Hepler v. Abercrombie & Fitch Co.

14-4113-cv Hepler v. Abercrombie & Fitch Co. 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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 22nd day of June, two thousand fifteen. 5 6 PRESENT: DENNIS JACOBS, 7 ROSEMARY S. POOLER, 8 PETER W. HALL, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 VERONIQUE HEPLER, individually and on 13 behalf of all others similarly 14 situated, DOMINIQUE MARCEAU, HILLARY 15 GIBBS, SHURIKA ROBERTS-CRAWFORD, REED 16 HOFFMAN, CYNTHIA CHAN, CAITLYN 17 ANGELIDIS, PATRICK O’CONNELL, HOLLY 18 ADRIAANSEN, KATHERINE BLAU, JENNY 19 SAM, 20 Plaintiffs-Appellants, 21 22 -v.- 14-4113-cv 23 24 ABERCROMBIE & FITCH CO., ABERCROMBIE & 25 FITCH STORES, INC., 1 1 Defendants-Appellees.* 2 - - - - - - - - - - - - - - - - - - - -X 3 4 FOR APPELLANTS: SETH R. LESSER (Fran L. Rudich, 5 Klafter Olsen & Lesser LLP, Rye 6 Brook, New York, Bradley L. 7 Berger, Berger Attorney P.C., 8 New York, New York, on the 9 brief), Klafter Olsen & Lesser 10 LLP, Rye Brook, New York. 11 12 FOR APPELLEES: DAREN S. GARCIA (Mark A. Kneuve, 13 Michael J. Ball & Natalie M. 14 McLaughlin, on the brief), 15 Vorys, Sater, Seymour and Pease 16 LLP, Columbus, Ohio. 17 18 Appeal from a judgment of the United States District 19 Court for the Eastern District of New York (Wexler, J.). 20 21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 22 AND DECREED that the judgment of the district court be 23 VACATED and that this matter be REMANDED. 24 25 Plaintiffs appeal from the judgment of the United 26 States District Court for the Eastern District of New York 27 (Wexler, J.), dismissing as moot their claims against 28 Abercrombie & Fitch Co. and Abercrombie & Fitch Stores, Inc. 29 (collectively, “Abercrombie”). We assume the parties’ 30 familiarity with the underlying facts, the procedural 31 history, and the issues presented for review. 32 33 On appeal from a judgment of dismissal for lack of 34 subject matter jurisdiction, we review factual findings for 35 clear error and legal conclusions de novo. Makarova v. 36 United States, 201 F.3d 110, 113 (2d Cir. 2000). 37 38 1. The following analysis applies to offers of 1 39 judgment: * The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above. 1 The offer need not comply with the requirements of Federal Rule of Civil Procedure 68. Doyle v. Midland Credit 2 1 (a) If the offer tenders less than complete relief, the 2 plaintiff is free to accept or not. If such an offer is 3 accepted, the court must enter judgment accordingly and 4 terminate the case; if such an offer is not accepted, the 5 case proceeds as usual. Tanasi v. New Alliance Bank, 6 --- F.3d ---, 2015 WL 2251472 (2d Cir. 2015). Under certain 7 circumstances, an unaccepted offer may shift costs to the 8 offeree. See Fed. R. Civ. P. 68(d). 9 10 (b) If the offer tenders complete relief, the court 11 should (absent additional procedural complications) enter 12 judgment pursuant to the terms of that offer, with or 13 without the plaintiff’s consent. McCauley v. Trans Union, 14 L.L.C., 402 F.3d 340, 341 (2d Cir. 2005); Cabala v. Crowley, 15 736 F.3d 226, 228 (2d Cir. 2013) (per curiam); accord 16 Tanasi, slip op. at 12. A defendant offering judgment for 17 complete relief is, in essence, submitting to the entry of 18 default judgment. Abrams v. Interco Inc., 719 F.2d 23, 32 19 (2d Cir. 1983) (Friendly, J.). Just as a defendant may end 20 the litigation by allowing default judgment, a defendant may 21 always end the litigation by offering judgment for all the 22 relief that is sought. Id.; McCauley, 402 F.3d at 342. 23 24 We have described an offer of judgment for complete 25 relief as “mooting” the case. However, the offer by itself 26 does not moot anything, Tanasi, slip op. at 11-12, since an 27 offer cannot bind the defendant to provide relief, McCauley, 28 402 F.3d at 342. It is the entry of judgment pursuant to 29 that offer that “moots” the case. Tanasi, slip op. at 11- 30 12; McCauley, 402 F.3d at 342. Mootness, in the 31 constitutional sense, would require dismissal for lack of 32 subject matter jurisdiction. An unaccepted offer of 33 judgment, however, does not impair subject matter 34 jurisdiction: the court retains jurisdiction to either enter 35 judgment in favor of the plaintiff (if the offer tenders 36 complete relief) or allow the case to proceed (if the offer 37 does not). 38 39 2. In light of the foregoing, the district court 40 erred by dismissing the case for lack of subject matter 41 jurisdiction based on Abercrombie’s unaccepted offers of Mgmt., Inc., 722 F.3d 78, 79 (2d Cir. 2013) (per curiam). It must, however, be an offer of judgment, not simply an offer of settlement. Cabala v. Crowley, 736 F.3d 226, 228- 29 (2d Cir. 2013) (per curiam). 3 1 judgment to Hepler and Marceau. Accordingly, we vacate and 2 remand for further proceedings consistent with this summary 3 order. 4 5 Abercrombie’s offers of judgment have, by now, lapsed. 6 Should Abercrombie renew those offers on remand, the court 7 should consider the following: 8 9 (a) We have previously addressed the appropriate course 10 of action when a court rules that certain relief is 11 unavailable, and the defendant subsequently makes an offer 12 of judgment for the remaining relief. ABN Amro 13 Verzekeringen BV v. Geologistics Americas, Inc., 485 F.3d 14 85, 92-93, 95 (2d Cir. 2007); Abrams, 719 F.2d at 32. 15 16 (b) As to the state law claims, the complaint alleges 17 not only supplemental jurisdiction, 28 U.S.C. § 1367, but 18 also original federal jurisdiction under the Class Action 19 Fairness Act, 28 U.S.C. § 1332(d). 20 21 For the foregoing reasons, and finding no merit in 22 Abercrombie’s other arguments, we hereby VACATE the judgment 23 of the district court and REMAND for further proceedings 24 consistent with this summary order. 25 26 FOR THE COURT: 27 CATHERINE O’HAGAN WOLFE, CLERK 28 29 30 31 4