Ahmed v. City of N.Y.
Ahmed v. City of N.Y.
Opinion of the Court
*668Plaintiffs Sanwar Ahmed and Ana Buestan are "street vendors" in New York City who allegedly "had their vending carts and other property seized and disposed of" by New York City Department of Health and Mental Hygiene inspectors "without legal authority to do so." (Compl. ¶ 2.) Ahmed is an immigrant from Bangladesh and a licensed New York City food vendor who sells jhal muri, a Bangladeshi snack of puffed rice and spices, from his food cart. (Id. ¶ 8.) Buestan is an Ecuadorian immigrant who sells flavored ices from her food cart and is also a licensed food vendor. (Id. ¶ 9.)
They bring claims for violations of their constitutional rights pursuant to
On August 18, pursuant to Fed. R. Civ. P. 68, defendants presented each plaintiff with an identical offer of judgment in the amount of $2,501 "plus reasonable attorneys' fees, expenses and costs to the date of this offer." (Doc. 27-1; 27-2.) That figure exceeds the amount of property damages claimed by Ahmed and Buestan,
Ahmed and Buestan did not respond to the offers, which expired on September 1. Pursuant to Fed. R. Civ. P. 68, "[a]n unaccepted offer is considered withdrawn" and "is not admissible except in a proceeding to determine costs." In addition, the United States Supreme Court confirmed last year in Campbell-Ewald Co. v. Gomez that "an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case." --- U.S. ----,
Ahmed and Buestan have now moved pursuant to Fed. R. Civ. P. 7(b) for an order "striking the Rule 68 Offer of Judgment served" on each plaintiff "and declaring the Rule 68 Offer of Judgment to have no effect." (Doc. 25.) For the following reasons, the Court denies plaintiffs' motion.
Rule 68 reads in pertinent part as follows:
(a) Making an Offer; Judgment on an Accepted Offer. At least 14 *669days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued....
(b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.
...
(d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
Plaintiffs first suggest that the offers should be stricken because enforcing Rule 68 here would conflict with Congress's intent to promote civil rights actions pursuant to
Plaintiffs next advance the procedural posture of this case-a putative class action-as a reason to grant their motion. Rule 68, plaintiffs urge, is simply inapplicable to class actions. Were Rule 68 to apply to class actions, they contend, defendants could effectively defeat a class action by making a Rule 68 offer to each named plaintiff. However, the great weight of authority in this Circuit holds that " Rule 68 also applies to class actions." Morgan v. Account Collection Tech., LLC , No. 05-CV-2131 (KMK),
It cannot be gainsaid that Rules 68 and 23 do not fit hand in glove. Before Campbell-Ewald , some courts feared that even unaccepted offers of complete relief could be used to "pick off" individual plaintiffs and effectively block entire class actions. See, e.g., McDowall v. Cogan ,
Plaintiffs' motion, however, presents an easy case: no motion for certification has been granted or even filed. The individual *670plaintiffs, and not any as-yet theoretical class, remain the "opposing part[ies]" addressed by Rule 68. Ahmed and Buestan are entitled to receive-and, if they wish, to accept-offers of judgment on their claims for relief. Cf. Ambalu v. Rosenblatt ,
Accordingly, plaintiffs' motion to strike or declare the Rule 68 offers of judgment to be of "no effect" is denied.
In Ahmed and Buestan's initial disclosures pursuant to Fed. R. Civ. P. 26(a), they claimed $2,300 in damages for the loss and destruction of their property. (Doc. 30-1.)
Reference
- Full Case Name
- Sanwar AHMED and Ana Buestan, individually and on behalf of all others similarly situated v. CITY OF NEW YORK, and individually and in their official capacity as New York City Department of Health and Mental Hygiene Inspectors Joseph Persaud and Uko Utin and John Does 1-5
- Cited By
- 1 case
- Status
- Published