14-1464-cv
Franco v. Allied Interstate LLC
 
                                  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.

      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 18th day of May, two thousand fifteen.

PRESENT: REENA RAGGI,
                 RICHARD C. WESLEY,
                 GERARD E. LYNCH,
                                 Circuit Judges.
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GILBERTO FRANCO, on behalf of himself and all others
similarly situated,
                                 Plaintiff-Appellant,
                 v.                                                      No. 14-1464-cv

ALLIED INTERSTATE LLC, FKA Allied Interstate, Inc.,
                                 Defendant-Appellee.
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APPEARING FOR APPELLANT:                 PHILIP D. STERN, (Andrew T. Thomasson,
                                         Debora K. Gerads, Thomasson Law, LLC,
                                         Jersey City, New Jersey, on the brief), Philip D.
                                         Stern, Attorney at Law, LLC, Union, New
                                         Jersey.

APPEARING FOR APPELLEE:                  CASEY DEVIN LAFFEY, Reed Smith LLP,
                                         New York, New York.

FOR AMICUS CURIAE:                       Adina Hyman Rosenbaum, Public Citizen
                                         Litigation Group, Washington, D.C., for Public
                                         Citizen, Inc.

      Appeal from a judgment of the United States District Court for the Southern District

of New York (Katherine B. Forrest, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on April 3, 2014, is VACATED, and the case

is REMANDED for further proceedings.

      Plaintiff Gilberto Franco (“Franco”) appeals from the judgment of the district court

dismissing his class action as moot. Franco argues that (1) defendant’s unaccepted Rule

68 offer did not moot his individual claim, and (2) even if his individual claim were

mooted, the class action would not be moot. We assume the parties’ familiarity with the

facts and the record of prior proceedings, which we reference only as necessary to explain

our decision to vacate and remand.

      On de novo review of the district court’s determination of mootness, see Amador v.

Andrews, 655 F.3d 89, 94–95 (2d Cir. 2011), we identify error in light of our most recent

controlling precedent, Tanasi v. New Alliance Bank, --- F.3d ----, No. 14-1389-cv (2d Cir.

May 14, 2015). Tanasi makes clear that Franco’s individual claim was not mooted by

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defendant’s Rule 68 offer, which did not result in the entry of any judgment against the

defendant. See id., slip op. at 11–13. Because Franco’s individual claim was not moot,

we need not address whether, had his claims been moot, the class action also would have

been moot. See id., slip op. at 1–2, 12–13.

      We therefore VACATE the judgment of the district court and REMAND for further

proceedings.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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