In Yaakov of Spring Valley v. Graduation Source, LLC, 2015 WL 8784250, at *3 (S.D.N.Y., 2015), Judge Roman refused to stay a TCPA case pending the outcome of SCOTUS jurisprudence because of a factual question whether the Defendant’s Rule 68 offer was adequate.
This Court agrees with the reasoning outlined in Kaye. In light of the difference between Defendants’ offer of judgment and the damages sought by Plaintiff, even if the Supreme Court holds that a complete offer of relief moots a TCPA case, this Court could not make such a finding based on the presently incomplete offer of judgment made by Defendants. Although a number of other district courts have stayed similar TCPA matters pending the outcome of Campbell-Ewald, see Eric B. Fromer Chiropractic, Inc., 2015 WL 6579779, at *2 (collecting cases), this case is readily distinguishable in light of Plaintiff’s contention that Defendants did not offer Plaintiff complete relief. Although many of the Kappel factors would likely weigh in favor of a stay had Defendants made a complete offer of judgment – here, purportedly $9,000 according to Plaintiff – absent such an offer, the outcome of Campbell-Ewald will likely have no bearing on this matter, and the Court sees no reason to await the Supreme Court’s decision. The Court notes, however, that although Plaintiff did not accept Defendants’ offer of judgment, Defendants are not precluded from making further offers in accordance with Rule 68 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 68(b) (“An unaccepted offer is considered withdrawn, but it does not preclude a later offer.”) Because the Supreme Court’s decision in Campbell-Ewald could affect the outcome of this matter should Defendants choose to make a new offer of judgment, the Court denies Defendants’ motion without prejudice to renewal.