Radha Geismann, M.D., P.C. v. Zocdoc, Inc.

909 F.3d 534
CourtCourt of Appeals for the Second Circuit
DecidedNovember 27, 2018
DocketDocket No. 17-2692; August Term, 2017
StatusPublished
Cited by29 cases

This text of 909 F.3d 534 (Radha Geismann, M.D., P.C. v. Zocdoc, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Radha Geismann, M.D., P.C. v. Zocdoc, Inc., 909 F.3d 534 (2d Cir. 2018).

Opinion

Sack, Circuit Judge:

Radha Geismann, M.D., P.C. ("Geismann") filed a class action complaint against ZocDoc, Inc. ("ZocDoc") in the United States District Court for the Southern District of New York, alleging that it1 received unsolicited telecopies (colloquially and hereinafter "faxes") from ZocDoc in *537violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq . After Geismann filed the complaint and moved for class certification, ZocDoc made a settlement offer to Geismann as to its individual claims pursuant to Federal Rule of Civil Procedure 68 ; Geismann rejected the offer. The district court (Louis L. Stanton, Judge ) dismissed the action for lack of subject matter jurisdiction, Radha Geismann, M.D., P.C. v. ZocDoc, Inc. , 60 F.Supp.3d 404 (S.D.N.Y 2014) (" Geismann I "), reasoning that the rejected offer rendered the entire action moot. The court therefore entered judgment in favor of Geismann. Geismann appealed. Relying in large part on the Supreme Court's decision in Campbell-Ewald Co. v. Gomez , --- U.S. ----, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016), we vacated the judgment and remanded the matter to the district court for further proceedings. See Radha Geismann, M.D., P.C. v. ZocDoc, Inc. , 850 F.3d 507 (2d Cir. 2017) (" Geismann II ").

On remand, ZocDoc attempted to use another procedural rule to settle Geismann's individual claims: ZocDoc requested and obtained leave from the district court to deposit funds in the court's registry pursuant to Federal Rule of Civil Procedure 67. The funds that ZocDoc deposited with the court represented what ZocDoc regarded as the maximum possible damages Geismann could receive for its individual TCPA claims. The district court agreed with ZocDoc that its deposit mooted Geismann's individual claim, and accordingly entered judgment in favor of Geismann and dismissed what remained of the action. Radha Geismann, M.D., P.C. v. ZocDoc, Inc. , 268 F.Supp.3d 599 (S.D.N.Y. 2017) (" Geismann III "). We conclude that this was error and return the case to the district court again for further proceedings.

BACKGROUND

The Complaint

Geismann, a Missouri professional corporation, alleges that it received from ZocDoc, a Delaware corporation, two unsolicited faxes advertising a "patient matching service" for doctors. See Corrected First Amended Class Action Complaint ¶¶ 8-9, at Joint Appendix ("J.A.") 3 & Exhibits A and B to the Corrected First Amended Class Action Complaint, at J.A. 17-18. Both faxes stated, in a legend at the bottom of the fax, that if the recipient wished to "stop receiving faxes," he or she could call the domestic telephone number provided. See Exhibits A and B to the Corrected First Amended Class Action Complaint, at J.A. 17-18.

In 2014, Geismann filed this putative class action against ZocDoc in Missouri state court, alleging that these faxes were unsolicited advertisements in violation of the TCPA, 47 U.S.C. § 227. The TCPA prohibits, inter alia , the use of "any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless" the sender and recipient have an "established business relationship," the recipient volunteered its fax number directly to the sender or through voluntary participation in a directory or other public source, or the fax meets specified notice requirements. Id. § 227(b)(1)(C). The TCPA defines "unsolicited advertisement" as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise." Id. § 227(a)(5). Geismann sought between $500 and $1,500 in statutory damages for each alleged TCPA violation, an injunction prohibiting ZocDoc from sending similar faxes in the future, *538and costs.2

On the same day that it filed its complaint in state court, Geismann filed a separate motion for class certification pursuant to Missouri law. Geismann defined the proposed class as "[a]ll persons who on or after four years prior to the filing of this action, were sent telephone facsimile messages of material advertising [a] patient matching service for doctors by or on behalf of Defendant." Radha Geismann, M.D., P.C. v. ZocDoc, Inc. , No. 14-cv-7009 (S.D.N.Y.), ECF No. 5, at 2.

On March 13, 2014, ZocDoc removed the action to the United States District Court for the Eastern District of Missouri. Two weeks later, ZocDoc made an offer of judgment to Geismann pursuant to Federal Rule of Civil Procedure 683 for: (i) $6,000, plus reasonable attorney's fees, in satisfaction of Geismann's individual claims, and (ii) an injunction prohibiting ZocDoc from engaging in the alleged statutory violations in the future. Geismann rejected ZocDoc's offer because it provided no relief to the other members of the class. ZocDoc subsequently moved to transfer the case to the United States District Court for the Southern District of New York. The district court granted ZocDoc's motion on August 26, 2014.

Geismann I Proceedings in the District Court

After the case was transferred to the Southern District of New York, ZocDoc moved to dismiss the complaint, primarily on the ground that its offer of judgment provided full satisfaction of Geismann's claim, so the action was moot. On September 26, 2014, the district court granted ZocDoc's motion to dismiss for lack of subject-matter jurisdiction, reasoning that, as to Geismann's individual claims, ZocDoc's Rule 68 offer "more than satisfies any recovery Geismann could make," so "there remain[ed] no case or controversy." Geismann I

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909 F.3d 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/radha-geismann-md-pc-v-zocdoc-inc-ca2-2018.