    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


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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


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