     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




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