. ZocDoc, Inc. 1 received from ZocDoc. After Geismann filed a complaint and motion for class 2 certification, ZocDoc made a settlement offer to Geismann as to its individual 3 claims pursuant to Federal Rule of Civil Procedure 68. Geismann rejected the 4 offer. ZocDoc then moved to dismiss the action for lack of subject matter 5 jurisdiction on the ground that its offer afforded Geismann complete relief, 6 thereby mooting the action. The United States District Court for the Southern 7 District of New York (Louis L. Stanton, Judge) granted the motion, agreeing with 8 ZocDoc that the rejected offer, which the court concluded would have afforded 9 Geismann complete relief on its individual claims, rendered the entire action 10 moot, notwithstanding the pending class certification motion. The court entered 11 judgment in Geismann s favor under the terms offered by ZocDoc and dismissed 12 the action. While this appeal was pending, the district court granted ZocDoc 13 leave to deposit a check in the amount of $6,100.00 with the Clerk of the United 14 States District Court for the Southern District of New York in satisfaction of 15 judgment. We conclude that the action was not and is not moot. An unaccepted 16 17 Rule 68 offer of judgment is, regardless of its terms, a legal nullity. 3 14 3708 Geismann v. ZocDoc, Inc. 1 BACKGROUND Geismann, a Missouri corporation, alleges that it received from ZocDoc, a 2 3 Delaware corporation, two unsolicited faxes advertising a patient matching 4 service for doctors. Joint Appendix ( J.A. 1) 43, 57 58. Both faxes stated that if 5 the recipient wished to stop receiving faxes, he or she could call a domestic 6 telephone number provided in the fax. J.A. 57, 58. In 2014, Geismann filed a complaint in Missouri state court2 alleging that 7 8 these faxes violated the TCPA,3 which prohibits, inter alia, the use of any 9 telephone facsimile machine, computer, or other device to send, to a telephone 10 facsimile machine, an unsolicited advertisement, unless the sender and recipient 11 have an established business relationship, the recipient volunteered its fax J.A. hereinafter refers to the parties joint appendix filed in this Court on November 6, 2014. 2 The TCPA provides that [a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring [an action] in an appropriate court of that State. 47 U.S.C. § 227(b)(3). 3 The original complaint also included a claim under the Missouri Consumer Fraud and Deceptive Business Practices Act and a claim for conversion. The former was voluntarily dismissed prior to the filing of the Corrected First Amended Complaint. The district court did not directly address the latter, which was included in the Corrected First Amended Complaint. Geismann stated in its opposition to the motion to dismiss that it planned to dismiss voluntarily the conversion claim and therefore did not oppose its dismissal. The district court s dismissal for lack of subject matter jurisdiction following the entry of judgment applies to the entire action, including the conversion claim, making it a final decision[] over which we have jurisdiction. 28 U.S.C. § 1291. 1 4 14 3708 Geismann v. ZocDoc, Inc. 1 number directly to the sender or through voluntary participation in a directory 2 or other public source, or the fax meets certain specified notice requirements. 47 3 U.S.C. § 227(b)(1)(C); see also id. § 227(a)(5) ( The term unsolicited advertisement 4 means any material advertising the commercial availability or quality of any 5 property, goods, or services which is transmitted to any person without that 6 person s prior express invitation or permission, in writing or otherwise. ). The complaint requested between $500.00 and $1,500.00 in damages for 7 8 each TCPA violation, an injunction prohibiting ZocDoc from sending similar 9 faxes in the future, and costs. See id. § 227(b)(3) (providing a private right of 10 action for injunctive relief and damages in the amount of actual monetary loss 11 or $500 . . . for each [] violation, whichever is greater, to be tripled at the court s 12 discretion if the defendant willfully or knowingly violated [the statute] ). The complaint also requested that the case be treated as a class action. 13 14 Geismann filed a separate motion for class certification pursuant to Missouri law 15 the same day that it filed the complaint. The certification motion contained a 16 footnote explaining that Geismann filed the motion at the same time as the 17 complaint because the [d]efendants in class litigation have resorted to making 18 individual settlement offers to named plaintiffs before a class action is certified in 5 14 3708 Geismann v. ZocDoc, Inc. 1 an attempt to pick off the putative class representative and thereby derail the 2 class action litigation. Pl. s State Ct. Mot. for Class Certification at 1 n.1 (J.A. 19). 3 On March 13, 2014, ZocDoc removed the action to the United States 4 District Court for the Eastern District of Missouri, invoking federal question 5 jurisdiction. See 28 U.S.C. §§ 1331, 1367. Two weeks later, ZocDoc made an offer 6 of judgment to Geismann pursuant to Federal Rule of Civil Procedure 68 for (1) 7 $6,000, plus reasonable attorney s fees,4 in satisfaction of Geismann s individual 8 claims, and (2) an injunction prohibiting ZocDoc from engaging in the alleged 9 statutory violations in the future. On April 8, 2014, Geismann rejected the offer 10 but indicated that it would be willing to accept if ZocDoc would extend the same 11 offer to all members of the putative class action. ZocDoc declined. In August 2014, the district court granted ZocDoc s motion to transfer the 12 13 action to the Southern District of New York. See 28 U.S.C. § 1404(a). ZocDoc 14 then moved to dismiss the complaint, primarily on the ground that its offer of 15 judgment mooted the action. Geismann disputed, inter alia, whether the 16 unaccepted offer provided full satisfaction of [its] claim, arguing that the TCPA Geismann s initial complaint requested attorney s fees for its state law claims, not for its claim under the TCPA, a statute that the parties agree does not provide expressly for the award of attorney s fees or costs. Attorney s fees are not at issue in this appeal, and we do not take a position regarding the statutory availability of any such fees. 4 6 14 3708 Geismann v. ZocDoc, Inc. 1 provides for monetary damages per violation, not per fax, entitling it to 2 recover for each of the multiple violations in each fax. Pl. s Opp n to Def. s Mot. 3 to Dismiss at 14 n.4, Geismann v. ZocDoc, Inc., No. 14 cv 7009 (S.D.N.Y. Sept. 25, 4 2014), ECF No. 53. The district court disagreed, reasoning: 5 The monetary damages Geismann can recover individually under the TCPA for two unsolicited faxes [it] received . . . are limited to $1,000, which could be trebled to not more than $3,000 if the Court finds that it was a willful and knowing violation. ZocDoc s offer of judgment not only adds Geismann s attorneys fees, but is twice the trebled amount, and thus more than satisfies any recovery Geismann could make under the applicable statute. 6 7 8 9 10 11 12 13 Geismann v. ZocDoc, Inc., 60 F. Supp. 3d 404, 405 06 (S.D.N.Y. 2014). The court 14 entered judgment in the amount and under the terms of the rejected settlement 15 offer and dismissed the action as moot because, following the settlement offer 16 and entry of judgment, there remain[ed] no case or controversy. Id. at 407. 17 Geismann then brought this appeal. While the appeal was pending, 18 ZocDoc requested leave to deposit a check in the amount of $6,100.00 payable to 19 the clerk of the district court in satisfaction of judgment. Pl. s Ltr. Mot. at 2 3, 20 Geismann v. ZocDoc, Inc., No. 14 cv 7009 (S.D.N.Y. Feb. 1, 2016), ECF No. 60. The 21 court granted the request, reasoning that the Supreme Court s then recent 22 decision in Campbell Ewald Co. v. Gomez, U.S. , 136 S. Ct. 663 (2016), 7 14 3708 Geismann v. ZocDoc, Inc. 1 favor[s] deposit of judgments with the Court in these circumstances. Order for 2 Deposit in Interest Bearing Account at 2, Geismann v. ZocDoc, Inc., No. 14 cv 7009 3 (S.D.N.Y. Feb. 3, 2016), ECF No. 63.5 We ordered the parties to submit supplemental briefing addressing the 4 5 effect of Campbell Ewald on the issues presented in this appeal, and, on February 6 1, 2016, both parties made a responsive submission. ZocDoc argued that 7 following the entry of judgment and deposit of funds with the clerk of the court, 8 the plaintiff in this case, unlike the plaintiff in Campbell Ewald, was not left 9 emptyhanded. Def. s Supp. Br. at 2, 4. Geismann argued, inter alia, that 10 Campbell Ewald foreclosed the district court s disposition of this case because an 11 unaccepted settlement offer or offer of judgment does not moot a plaintiff s case 12 no matter how good the terms. Pl. s Supp. Br. at 1 (internal quotation marks 13 omitted). Geismann challenges this deposit order in a related appeal. See Geismann v. ZocDoc, Inc., No. 16 663 ( Geismann II ). Because the disposition of the present appeal renders moot the issues there raised, we have concurrently issued an order granting ZocDoc s motion to dismiss Geismann II as duplicative. 5 8 14 3708 Geismann v. ZocDoc, Inc. DISCUSSION 1 2 A. Standard of Review 3 In considering a dismissal for lack of jurisdiction, we review the district 4 court s factual findings for clear error and its legal conclusions de novo. APWU v. 5 Potter, 343 F.3d 619, 623 24 (2d Cir. 2003). 6 B. Jurisdiction 7 Our jurisdiction is limited by Article III, section 2, of the United States 8 Constitution to cases and controversies. Spencer v. Kemna, 523 U.S. 1, 7 (1998). 9 Where there is no unresolved case or controversy, mootness occurs and the 10 court—whether trial, appellate, or Supreme—loses jurisdiction over the suit, 11 which therefore must be dismissed. Russman v. Bd. of Educ. of Enlarged City Sch. 12 Dist. of City of Watervliet, 260 F.3d 114, 118 19 (2d Cir. 2001). 13 C. Campbell Ewald 14 Geismann argues that the district court erred in dismissing its complaint 15 for lack of subject matter jurisdiction because ZocDoc s proffered monetary 16 damages did not provide complete relief as to Geismann s individual claims; the 17 individual and putative class claims were therefore not moot. Alternatively, 18 Geismann asks us to conclude, as a matter of first impression in this Circuit, that 9 14 3708 Geismann v. ZocDoc, Inc. 1 even if the offer was complete as to its individual claims, an individual judgment 2 does not render moot a putative class claim, at least when a class certification 3 motion is pending. Cf. Tanasi v. New Alliance Bank, 786 F.3d 195, 198 (2d Cir. 4 2015), as amended (May 21, 2015), cert. denied, 136 S. Ct. 979 (2016) (declining to 5 address this question). While this appeal was pending before us, the Supreme 6 Court decided Campbell Ewald. Its decision made clear that an unaccepted Rule 7 68 offer of judgment does not render an action moot. Campbell Ewald, 136 S. Ct. 8 at 670 71. Because that decision controls our review and is dispositive of the case 9 at bar, we need not, and decline to, reach the issues raised by Geismann in its 10 pre Campbell Ewald submissions. 11 In Campbell Ewald, the plaintiff sought individual and class wide relief 12 under the TCPA, alleging that he and members of the putative class received 13 unsolicited text messages sent by the defendant in violation of the statute. Id. at 14 667. The defendant, like ZocDoc, proposed to settle [the plaintiff s] individual 15 claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 16 68, including an offer to pay costs, excluding attorney s fees, and $1,503 per 17 message, as well as a stipulated injunction in which [the defendant] agreed to 18 be barred from sending text messages in violation of the TCPA. Id. at 667 68. 10 14 3708 Geismann v. ZocDoc, Inc. 1 The plaintiff, like Geismann, declined the offer. Id. at 668. The Supreme Court 2 concluded that an Article III case or controversy remained, Rule 68 offer 3 notwithstanding,6 because [a]n unaccepted settlement offer—like any 4 unaccepted contract offer—is a legal nullity, with no operative effect. Id. at 670 5 (quoting Genesis Healthcare Corp. v. Symczyk, U.S. , 133 S. Ct. 1523, 1533 6 (2013) (Kagan, J., dissenting)). [W]ith no settlement offer still operative, the 7 parties remained adverse; both retained the same stake in the litigation they had 8 at the outset. Id. at 670 71. 9 In light of Campbell Ewald, the district court s conclusion in this case that 10 Geismann s claim was mooted by the amount and content of the Rule 68 offer 11 made by ZocDoc, Geismann, 60 F. Supp. 3d at 407, is incorrect. Rule 68 provides 12 that, [a]t least 14 days before the date set for trial, a party defending against a 13 claim may serve on an opposing party an offer to allow judgment on specified 14 terms, with the costs then accrued. Fed. R. Civ. P. 68(a). The plain purpose of The Supreme Court declined to consider whether the result would be different if a defendant deposits the full amount of the plaintiff s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. Campbell Ewald, 136 S. Ct. at 672. That hypothetical did not present itself in Campbell Ewald in part because the district court declined to dismiss the plaintiff s claim on the ground that it was rendered moot by the unaccepted Rule 68 offer, Gomez v. Campbell Ewald Co., 805 F. Supp. 2d 923, 928 30 (C.D. Cal. 2011), and the United States Court of Appeals for the Ninth Circuit affirmed, Gomez v. Campbell Ewald Co., 768 F.3d 871, 875 (9th Cir. 2014). 6 11 14 3708 Geismann v. ZocDoc, Inc. 1 Rule 68 is to encourage settlement and avoid litigation. Marek v. Chesny, 473 2 U.S. 1, 5 (1985). Should the offeree decline the offer, however, it is considered 3 withdrawn. Fed. R. Civ. P. 68(b). Campbell Ewald makes clear that such a 4 withdrawn offer ha[s] no continuing efficacy. 136 S. Ct. at 670. The district 5 court s entry of judgment, therefore, imbued ZocDoc s offer with a power it did 6 not possess. The district court s conclusion in the case now before us is, of course, 7 8 understandable, it having been reached before Campbell Ewald was decided. 9 And, as we have noted, our prior case law has not always been entirely clear on 10 this subject. Tanasi, 786 F.3d at 199. The district court also followed the 11 typically proper procedure by enter[ing] judgment against the defendant for 12 the proffered amount and [] direct[ing] payment to the plaintiff consistent with 13 the offer. Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir. 2013) (per curiam). But the 14 basis upon which the district court entered judgment did not exist: An 15 unaccepted Rule 68 offer of judgment does not render an action moot. 16 17 unlike Campbell Ewald, the district court entered judgment in this case, giving 18 effect to the unaccepted offer. We do not find this distinction meaningful ZocDoc attempts to distinguish Campbell Ewald on two grounds. First, 12 14 3708 Geismann v. ZocDoc, Inc. 1 because the judgment should not have been entered in the first place. See 2 Campbell Ewald, 136 S. Ct. at 672 ( [A]n unaccepted settlement offer or offer of 3 judgment does not moot a plaintiff s case, so the District Court retained 4 jurisdiction to adjudicate [the plaintiff s] complaint. ). Under basic principles of 5 contract law, id. at 670, the recipient s rejection of an offer leaves the matter as if 6 no offer had ever been made. . . . So assuming the case was live before—because 7 the plaintiff had a stake and the court could grant relief—the litigation carries on, 8 unmooted, id. (quoting Genesis Healthcare, 133 S. Ct. at 1533 (Kagan, J., 9 dissenting) (internal quotation marks omitted)). The result in Campbell Ewald 10 cannot be avoided simply by entering a judgment effectuating an otherwise 11 precluded dismissal. ZocDoc notes that the district court did not act reflexively, having carefully 12 13 considered the content of the rejected offer. Be that as it may, the offer that the 14 district court carefully reviewed was null and void at the time. It is of no 15 moment whether the offer more than satisfie[d] any recovery Geismann could 16 make under the applicable statute. Geismann, 60 F. Supp. 3d at 406. When a 17 plaintiff rejects [a Rule 68] offer—however good the terms—her interest in the 18 lawsuit remains just what it was before. And so too does the court s ability to 13 14 3708 Geismann v. ZocDoc, Inc. 1 grant her relief. Campbell Ewald, 136 S. Ct. at 670 (quoting Genesis Healthcare, 133 2 S. Ct. at 1533 (Kagan, J., dissenting)). 3 Geismann also contests whether the offer in fact more than satisfie[d] any 4 recovery [it] could make under the applicable statute. Geismann, 60 F. Supp. 3d 5 at 406. Indeed, Geismann insisted in its opposition to the motion to dismiss that 6 the amount proffered by ZocDoc did not provide[] full satisfaction of 7 [Geismann s] claim, in part because the parties had divergent legal theories 8 regarding the amount of damages available under the TCPA.7 Pl. s Opp n to 9 Def. s Mot. to Dismiss at 14 n.4, Geismann v. ZocDoc, Inc., No. 14 cv 7009 10 (S.D.N.Y. Sept. 25, 2014), ECF No. 53. That constitutes a live controversy 11 precluding dismissal on the basis of mootness. A case becomes moot only when 12 it is impossible for a court to grant any effectual relief whatever to the prevailing 13 party. Knox v. Serv. Emps. Int l Union, Local 1000, U.S. , 132 S. Ct. 2277, 14 2287 (2012) (internal quotation marks omitted). While we recognized prior to 15 Campbell Ewald that a judgment entered pursuant to an offer can render an action While we decline to resolve this dispute, we note that Geismann s position is not frivolous. To wit: the Eleventh Circuit recently sided in favor of Geismann s per violation interpretation of the TCPA. Lary v. Trinity Physician Fin. & Ins. Servs., 780 F.3d 1101, 1106 (11th Cir. 2015) ( In plain terms, the statute allows a person to recover $500 in damages for each violation of this subsection. Section 227(b)(1) has no language limiting the recovery to $500 per call or fax. (citation omitted)). 7 14 14 3708 Geismann v. ZocDoc, Inc. 1 moot where the parties agree that a judgment should be entered against the 2 defendant, Tanasi, 786 F.3d at 200 (emphasis added), the offer of judgment alone 3 does not have the same or a similar effect, see, e.g., Hepler v. Abercrombie & Fitch 4 Co., 607 F. App x 91, 92 93 (2d Cir. 2015) (summary order); Franco v. Allied 5 Interstate LLC, 602 F. App x 40, 41 (2d Cir. 2015) (summary order). This was 6 neither a case in which the parties agreed to the entry of a particular judgment, 7 see Tanasi, 786 F.3d at 200, nor one in which an accepted offer rendered the 8 plaintiff s claim moot, see Bank v. Alliance Health Networks, LLC, F. App x , 9 2016 WL 6128043, at *1, 2016 U.S. App. LEXIS 18849, at *2 (2d Cir. 2016) 10 (summary order) (stating that although the Supreme Court has held that an 11 unaccepted Rule 68 offer of judgment, on its own, will not moot a plaintiff s 12 claims, that rule does not control where, unlike here, the plaintiff negotiated the 13 check proffered by the defendants). ZocDoc also argues that Campbell Ewald is distinguishable because 14 15 Geismann was not left emptyhanded. 136 S. Ct. at 672. We disagree. ZocDoc s 16 unsuccessful attempt to tender judgment notwithstanding, Geismann has not 17 been compensated in satisfaction of its claim, which would require, at a 18 minimum, its acceptance of a valid offer. See id. ( [W]hen the settlement offer . . . 15 14 3708 Geismann v. ZocDoc, Inc. 1 expired, [the plaintiff] remained emptyhanded; [the plaintiff s] TCPA complaint, 2 which [the defendant] opposed on the merits, stood wholly unsatisfied. ). 3 Geismann thus remains emptyhanded, distinguishing this case from the trio of 4 19th century tax cases that ZocDoc cites for the proposition that Geismann s 5 claim is extinguished ; in each of those cases, the claimant accepted tender. See 6 California v. San Pablo & Tulare R.R. Co., 149 U.S. 308, 314 (1893) (finding that the 7 dispute was resolved by the offer to pay all [] sums, and the deposit of money in 8 a bank, which by a statute of the state have the same effect as actual payment and 9 receipt of the money (emphases added)); Little v. Bowers, 134 U.S. 547, 552 (1890) 10 (observing that there was no denial of the fact that the taxes in dispute ha[d] 11 been paid and therefore, implicitly, accepted); San Mateo Cnty. v. S. Pac. R.R. Co., 12 116 U.S. 138, 141 (1885) (noting that there was no dispute that the debt for which 13 the suit was brought ha[d] been unconditionally paid and satisfied ). ZocDoc s post judgment actions move it no closer to its goal. The order 14 15 granting leave to deposit a check in the amount of $6,100.00 with the clerk of the 16 district court in satisfaction of judgment was made pursuant to and in 17 furtherance of a judgment that should not have been entered in the first place. 18 And even if that deposit had satisfied Geismann s demand for monetary relief, it 16 14 3708 Geismann v. ZocDoc, Inc. 1 alone does nothing to satisfy the demand for injunctive relief. Cf. Mey v. N. Am. 2 Bancard, LLC, 655 F. App x 332, 336 (6th Cir. 2016) (summary order) (observing 3 that a tender of monetary damages alone does nothing to satisfy [the 4 plaintiff s] request for injunctive relief ). This is also not a case that matches the hypothetical posed by Campbell 5 6 Ewald, where the Supreme Court declined to consider whether the outcome 7 would be different had the defendant deposit[ed] the full amount of the 8 plaintiff s individual claim in an account payable to the plaintiff, and the court 9 then enter[ed] judgment for the plaintiff in that amount. 136 S. Ct. at 672 10 (emphasis added). Here the district court entered a judgment that should not 11 have been entered in the first place, and ZocDoc then more than one year later 12 deposited an amount in satisfaction of that errant judgment in an account 13 payable to Geismann. Accordingly, we need not, and do not, decide whether a 14 different outcome would result if the facts here matched the Campbell Ewald 15 hypothetical.8 We note, without deciding because the situation is not before us, that an attempt by the defendant to use the tactic described in the Campbell Ewald hypothetical to place [it] in the driver s seat, 136 S. Ct. at 672, might not work. The Supreme Court s criticism of similar tactics suggests that Rule 68 should be harmonized with Rule 23. See id. (describing a kindred strategy intended to avoid a potential adverse decision as a 8 17 14 3708 Geismann v. ZocDoc, Inc. 1 D. Other Issues 2 Because we conclude that ZocDoc s unaccepted offer did not moot 3 Geismann s individual claim, we need not address the remaining issues raised on 4 appeal. The district court should not have entered judgment on the basis of 5 ZocDoc s offer, nor therefore should it have dismissed Geismann s action. 6 Because a named plaintiff remains in this action, the dismissal of the class claim 7 was also in error. Although the district court may, in its discretion, permit 8 ZocDoc to deposit with the court any part of the relief sought, Fed. R. Civ. P. 9 67, the basis for so granting the defendant leave to deposit must not be 10 inconsistent with this opinion. CONCLUSION 11 For the foregoing reasons, we VACATE the judgment of the district court 12 13 and REMAND for further proceedings. gambit ); cf. Genesis Healthcare, 133 S. Ct. at 1536 (Kagan, J., dissenting) (stating that a court should not short circuit a statutory collective action by acceding to a defendant s proposal to make only the named plaintiff whole ). The Supreme Court has also acknowledged that [r]equiring multiple plaintiffs to bring separate actions, which effectively could be picked off by a defendant s tender of judgment before an affirmative ruling on class certification could be obtained obviously would frustrate the objectives of class actions, and would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement. Deposit Guar. Nat l Bank v. Roper, 445 U.S. 326, 339 (1980). However, we need not, and therefore do not, weigh in on whether further maneuvers by the defendant might render a motion to dismiss viable. We do no more than observe the obvious: an attempt to make use of the hypothetical posited in Campbell Ewald is not guaranteed to bear fruit. 18
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