14

‐ 3708

Geismann v. ZocDoc, Inc.

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

August Term, 2 014 3

(Argued: June 5, 2 015 Final Submission: February 1, 2 016 4

Decided: March 9, 2 017) 5

Docket No. 14

‐ 3708 6

7

Radha Geismann, M.D., P.C., individually and on behalf of all others similarly 8

situated, 9

Plaintiff

‐ Appellant, 10

v. 11

ZocDoc, Incorporated, 1 2

Defendant

‐ Appellee, 13

14

John Does 1

‐ 10, 15

Defendants. * 16

17

Before: S ACK

, H ALL

, and C ARNEY

, Circuit Judges

. 18

Radha Geismann, M.D., P.C., appeals from a judgment of the United States 19

District Court for the Southern District of New York (Louis L. Stanton, Judge ) 2 0

dismissing its putative class action suit against ZocDoc, Inc., alleging violations 2 1

of the Telephone Consumer Protection Act. The district court concluded that a 22

settlement offer, made by ZocDoc but rejected by Geismann, would have 2 3

* 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.

2 afforded Geismann complete relief, notwithstanding a pending class

‐ certification 1

motion. The court entered judgment in Geismann ʹ s favor in the amount and 2

under the terms of the unaccepted offer and dismissed the action for lack of 3

subject matter jurisdiction on the ground that it had become moot. We conclude 4

that the settlement offer did not render the action moot and that judgment 5

should not have been entered nor the action dismissed on that basis. The 6

judgment of the district court is therefore: 7

VACATED and REMANDED. 8

GLENN L. HARA (David M. Oppenheim, 9

on the brief ), Anderson + Wanca, Rolling 10

Meadows, Illinois, for Plaintiff

‐ Appellant. 11

BLAINE C. KIMREY (Charles J. Nerko, 1 2

Vedder Price P.C., New York, New York, 13

Bryan K. Clark, on the brief ), Vedder Price 14

P.C., Chicago, Illinois, for Defendant

‐ 15

Appellee. 16

S ACK

, Circuit Judge : 17

Plaintiff

‐ appellant Radha Geismann, M.D., P.C. ( ʺ Geismann ʺ ), appeals 18

from the district court ʹ s dismissal of its putative class action against the 19

defendant

‐ appellee ZocDoc, Inc. ( ʺ ZocDoc ʺ ), alleging violations of the Telephone 2 0

Consumer Protection Act ( ʺ TCPA ʺ ), 47 U.S.C. § 22 7. Geismann ʹ s suit stems from 2 1

two unsolicited telecopies (colloquially and hereinafter ʺ faxes ʺ ) it allegedly 2214

‐ 3708

Geismann v. ZocDoc, Inc.

3 received from ZocDoc. After Geismann filed a complaint and motion for class 1

certification, ZocDoc made a settlement offer to Geismann as to its individual 2

claims pursuant to Federal Rule of Civil Procedure 68. Geismann rejected the 3

offer. ZocDoc then moved to dismiss the action for lack of subject matter 4

jurisdiction on the ground that its offer afforded Geismann complete relief, 5

thereby mooting the action. The United States District Court for the Southern 6

District of New York (Louis L. Stanton, Judge ) granted the motion, agreeing with 7

ZocDoc that the rejected offer, which the court concluded would have afforded 8

Geismann complete relief on its individual claims, rendered the entire action 9

moot, notwithstanding the pending class

‐ certification motion. The court entered 10

judgment in Geismann ʹ s favor under the terms offered by ZocDoc and dismissed 11

the action. While this appeal was pending, the district court granted ZocDoc 1 2

leave to deposit a check in the amount of $6,100.00 with the Clerk of the United 13

States District Court for the Southern District of New York in satisfaction of 14

judgment. 15

We conclude that the action was not and is not ʺ moot. ʺ An unaccepted 16

Rule 68 offer of judgment is, regardless of its terms, a legal nullity. 1714

‐ 3708

Geismann v. ZocDoc, Inc.

4 

### BACKGROUND 1

Geismann, a Missouri corporation, alleges that it received from ZocDoc, a 2

Delaware corporation, two unsolicited faxes advertising a ʺ patient matching 3

service ʺ for doctors. Joint Appendix ( ʺ J.A. ʺ 1 ) 43, 57

‐ 58. Both faxes stated that if 4

the recipient wished to ʺ stop receiving faxes, ʺ he or she could call a domestic 5

telephone number provided in the fax. J.A. 57, 58. 6

In 2 014, Geismann filed a complaint in Missouri state court 2 alleging that 7

these faxes violated the TCPA, 3 which prohibits, inter alia

, the use of ʺ any 8

telephone facsimile machine, computer, or other device to send, to a telephone 9

facsimile machine, an unsolicited advertisement, unless ʺ the sender and recipient 10

have an ʺ established business relationship, ʺ the recipient volunteered its fax 11

1 ʺ J.A. ʺ hereinafter refers to the parties ʹ joint appendix filed in this Court on November

6

, 2 014

.

2 The TCPA provides that ʺ [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. ʺ

47 U.S.C. § 22 7 (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 ʹ 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 ʺ final decision[] ʺ over which we have jurisdiction. 2 8

U.S.C. § 1 2 91

.14

‐ 3708

Geismann v. ZocDoc, Inc.

5 number directly to the sender or through voluntary participation in a directory 1

or other public source, or the fax meets certain specified notice requirements. 47 2

U.S.C. § 22 7(b)(1)(C); see also id. § 22 7(a)(5) ( ʺ The term ʹ unsolicited advertisement ʹ 3

means any material advertising the commercial availability or quality of any 4

property, goods, or services which is transmitted to any person without that 5

person ʹ s prior express invitation or permission, in writing or otherwise. ʺ ). 6

The complaint requested between $500.00 and $1,500.00 in damages for 7

each TCPA violation, an injunction prohibiting ZocDoc from sending similar 8

faxes in the future, and costs. See id

. § 22 7(b)(3) (providing a private right of 9

action for injunctive relief and damages in the amount of ʺ actual monetary loss ʺ 10

or ʺ $500

. . . for each [] violation, whichever is greater, ʺ to be tripled at the court ʹ s 11

discretion if the defendant ʺ willfully or knowingly violated [the statute] ʺ ). 1 2

The complaint also requested that the case be treated as a class action. 13

Geismann filed a separate motion for class certification pursuant to Missouri law 14

the same day that it filed the complaint. The certification motion contained a 15

footnote explaining that Geismann filed the motion at the same time as the 16

complaint because the ʺ [d]efendants in class litigation have resorted to making 17

individual settlement offers to named plaintiffs before a class action is certified in 1814

‐ 3708

Geismann v. ZocDoc, Inc.

6 an attempt to ʹ pick

‐ off ʹ the putative class representative and thereby derail the 1

class action litigation. ʺ Pl. ʹ s State Ct. Mot. for Class Certification at 1 n.1 (J.A. 19). 2

On March 13, 2 014, ZocDoc removed the action to the United States 3

District Court for the Eastern District of Missouri, invoking federal question 4

jurisdiction. See 2 8 U.S.C. §§ 1331, 1367. Two weeks later, ZocDoc made an offer 5

of judgment to Geismann pursuant to Federal Rule of Civil Procedure 68 for (1) 6

$6,000, plus reasonable attorney ʹ s fees, 4 in satisfaction of Geismann ʹ s individual 7

claims, and ( 2 ) an injunction prohibiting ZocDoc from engaging in the alleged 8

statutory violations in the future. On April 8, 2 014, Geismann rejected the offer 9

but indicated that it would be willing to accept if ZocDoc would extend the same 10

offer to all members of the putative class action. ZocDoc declined. 11

In August 2 014, the district court granted ZocDoc ʹ s motion to transfer the 1 2

action to the Southern District of New York. See 2 8 U.S.C. § 1404(a). ZocDoc 13

then moved to dismiss the complaint, primarily on the ground that its offer of 14

judgment mooted the action. Geismann disputed, inter alia

, whether the 15

unaccepted offer ʺ provided full satisfaction of [its] claim, ʺ arguing that the TCPA 16

4 Geismann ʹ s initial complaint requested attorney ʹ 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 ʹ s fees or costs. Attorney ʹ s fees are not at issue in this appeal, and

we do not take a position regarding the statutory availability of any such fees.14

‐ 3708

Geismann v. ZocDoc, Inc.

7 provides for monetary damages per ʺ violation, ʺ not per fax, entitling it to 1

ʺ recover for each of the multiple violations in each fax. ʺ Pl. ʹ s Opp ʹ n to Def. ʹ s Mot. 2

to Dismiss at 14 n.4, Geismann v. ZocDoc, Inc.

, No. 14

‐ cv

‐ 7009 (S.D.N.Y. Sept. 2 5, 3

2 014), ECF No. 53. 4

The district court disagreed, reasoning: 5

The monetary damages Geismann can recover individually under 6

the TCPA for two unsolicited faxes [it] received

. . . are limited to 7

$1,000, which could be trebled to not more than $3,000 if the Court 8

finds that it was a willful and knowing violation. ZocDoc ʹ s offer of 9

judgment not only adds Geismann ʹ s attorneys ʹ fees, but is twice the 10

trebled amount, and thus more than satisfies any recovery 11

Geismann could make under the applicable statute. 1 2

Geismann v. ZocDoc, Inc.

, 60 F. Supp. 3d 404, 405

‐ 06 (S.D.N.Y. 2 014). The court 13

entered judgment in the amount and under the terms of the rejected settlement 14

offer and dismissed the action as moot because, following the settlement offer 15

and entry of judgment, ʺ there remain[ed] no case or controversy. ʺ Id

. at 407. 16

Geismann then brought this appeal. While the appeal was pending, 17

ZocDoc requested leave to deposit a check in the amount of $6,100.00 payable to 18

the clerk of the district court in satisfaction of judgment. Pl. ʹ s Ltr. Mot. at 2

‐ 3, 19

Geismann v. ZocDoc, Inc.

, No. 14

‐ cv

‐ 7009 (S.D.N.Y. Feb. 1, 2 016), ECF No. 60. The 2 0

court granted the request, reasoning that the Supreme Court ʹ s then

‐ recent 2 1

decision in Campbell

‐ Ewald Co. v. Gomez

, ‐‐‐ U.S.

‐‐‐‐ , 136 S. Ct. 663 ( 2 016), 2214

‐ 3708

Geismann v. ZocDoc, Inc.

8 ʺ favor[s] deposit of judgments with the Court ʺ in these circumstances. Order for 1

Deposit in Interest Bearing Account at 2

, Geismann v. ZocDoc, Inc.

, No. 14

‐ cv

‐ 7009 2

(S.D.N.Y. Feb. 3, 2 016), ECF No. 63. 5 3

We ordered the parties to submit supplemental briefing addressing the 4

effect of Campbell

‐ Ewald on the issues presented in this appeal, and, on February 5

1, 2 016, both parties made a responsive submission. ZocDoc argued that 6

following the entry of judgment and deposit of funds with the clerk of the court, 7

the plaintiff in this case, unlike the plaintiff in Campbell

‐ Ewald

, was not left 8

ʺ emptyhanded. ʺ Def. ʹ s Supp. Br. at 2

, 4. Geismann argued, inter alia

, that 9

Campbell

‐ Ewald foreclosed the district court ʹ s disposition of this case because ʺ an 10

unaccepted settlement offer or offer of judgment does not moot a plaintiff ʹ s case 11

no matter how good the terms. ʺ Pl. ʹ s Supp. Br. at 1 (internal quotation marks 1 2

omitted). 13

5 Geismann challenges this deposit order in a related appeal. See Geismann v. ZocDoc,

Inc.

, No. 16

‐ 663 ( ʺ Geismann II ʺ ). Because the disposition of the present appeal renders

moot the issues there raised, we have concurrently issued an order granting ZocDoc ʹ s

motion to dismiss Geismann II as duplicative.14

‐ 3708

Geismann v. ZocDoc, Inc.

9 

### DISCUSSION 1

A. Standard of Review 2

ʺ In considering a dismissal for lack of jurisdiction, we review the district 3

court ʹ s factual findings for clear error and its legal conclusions de novo

. ʺ APWU v. 4

Potter

, 343 F.3d 619, 6 2 3

‐ 2 4 ( 2 d Cir. 2 003). 5

B. Jurisdiction 6

Our jurisdiction is limited by Article III, section 2

, of the United States 7

Constitution to ʺ cases ʺ and ʺ controversies. ʺ Spencer v. Kemna

, 5 2 3 U.S. 1, 7 (1998). 8

Where there is no unresolved case or controversy, ʺ mootness occurs ʺ and ʺ the 9

court—whether trial, appellate, or Supreme—loses jurisdiction over the suit, 10

which therefore must be dismissed. ʺ Russman v. Bd. of Educ. of Enlarged City Sch. 11

Dist. of City of Watervliet

, 2 60 F.3d 114, 118

‐ 19 ( 2 d Cir. 2 001). 1 2

C. Campbell

‐ Ewald 13

Geismann argues that the district court erred in dismissing its complaint 14

for lack of subject matter jurisdiction because ZocDoc ʹ s proffered monetary 15

damages did not provide complete relief as to Geismann ʹ s individual claims; the 16

individual and putative class claims were therefore not moot. Alternatively, 17

Geismann asks us to conclude, as a matter of first impression in this Circuit, that 1814

‐ 3708

Geismann v. ZocDoc, Inc.

10 even if the offer was complete as to its individual claims, an individual judgment 1

does not render moot a putative class claim, at least when a class

‐ certification 2

motion is pending. Cf. Tanasi v. New Alliance Bank

, 786 F.3d 195, 198 ( 2 d Cir. 3

2 015), as amended (May 2 1, 2 015), cert. denied

, 136 S. Ct. 979 ( 2 016) (declining to 4

address this question). While this appeal was pending before us, the Supreme 5

Court decided Campbell

‐ Ewald

. Its decision made clear that an unaccepted Rule 6

68 offer of judgment does not render an action moot. Campbell

‐ Ewald

, 136 S. Ct. 7

at 670

‐ 71. Because that decision controls our review and is dispositive of the case 8

at bar, we need not, and decline to, reach the issues raised by Geismann in its 9

pre

‐ Campbell

‐ Ewald submissions. 10

In Campbell

‐ Ewald

, the plaintiff sought individual and class

‐ wide relief 11

under the TCPA, alleging that he and members of the putative class received 1 2

unsolicited text messages sent by the defendant in violation of the statute. Id

. at 13

667. The defendant, like ZocDoc, ʺ proposed to settle [the plaintiff ʹ s] individual 14

claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 15

68, ʺ including an offer to pay ʺ costs, excluding attorney ʹ s fees, and $1,503 per 16

message, ʺ as well as ʺ a stipulated injunction in which [the defendant] agreed to 17

be barred from sending text messages in violation of the TCPA. ʺ Id. at 667

‐ 68. 1814

‐ 3708

Geismann v. ZocDoc, Inc.

11 The plaintiff, like Geismann, declined the offer. Id. at 668. The Supreme Court 1

concluded that an Article III ʺ case ʺ or ʺ controversy ʺ remained, Rule 68 offer 2

notwithstanding, 6 because ʺ [a]n unaccepted settlement offer—like any 3

unaccepted contract offer—is a legal nullity, with no operative effect. ʺ Id. at 670 4

(quoting Genesis Healthcare Corp. v. Symczyk

, ‐‐‐ U.S.

‐‐‐‐ , 133 S. Ct. 15 2 3, 1533 5

( 2 013) (Kagan, J., dissenting)). ʺ [W]ith no settlement offer still operative, the 6

parties remained adverse; both retained the same stake in the litigation they had 7

at the outset. ʺ Id

. at 670

‐ 71. 8

In light of Campbell

‐ Ewald

, the district court ʹ s conclusion in this case that 9

Geismann ʹ s claim was ʺ mooted by the amount and content of the Rule 68 offer 10

made by ZocDoc, ʺ Geismann

, 60 F. Supp. 3d at 407, is incorrect. Rule 68 provides 11

that, ʺ [a]t least 14 days before the date set for trial, a party defending against a 1 2

claim may serve on an opposing party an offer to allow judgment on specified 13

terms, with the costs then accrued. ʺ Fed. R. Civ. P. 68(a). ʺ The plain purpose of 14

6 The Supreme Court declined to consider ʺ whether the result would be different if a

defendant deposits the full amount of the plaintiff ʹ s individual claim in an account

payable to the plaintiff, and the court then enters judgment for the plaintiff in that

amount. ʺ Campbell

‐ Ewald

, 136 S. Ct. at 67 2. That ʺ hypothetical ʺ did not present itself in

Campbell

‐ Ewald in part because the district court declined to dismiss the plaintiff ʹ 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 9 2 3

, 9 2 8

‐ 30 (C.D. Cal. 2 011 ), and the United States

Court of Appeals for the Ninth Circuit affirmed, Gomez v. Campbell

‐ Ewald Co.

, 768 F. 3 d

871

, 875 ( 9 th Cir. 2 014 ).14

‐ 3708

Geismann v. ZocDoc, Inc.

1 2 Rule 68 is to encourage settlement and avoid litigation. ʺ Marek v. Chesny

, 473 1

U.S. 1, 5 (1985). Should the offeree decline the offer, however, it ʺ is considered 2

withdrawn. ʺ Fed. R. Civ. P. 68(b). Campbell

‐ Ewald makes clear that such a 3

ʺ withdrawn ʺ offer ʺ ha[s] no continuing efficacy. ʺ 136 S. Ct. at 670. The district 4

court ʹ s entry of judgment, therefore, imbued ZocDoc ʹ s offer with a power it did 5

not possess. 6

The district court ʹ s conclusion in the case now before us is, of course, 7

understandable, it having been reached before Campbell

‐ Ewald was decided. 8

And, as we have noted, ʺ our prior case law has not always been entirely clear on 9

this subject. ʺ Tanasi

, 786 F.3d at 199. The district court also followed the 10

ʺ typically proper ʺ procedure by ʺ enter[ing] judgment against the defendant for 11

the proffered amount and [] direct[ing] payment to the plaintiff consistent with 1 2

the offer. ʺ Cabala v. Crowley

, 736 F.3d 22 6, 22 8 ( 2 d Cir. 2 013) (per curiam). But the 13

basis upon which the district court entered judgment did not exist: An 14

unaccepted Rule 68 offer of judgment does not render an action moot. 15

ZocDoc attempts to distinguish Campbell

‐ Ewald on two grounds. First, 16

unlike Campbell

‐ Ewald

, the district court entered judgment in this case, giving 17

effect to the unaccepted offer. We do not find this distinction meaningful 1814

‐ 3708

Geismann v. ZocDoc, Inc.

13 because the judgment should not have been entered in the first place. See 1

Campbell

‐ Ewald

, 136 S. Ct. at 67 2 ( ʺ [A]n unaccepted settlement offer or offer of 2

judgment does not moot a plaintiff ʹ s case, so the District Court retained 3

jurisdiction to adjudicate [the plaintiff ʹ s] complaint. ʺ ). ʺ Under basic principles of 4

contract law, ʺ id. at 670, ʺ the recipient ʹ s rejection of an offer leaves the matter as if 5

no offer had ever been made.

. . . So assuming the case was live before—because 6

the plaintiff had a stake and the court could grant relief—the litigation carries on, 7

unmooted, ʺ id. (quoting Genesis Healthcare

, 133 S. Ct. at 1533 (Kagan, J., 8

dissenting) (internal quotation marks omitted)). The result in Campbell

‐ Ewald 9

cannot be avoided simply by entering a judgment effectuating an otherwise 10

precluded dismissal. 11

ZocDoc notes that the district court did not act reflexively, having carefully 1 2

considered the content of the rejected offer. Be that as it may, the offer that the 13

district court carefully reviewed was null and void at the time. It is of no 14

moment whether the offer ʺ more than satisfie[d] any recovery Geismann could 15

make under the applicable statute. ʺ Geismann

, 60 F. Supp. 3d at 406. ʺ When a 16

plaintiff rejects [a Rule 68] offer—however good the terms—her interest in the 17

lawsuit remains just what it was before. And so too does the court ʹ s ability to 1814

‐ 3708

Geismann v. ZocDoc, Inc.

14 grant her relief. ʺ Campbell

‐ Ewald

, 136 S. Ct. at 670 (quoting Genesis Healthcare

, 133 1

S. Ct. at 1533 (Kagan, J., dissenting)). 2

Geismann also contests whether the offer in fact ʺ more than satisfie[d] any 3

recovery [it] could make under the applicable statute. ʺ Geismann

, 60 F. Supp. 3d 4

at 406. Indeed, Geismann insisted in its opposition to the motion to dismiss that 5

the amount proffered by ZocDoc did not ʺ provide[] full satisfaction of 6

[Geismann ʹ s] claim, ʺ in part because the parties had divergent legal theories 7

regarding the amount of damages available under the TCPA. 7 Pl. ʹ s Opp ʹ n to 8

Def. ʹ s Mot. to Dismiss at 14 n.4, Geismann v. ZocDoc, Inc.

, No. 14

‐ cv

‐ 7009 9

(S.D.N.Y. Sept. 2 5, 2 014), ECF No. 53. That constitutes a live controversy 10

precluding dismissal on the basis of mootness. ʺ A case becomes moot only when 11

it is impossible for a court to grant any effectual relief whatever to the prevailing 1 2

party. ʺ Knox v. Serv. Emps. Int ʹ l Union, Local 1000

, ‐‐‐ U.S.

‐‐‐‐ , 13 2 S. Ct. 22 77, 13

22 87 ( 2 01 2 ) (internal quotation marks omitted). While we recognized prior to 14

Campbell

‐ Ewald that a judgment entered pursuant to an offer can render an action 15

7 While we decline to resolve this dispute, we note that Geismann ʹ s position is not

frivolous. To wit: the Eleventh Circuit recently sided in favor of Geismann ʹ s per

‐

violation interpretation of the TCPA. Lary v. Trinity Physician Fin. & Ins. Servs.

, 780 F. 3 d

1101

, 1106 ( 11 th Cir. 2 015 ) ( ʺ In plain terms, the statute allows a person to recover ʹ $ 500

in damages for each ʹ ʹ violation of this subsection. ʹ Section 22 7 (b)( 1 ) has no language

limiting the recovery to $ 500 per ʹ call ʹ or ʹ fax. ʹʺ (citation omitted)).14

‐ 3708

Geismann v. ZocDoc, Inc.

15 moot where ʺ the parties agree that a judgment should be entered against the 1

defendant, ʺ Tanasi

, 786 F.3d at 2 00 (emphasis added), the offer of judgment alone 2

does not have the same or a similar effect, see, e.g.

, Hepler v. Abercrombie & Fitch 3

Co.

, 607 F. App ʹ x 91, 9 2

‐ 93 ( 2 d Cir. 2 015) (summary order); Franco v. Allied 4

Interstate LLC

, 60 2 F. App ʹ x 40, 41 ( 2 d Cir. 2 015) (summary order). This was 5

neither a case in which the parties agreed to the entry of a particular judgment, 6

see Tanasi

, 786 F.3d at 2 00, nor one in which an accepted offer rendered the 7

plaintiff ʹ s claim moot, s ee Bank v. Alliance Health Networks, LLC

, ‐‐‐ F. App ʹ x ‐‐‐‐ , 8

2 016 WL 61 2 8043, at *1, 2 016 U.S. App. LEXIS 18849, at * 2 ( 2 d Cir. 2 016) 9

(summary order) (stating that although the ʺ Supreme Court has held that an 10

unaccepted Rule 68 offer of judgment, on its own, will not moot a plaintiff ʹ s 11

claims, ʺ that rule does not control where, unlike here, the plaintiff ʺ negotiated the 1 2

check ʺ proffered by the defendants). 13

ZocDoc also argues that Campbell

‐ Ewald is distinguishable because 14

Geismann was not left ʺ emptyhanded. ʺ 136 S. Ct. at 67 2

. We disagree. ZocDoc ʹ s 15

unsuccessful attempt to tender judgment notwithstanding, Geismann has not 16

been compensated in satisfaction of its claim, which would require, at a 17

minimum, its acceptance of a valid offer. See id. ( ʺ [W]hen the settlement offer

. . . 1814

‐ 3708

Geismann v. ZocDoc, Inc.

16 expired, [the plaintiff] remained emptyhanded; [the plaintiff ʹ s] TCPA complaint, 1

which [the defendant] opposed on the merits, stood wholly unsatisfied. ʺ ). 2

Geismann thus remains emptyhanded, distinguishing this case from the trio of 3

19th

‐ century tax cases that ZocDoc cites for the proposition that Geismann ʹ s 4

claim is ʺ extinguished ʺ ; in each of those cases, the claimant accepted tender. See 5

California v. San Pablo & Tulare R.R. Co.

, 149 U.S. 308, 314 (1893) (finding that the 6

dispute was resolved by ʺ the offer to pay all [] sums, and the deposit of money in 7

a bank, which by a statute of the state have the same effect as actual payment and 8

receipt of the money ʺ (emphases added)); Little v. Bowers

, 134 U.S. 547, 55 2 (1890) 9

(observing that there was ʺ no denial of the fact that the taxes in dispute ha[d] 10

been paid ʺ and therefore, implicitly, accepted); San Mateo Cnty. v. S. Pac. R.R. Co.

, 11

116 U.S. 138, 141 (1885) (noting that there was no dispute that the ʺ debt for which 1 2

the suit was brought ha[d] been unconditionally paid and satisfied ʺ ). 13

ZocDoc ʹ s post

‐ judgment actions move it no closer to its goal. The order 14

granting leave to deposit a check in the amount of $6,100.00 with the clerk of the 15

district court in satisfaction of judgment was made pursuant to and in 16

furtherance of a judgment that should not have been entered in the first place. 17

And even if that deposit had satisfied Geismann ʹ s demand for monetary relief, it 1814

‐ 3708

Geismann v. ZocDoc, Inc.

17 alone does nothing to satisfy the demand for injunctive relief. Cf. Mey v. N. Am. 1

Bancard, LLC

, 655 F. App ʹ x 33 2

, 336 (6th Cir. 2 016) (summary order) (observing 2

that ʺ a tender ʺ of monetary damages alone ʺ does nothing to satisfy [the 3

plaintiff ʹ s] request for injunctive relief ʺ ). 4

This is also not a case that matches the hypothetical posed by Campbell

‐ 5

Ewald

, where the Supreme Court declined to consider whether the outcome 6

would be different had the ʺ defendant deposit[ed] the full amount of the 7

plaintiff ʹ s individual claim in an account payable to the plaintiff, and the court 8

then enter[ed] judgment for the plaintiff in that amount. ʺ 136 S. Ct. at 67 2 9

(emphasis added). Here the district court entered a judgment that should not 10

have been entered in the first place, and ZocDoc then more than one year later 11

deposited an amount in satisfaction of that errant judgment in an account 1 2

payable to Geismann. Accordingly, we need not, and do not, decide whether a 13

different outcome would result if the facts here matched the Campbell

‐ Ewald 14

hypothetical. 8 15

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 ʺ place [it]

in the driver ʹ s seat, ʺ 136 S. Ct. at 67 2, might not work. The Supreme Court ʹ s criticism of

similar tactics suggests that Rule 68 should be harmonized with Rule 2 3

. See id.

(describing a ʺ kindred strategy ʺ intended to ʺ avoid a potential adverse decision ʺ as a14

‐ 3708

Geismann v. ZocDoc, Inc.

18 D. Other Issues 1

Because we conclude that ZocDoc ʹ s unaccepted offer did not moot 2

Geismann ʹ s individual claim, we need not address the remaining issues raised on 3

appeal. The district court should not have entered judgment on the basis of 4

ZocDoc ʹ s offer, nor therefore should it have dismissed Geismann ʹ s action. 5

Because a named plaintiff remains in this action, the dismissal of the class claim 6

was also in error. Although the district court may, in its discretion, permit 7

ZocDoc to deposit with the court ʺ any part of the relief sought, ʺ Fed. R. Civ. P. 8

67, the basis for so granting the defendant leave to deposit must not be 9

inconsistent with this opinion. 10



### CONCLUSION 11

For the foregoing reasons, we VACATE the judgment of the district court 1 2

and REMAND for further proceedings. 13

ʺ gambit ʺ ); cf. Genesis Healthcare

, 133 S. Ct. at 1536 (Kagan, J., dissenting) (stating that a

court should not ʺ short

‐ circuit ʺ a statutory collective action ʺ by acceding to a

defendant ʹ s proposal to make only the named plaintiff whole ʺ ). The Supreme Court has

also acknowledged that ʺ [r]equiring multiple plaintiffs to bring separate actions, which

effectively could be ʹ picked off ʹ by a defendant ʹ s tender of judgment before an

affirmative ruling on class certification could be obtained obviously would frustrate the

objectives of class actions, ʺ and ʺ would invite waste of judicial resources by stimulating

successive suits brought by others claiming aggrievement. ʺ Deposit Guar. Nat ʹ l Bank v.

Roper

, 445 U.S. 3 2 6

, 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.