Bank v. Caribbean Cruise Line, Inc. , 606 F. App'x 30 ( 2015 )

14-4720
Bank v. Caribbean Cruise Line
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 10th day of July, two thousand fifteen.
PRESENT:
ROSEMARY S. POOLER,
RAYMOND J. LOHIER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
Todd C. Bank, Individually and on Behalf of All
Others Similarly Situated,
Plaintiff-Appellant,
v. 14-4720
Caribbean Cruise Line, Inc.,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: TODD C. BANK, pro se, Kew Gardens,
NY.
FOR DEFENDANT-APPELLEE: John H. Pelzer, Greenspoon Marder,
P.A., Fort Lauderdale, FL.
1 Appeal from a judgment of the United States District Court for the Eastern District of New
2 York (Gleeson, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment is AFFIRMED.
5 Todd C. Bank, an attorney proceeding pro se, appeals from the consent judgment entered
6 on November 26, 2014 and the November 24, 2014 order, which dismissed as moot his claims
7 against Caribbean Cruise Line, LLC (“CCL”) under the Telephone Consumer Protection Act
8 (“TCPA”), 47 U.S.C. § 227(b), after CCL made an offer of judgment pursuant to Rule 68 of the
9 Federal Rules of Civil Procedure. We assume the parties’ familiarity with the underlying facts,
10 procedural history of the case, and issues on appeal.
11 “We review de novo a district court’s decision concerning Article III subject matter
12 jurisdiction insofar as that decision is based solely on conclusions of law.” Tanasi v. New Alliance
13 Bank, 786 F.3d 195, 198 (2d Cir. 2015).
14 Bank argues that the district court erred in dismissing his complaint, because CCL’s
15 unaccepted Rule 68 offer did not moot his claims. Bank is correct that “under the law of our
16 Circuit, an unaccepted Rule 68 offer alone does not render a plaintiff’s individual claims moot
17 before the entry of judgment against the defendant[ ].” Id. at 197 (emphasis added). Rather, where
18 there is an unaccepted offer of judgment that would afford the plaintiff complete relief, we have
19 held that “the typically proper disposition in such a situation is for the district court to enter
20 judgment against the defendant for the proffered amount and to direct payment to the plaintiff
21 consistent with the offer.” Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir. 2013) (citing McCauley
2
22 v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir. 2005)); see also Tanasi, 786 F.3d at 200
23 (explaining that if the parties do not “agree that a judgment should be entered against the
24 defendant, . . . the district court should not enter judgment against the defendant if it does not
25 provide complete relief”). Only after the entry of judgment in the plaintiff’s favor “is the
26 controversy resolved such that the court lacks further jurisdiction.” Cabala, 736 F.3d at 228.
27 That is precisely what happened in the present case. The district court entered a judgment
28 on November 26, 2014, which, consistent with CCL’s Rule 68 offer, held CCL liable to Bank in
29 the total sum of $3,000 in statutory damages with recoverable costs, and enjoined CCL from
30 calling Bank’s residential telephone number in a manner that violates the TCPA. Bank does not
31 contest that this judgment afforded him all the relief he sought. Nor does he deny that the district
32 court’s dismissal of his claim as moot was premised on the entry of a consent judgment in his
33 favor. Accordingly, it was not the unaccepted Rule 68 offer that rendered his claims moot. Rather,
34 his claims were mooted by the district court’s entry of a judgment providing him with complete
35 relief. See Tanasi, 786 F.3d at 200 (“Then, after judgment is entered, the plaintiff’s individual
36 claims will become moot for purposes of Article III.”); see also ABN Amro Verzekeringen BV v.
37 Geologistics Americas, Inc., 485 F.3d 85, 94 (2d Cir. 2007) (“Mootness, in the constitutional
38 sense, occurs when the parties have no ‘legally cognizable interest’ or practical ‘personal stake’ in
39 the dispute, and the court is therefore incapable of granting a judgment that will affect the legal
40 rights as between the parties.”).
41 For the foregoing reasons, we AFFIRM the judgment of the district court.
42 FOR THE COURT:
43 Catherine O=Hagan Wolfe, Clerk
3