govinfo:USCOURTS-nynd-1_25-cv-00238-0

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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
____________________________________________ 
 
EVAN DESSO, Individually and For Others 
Similarly Situated 
 
 Plaintiff, 
vs. 1:25-CV-238 
 (MAD/PJE) 
PARKLAND AMBULANCE SERVICE, INC., 
 
 Defendant. 
____________________________________________ 
 
APPEARANCES: OF COUNSEL: 
 
JOSEPHSON DUNLAP ANDREW DUNLAP, ESQ. 
5847 San Felipe Street - Suite 2400 MICHAEL JOSEPHSON, ESQ. 
Houston, Texas 77057 RICHARD J. BURCH, ESQ. 
Attorneys for Plaintiff TRAVIS J. GREFENSTETTE, ESQ. 
 
BARCLAY DAMON LLP MICHAEL J. SCIOTTI, ESQ. 
Barclay Damon Tower ROSS M. GREENKY, ESQ. 
125 East Jefferson Street - 12th Floor 
Syracuse, New York 13202 
Attorneys for Defendant 
 
BARCLAY DAMON LLP BRIENNA LAUREN BRAMAN, ESQ. 
80 State Street 
Albany, New York 12207 
Attorney for Defendant 
 
Mae A. D'Agostino, U.S. District Judge: 
 
MEMORANDUM-DECISION AND ORDER 
I. INTRODUCTION 
 On February 21, 2025, Plaintiff Evan Desso filed this class and collective action on behalf 
of himself and others similarly situated to recover alleged unpaid wages, untimely wages, and 
other damages from Defendant Parkland Ambulance Services, Inc. See Dkt. No. 1. On 

 
 
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December 1, 2025, Defendant answered the complaint. See Dkt. No. 32. On February 19, 2026, 
Defendant served Plaintiff with an offer of judgment pursuant to Rule 68 of the Federal Rules of 
Civil Procedure (the "Offer of Judgment"), which Plaintiff purported to accepted on February 26, 
2026. See Dkt. No. 37 at 1. The Offer of Judgment states in relevant part: 
Pursuant to Rule 68 of the Federal Rules of Civil Procedure, 
Defendant . . . hereby offers to allow Plaintiff Evan Desso, 
Individually and For Others Similarly Situated ("Plaintiff") to take a 
judgment against Defendant in this action for the total sum of Two 
Hundred Fifty Thousand Dollars ($250,000.00), inclusive of 
Plaintiff's reasonable attorneys' fees, expenses and costs incurred as 
of the date of this offer, for Plaintiff's claims. 
 
Dkt. No. 37-1 at 1. 
 
 On March 6, 2026, Defendant requested that the Court schedule a phone conference to 
discuss a disagreement between the parties regarding the scope of the Offer of Judgment. See 
Dkt. No. 39. In the letter request, Defendant also represented that the Offer of Judgment was 
intended to bring about a class-wide resolution of the claims brought by Plaintiff and others 
similarly situated, but the Notice of Acceptance of Rule 68 Offer of Judgment (the "Acceptance"), 
filed by Plaintiff, attempted to alter the terms of the Offer of Judgment by changing the case 
caption and identifying only Plaintiff in his individual capacity as the acceptor. See id. at 1; Dkt. 
No. 37 at 1. The Offer of Judgment lists the Plaintiff as "Evan Desso, Individually and For Others 
Similarly Situated," but the caption of the Acceptance states that the Plaintiff is only "Evan 
Desso." Compare Dkt. No. 37-1 with Dkt. No. 37. In response to Defendant's letter, Plaintiff 
filed a letter which asserted that judgment in the amount of $250,000 must be entered solely in 
favor of Plaintiff individually, as no other class member had joined the case by filing a notice of 
consent. See Dkt. No. 40 at 1-2. 

 
 
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 On March 16, 2026, the Court held a telephone status conference to discuss the parties' 
letters. See Text Minute Entry, dated Mar. 16, 2026. During the conference, the Court directed 
the parties to discuss resolution and referred the parties to Electra v. 59 Murray Enters., Inc., 987 
F.3d 233 (2d Cir. 2021) and the underlying district court decision in Toth v. 59 Murray Enters., 
Inc., No. 15-CV-8028, 2017 WL 3605493 (S.D.N.Y. July 26, 2017), aff'd sub nom. Electra v. 59 
Murray Enters., Inc., 987 F.3d 233 (2d Cir. 2021). See id. In accordance with the Court's 
directive, Defendant submitted a status report regarding the parties' efforts to resolve their 
disagreement about the Offer of Judgment. See Dkt. No. 43. As the parties were unable to 
resolve their contentions, the Court permitted each side to set forth their arguments in additional 
briefing. See Dkt. No. 44. 
 The parties submitted their respective letter briefs on March 31, 2026. See Dkt. Nos. 46, 
47. Defendant urges the Court to refuse to enter judgment and strike the Acceptance, arguing 
that, because Plaintiff altered the terms of the offer, there was no meeting of the minds. See Dkt. 
No. 46 at 2-7. Plaintiff contends that the Acceptance was valid and judgment should be entered 
because no other class members had joined the action and Plaintiff could only accept the Offer of 
Judgment on his own behalf. See Dkt. No. 47 at 3-6. 
II. BACKGROUND
1 
Generally, Plaintiff alleges as follows. Plaintiff was employed by Defendant as a "Patient 
Care Employee" and alleges that Defendant failed to pay its Patient Care Employees proper 
overtime wages. Dkt. No. 1 at ¶¶ 1-5. Instead, Defendant allegedly rounded Plaintiff's and the 
other Patient Care Employees' hours to the nearest quarter hour, while simultaneously 
 
1 The following recitation of facts is drawn from Plaintiff's complaint. See Dkt. No. 1. The 
Court makes no findings regarding the strength or validity of Plaintiff's claims at this time. 

 
 
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"prohibiting them from 'clocking in' more than 7.5 minutes before their scheduled shift start time 
and 'clocking out' more than 7.5 minutes after their scheduled shift end time." Id. at ¶ 6. 
Additionally, Defendant allegedly paid Plaintiff "and the other Patient Care Employees non-
discretionary bonuses and shift differentials that it fail[ed] to include in their regular rates of pay 
for overtime purposes." Id. at ¶ 8. Plaintiff also alleges technical violations of the New York 
Labor Law ("NYLL"), such as failure to pay manual workers within seven calendar days and 
failure to provide accurate wage statements. See id. at ¶¶ 11-16. Plaintiff brings Fair Labor 
Standards Act ("FLSA") collective action and NYLL class action claims for failure to pay 
overtime wages, failure to pay timely wages, and failure to comply with the NYLL wage 
statement requirements. See id. at ¶¶ 122-48. 
III. DISCUSSION 
A. Applicable Law 
Collective actions filed under FLSA § 16(b) require each plaintiff to affirmatively opt in 
to the action by submitting filed, written consent. See 29 U.S.C. § 216(b). Without this consent, 
no person will be bound by or may benefit from a judgment. See id.; Vogel v. Am. Kiosk Mgmt., 
371 F. Supp. 2d 122, 127 (S.D.N.Y. 2005) (citing LaChapelle v. Owens–Illinois, Inc., 513 F.2d 
286, 288 (5th Cir. 1975)). "Consequently, even if the section 216(b) plaintiff can demonstrate 
that there are other plaintiffs 'similarly situated' to him, he has no right to represent them absent 
their consent by an opt-in." Vogel, 371 F. Supp. 2d at 128 (citing 29 U.S.C. § 216(b)). If no 
additional plaintiffs opt in to the lawsuit, the FLSA § 16(b) plaintiff advances only his or her own 
individual claims. See 29 U.S.C. § 216(b); Vogel, 371 F. Supp. 2d at 128. As for class actions 
under Rule 23, "each person within the [class] description is considered to be a class member and, 

 
 
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as such, is bound by judgment, whether favorable or unfavorable, unless he has 'opted out' of the 
suit." Vogel, 371 F. Supp. 2d at 127 (quoting LaChapelle, 513 F.2d at 288). 
Pursuant to Rule 68 of the Federal Rules of Civil Procedure, a defendant "may serve on 
[the plaintiff] an offer to allow judgment on specified terms, with the costs then accrued." Fed. R. 
Civ. P. 68(a). If accepted, the judgment is entered against the defendant. See id. If rejected, the 
offer is deemed withdrawn. See Fed. R. Civ. P. 68(b). Importantly, "[i]f 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." Fed. R. Civ. P. 68(d). 
Under Rule 68, an offer of judgment may moot an FLSA collective action where the offer 
satisfies all damages claimed by the named plaintiff, plus all costs and attorneys' fees. See Vogel, 
371 F. Supp. 2d at 128. "Rule 68 also applies in class actions, where prior to class certification 
defendant offers plaintiff the maximum amount that plaintiff could recover at trial." Ward v. 
Bank of N.Y., 455 F. Supp. 2d 262, 268 (S.D.N.Y. 2006) (collecting cases). However, "courts are 
wary of attempts by defendants to evade FLSA collective actions by making Rule 68 offers of 
judgment 'at the earliest possible time.'" Id. (collecting cases). And, "[i]n the context of Rule 23, 
. . . courts are [also] alert to attempts by defendants to avoid class actions by making Rule 68 
offers of judgment to individual named plaintiffs before class certification." Id. (collecting cases). 
FLSA and NYLL claims are often brought together in a single federal action, invoking 29 
U.S.C. § 216(b) to bring FLSA collective action claims and Rule 23 of the Federal Rules of Civil 
Procedure to bring NYLL class action claims. See Shahriar v. Smith & Wollensky Rest. Grp., 
Inc., 659 F.3d 234, 244 (2d Cir. 2011) ("Because FLSA and NYLL claims usually revolve around 
the same set of facts, plaintiffs frequently bring both types of claims together in a single action 
using the procedural mechanisms available under 29 U.S.C. § 216(b) to pursue the FLSA claims 

 
 
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as a collective action and under Rule 23 to pursue the NYLL claims as a class action under the 
district court's supplemental jurisdiction"). "Moreover, named plaintiffs often accept settlement 
of their individual claims under Rule 68 while their associated FLSA collective action and Rule 
23 class-action have yet to be certified." Chovon v. Hot Pot Flushing LLC, No. 19-CV-3000, 
2020 WL 3051442, *1 (E.D.N.Y. June 8, 2020). 
 "If the terms of a Rule 68 offer are not specific and clear, there are opportunities for both 
confusion and mischief." Sanchez v. Prudential Pizza, Inc., 709 F.3d 689, 691 (7th Cir. 2013). 
As the Seventh Circuit further explained: 
Offers of judgment under Rule 68 are different from contract offers. 
When a contract offer is made, the offeree can reject it without legal 
(as distinct from economic) consequences. Plaintiffs who receive 
Rule 68 offers, however, are "at their peril whether they accept or 
reject a Rule 68 offer." . . . 
 
[T]herefore, we treat Rule 68 offers differently than we treat 
ordinary contract offers . . . . For example, Rule 68 offers may not 
be revoked during the 14-day period established by the Rule. We 
have rejected the applicability of the contract doctrine of rescission 
to Rule 68 offers, and we have been reluctant to allow defendants to 
challenge the meaning of an offer of judgment, either before or after 
acceptance . . . . Most important, because the consequences of a 
Rule 68 offer are so great, the offering defendant bears the burden 
of any silence or ambiguity concerning attorney fees. 
 
Id. at 692 (internal citations omitted). 
 Precedent in the Second Circuit makes clear, however, that a Rule 68 offer is only valid if 
there is a "meeting of the minds" as understood under common law contract principles. Electra, 
987 F.3d at 246 (collecting cases). In Electra, the defendants served a Rule 68 Offer of Judgment 
on the plaintiffs. Id. at 242. The offer of judgment stated in relevant part that the defendants 
offered "to [the p]laintiffs collectively to take a judgment against [the d]efendants in the amount 
of $82,500.00, inclusive of interest, costs and attorneys' fees, and without any admission of 

 
 
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liability, on each of the Causes of Action contained in the Complaint . . . ." Id. (citation omitted). 
The plaintiffs returned to the defendants a document entitled "Plaintiffs' Acceptance of 
Defendants' Rule 68 Offer of Judgment" which stated, in relevant part: 
. . . [the p]laintiffs hereby accept [the d]efendants [sic] June 15, 
2017 offer to allow judgment to be taken against [the d]efendants 
"in the amount of $82,500, inclusive of interest, costs and attorneys' 
fees, and without admission of liability, on each of the Causes of 
Action contained in the Complaint . . . ." 
 
[The p]laintiffs hereby accept a total of six hundred and sixty 
thousand dollars ($660,000.00), inclusive of interest, costs and 
attorneys' fees, for full and final settlement of all eight (8) Causes of 
Action contained in the Complaint based upon facts existing as of 
the date of acceptance of the offer. 
 
Id. at 243 (citation omitted) (emphasis added). 
 Following receipt of the plaintiffs' purported acceptance, the defendants filed a letter in the 
district court urging that no judgment be entered because, in the defendants' Rule 68 offer, "'[t]he 
figure of $660,000 was not mentioned . . . and was clearly not contemplated; rather, $82,500 was 
intended to dispose of the entire case,'" and the plaintiffs' counsel was "'well aware of [the 
d]efendants' stated intent based on written communications among counsel that directly preceded 
the offer.'" Id. (citation omitted). The plaintiffs filed a letter with the district court opposing the 
defendants' request that the court decline to file a judgment. See id. The plaintiffs argued that 
"the $82,500 referred to in the Rule 68 Offer expressly applied to 'each' of the complaint's causes 
of action, . . . and urged the district court to disregard 'extrinsic evidence[.]'" Id. (internal citations 
and emphasis omitted). 
 The district court declined to enter the plaintiffs' proposed judgment, "reasoning that the 
offer was ambiguous and citing the district court's supervisory authority over the case." Id. 
(footnote omitted). Eventually, an appeal followed after summary judgment was entered in the 

 
 
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defendants' favor two years later. See id. at 244. Appellants (the plaintiffs) contended that the 
district court erred in concluding that Appellants had not accepted Appellees' (the defendants) 
offer of judgment, arguing that (1) "the contract unambiguously offered $660,000"; and (2) "even 
if the offer was ambiguous," Second Circuit case law "requires that the offer must be construed 
against the offeror, without looking to extrinsic evidence." Id. at 245. In response, Appellees 
argued "that the offer was ambiguous, and this ambiguity rendered the offer inoperative." Id. 
 The Second Circuit affirmed the district court's order declining to enter judgment, and 
noted that "'Rule 68 offers of judgment and acceptances thereof are contracts to be interpreted 
according to ordinary contract principles.'" Id. at 244 (citation omitted). "'The primary goal of 
contract interpretation is to effectuate the intent of the parties as manifested by the language used 
in the contract.'" Id. (citation omitted). 
 As the Second Circuit explained, "[f]or a valid Rule 68 agreement to have been formed, 
there must have been a 'meeting of the minds' under elementary principles of contract law." Id. at 
246 (collecting cases). Indeed, "'[t]he plain purpose of Rule 68 is to encourage settlement and 
avoid litigation . . . . The Rule prompts both parties to a suit to evaluate the risks and costs of 
litigation, and to balance them against the likelihood of success upon trial on the merits.'" Id. 
(quoting Marek v. Chesny, 473 U.S. 1, 5 (1985)). "With respect to a suit seeking money damages, 
the process requires that the plaintiff, who can total his damages and the costs already incurred, be 
able to 'compar[e] th[at] sum to the amount offered.'" Id. (quoting Marek, 473 U.S. at 7). "'Thus, 
Rule 68 offers must provide "a clear baseline from which plaintiffs may evaluate the merits of 
their case relative to the value of the offer."'" Id. (quoting Basha v. Mitsubishi Motor Credit of 
Am., Inc., 336 F.3d 451, 455 (5th Cir. 2003)); see also Stanczyk v. City of New York, 752 F.3d 
273, 283 (2d Cir. 2014) ("Rule 68 offers . . . must be capable of comparison to the judgment 

 
 
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ultimately obtained") (citation omitted). Ultimately, "[t]he Rule 68 process does not work if the 
dollar amount offered is not clear." Id. 
 After explaining the law, the Circuit held as follows: 
 
We conclude that Appellees' Rule 68 Offer of Judgment was, 
indeed, ambiguous. As the district court noted, the sentence in the 
Rule 68 offer reading, "Defendants hereby offer to Plaintiffs 
collectively to take a judgment against Defendants in the amount of 
$82,500.00 . . . on each of the Causes of Action contained in the 
Complaint," . . . is reasonably susceptible to more than one 
interpretation because the word "collectively" contradicts the use of 
the word "each." The Rule 68 offer therefore was ambiguous in its 
most crucial term: the amount of settlement. Appellants' arguments 
to the contrary simply ignore this contradiction and are accordingly 
unconvincing. 
. . . 
 
In sum, because the Rule 68 offer was ambiguous as to what dollar 
amount the Appellees were offering—i.e., as to the most 
fundamental aspect of the proposed contract, the amount to be 
specified in the judgment—the Offer of Judgment was not a proper 
Rule 68 offer. There was here no mutual assent; Appellees' Offer of 
Judgment was of no effect under Rule 68; the district court properly 
refused to enter the judgment proposed by Appellants; and 
Appellants are not subject to the costs-shifting consequences that 
would have occurred if Appellees' Offer of Judgment had been a 
proper Rule 68 offer. 
 
Because the parties never reached agreement on a settlement 
amount, the district court correctly refused to resolve ambiguities in 
Appellants' favor and enter judgment for Appellants pursuant to 
their purported acceptance of the Rule 68 offer. We therefore 
affirm the July 26, 2017 order of the district court. 
 
Id. at 246-47 (internal citations omitted). 
 Relatedly, the Second Circuit also found that, even if a Rule 68 contract had been formed, 
the district court's refusal to enter judgment would be supported by the doctrine of unilateral 
mistake. See id. at 247 ("'Where a mistake of one party at the time a contract was made as to a 
basic assumption on which he made the contract has a material effect . . . that is adverse to him,' 

 
 
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and 'the other party had reason to know of the mistake,' 'the contract is'— except in circumstances 
not existing here—'voidable by him'") (quoting Restatement (Second) of Contracts § 153(b) 
(1981)). 
B. Application 
 Here, upon careful consideration of the record, the Court finds no judgment can be entered 
because the Offer of Judgment was ambiguous and the circumstances demonstrate that there was 
no meeting of the minds. 
 Plainitff is correct that Defendant had no power to offer a class settlement to a non-
existent class. See Dkt. No. 47 at 1-3 (citing LaBarca v. GRJH, Inc., No. 6:16-CV- 826, 2018 
WL 1136918, *9-10 (N.D.N.Y. Mar. 1, 2018).
2 However, the fact that Defendant attempted to 
make an offer that was a legal and factual impossibility does not mean that a Rule 68 contract was 
somehow validly formed on Plaintiff's terms. 
 Plaintiff had no authority to unilaterally change the terms of the Offer of Judgment (nor to 
change the caption to fit his one-sided interpretation). Plaintiff contends that "the fact [Plaintiff's] 
filing contains [an] error in the caption is of no moment." Dkt. No. 47 at 4. In support of this 
assertion, Plaintiff cites United States v. Edwards, where the Eastern District of New York noted 
that the "'Second Circuit often makes [case caption] corrections sua sponte, and without citation 
to any specific Rule or other authority.'" Id. (quoting United States v. Edwards, 241 F.R.D. 146, 
148 (E.D.N.Y. 2007)). Although the Second Circuit may have the ability to unilaterally change 
 
2 On the other hand, Plaintiff is incorrect in stating that LaBarca "control[s]" here. Dkt. No. 47 at 
1. In LaBarca, this Court construed the ambiguity of whether the Rule 68 judgment at issue 
encompassed attorneys' fees against the offeror. See LaBarca, 2018 WL 1136918, at *4-7. Here, 
the Court must determine whether the Offer of Judgment itself was validly accepted, not merely 
whether attorneys' fees are accounted for. Additionally, unlike here, in LaBarca, judgment had 
already been entered and the offeror moved pursuant to Rules 59 and 60 of the Federal Rules of 
Civil Procedure. See id. at *7-8. 

 
 
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case captions, Plaintiff cites to no authority which vests him with such power.3 The Court does 
not accept Plaintiff's characterization that the changed caption in the Acceptance was an "error"—
the circumstances indicate a tactical maneuver by Plaintiff's counsel aimed at capitalizing on 
defense counsel's strategic misstep of offering a class-wide Rule 68 offer before a class was 
formed. 
 Indeed, the history of the parties' settlement negotiations seems to indicate that Plaintiff's 
counsel likely knew that the Offer of Judgment contemplated a class-wide settlement (even if 
Defendant was mistaken regarding its ability to resolve the matter with regard to the various 
potential class members). According to Defendant, settlement of this matter had only been 
discussed on a class-wide basis and, during such discussions, "Defendant . . . produced to Plaintiff 
information about the number of class members and payroll information for the class." Dkt. No. 
46 at 5. To the extent Plaintiff would invite the Court to ignore such history, as explained in Toth, 
a party's assertion that they are entitled to ignore negotiation history in evaluating the intent of a 
Rule 68 offer "strains credulity." Toth v. 59 Murray Enters., Inc., No. 15-CV-8028, 2017 WL 
3605493, *2 (S.D.N.Y. July 26, 2017) (citing Steiner v. Lewmar, Inc., 816 F.3d 26, 33-34 (2d Cir. 
2016) (courts may consider "all the circumstances" to evaluate the parties' intent)). 
 Moreover, Plaintiff's assertion that Defendant intended to offer $250,000 to resolve 
Plaintiff's individual wage claims is simply implausible. Plaintiff was compensated $19.50 per 
hour for his laudable work as an Emergency Medical Technician and paramedic. See Dkt. No. 1 
 
3 For the avoidance of doubt, Plaintiff does not have the authority to unilaterally change the case 
caption. See Turner v. City of New York, No. 18-CV-9626, 2019 WL 6173701, *1 n.2 (S.D.N.Y. 
Nov. 19, 2019) ("It should go without saying that a party may not unilaterally amend an 
established case caption . . ."); see also Tchatat v. City of New York, 795 Fed. Appx. 34, 38 (2d 
Cir. 2019) ("Official captions may be amended with permission from the Court") (citation 
omitted). 

 
 
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at ¶ 47. The complaint states that Plaintiff was employed by Defendant from approximately July 
2021 through October 2024, working 48 hours per week. Id. at ¶¶ 21, 44, 46. Assuming he 
worked 48 hours during each of these 174 weeks, with no time off, and was paid at 1.5 times his 
hourly rate of $19.50 for 8 hours of overtime per week, Plaintiff would have earned $176,436 
during the entire time he was employed by Defendant.4 
 Under the FLSA and NYLL, an aggrieved employee can recover unpaid overtime wages 
and be made whole for violations of the NYLL's wage statement and timeliness requirements. 
However, it is improbable that Defendant intended to settle Plaintiff's individual claims for nearly 
$75,000 more than Plaintiff ever possibly earned during his term of employment. Tellingly 
absent from Plaintiff's written submissions is any allegation that he actually expected to 
individually recover $250,000 in this matter.
5 
 
4 The Court is cognizant that Plaintiff alleges he was not properly paid overtime during his 
employment with Defendant. Additionally, it is very likely that Plaintiff did not work 48 hours 
every single week from July 2021 through October 2024. These figures merely illustrate the 
maximum amount Plaintiff theoretically could have earned during the relevant time period. 
 
5 During the March 16, 2026 telephone conference, Plaintiff's counsel stated that that they 
believed Defendant intended to pay Plaintiff $250,000 for his individual claims "because of our 
experience receiving large offers of judgment from defendants who want to get rid of the case." 
Dkt. No. 42 at 3. Plaintiff's counsel did not take the opportunity to provide examples of such 
cases in in the letter brief submitted on March 31, 2026. See generally Dkt. No. 47. Defense 
counsel, on the other hand, supplied four examples of cases that paint a different picture. In these 
cases, the law firm representing Plaintiff here represented other plaintiffs in Rule 23 class actions. 
See Dkt. No. 46 at 5-6. In all four of these cases, a Rule 68 offer was made solely to the named 
plaintiff with no reference to the purported class and the acceptance mirrored the language of the 
offer. See id. at 10. The judgments entered in these cases were in the amounts of $16,000, 
$45,235.10, $20,000, and $10,280, see id. at 15-42; nowhere near the sum of $250,000 at issue 
here. Of course, this short list does not encompass every case litigated by Plaintiff's counsel and 
is not necessarily dispositive of the present issues. However, Plaintiff's counsel has provided no 
substantiation for the bold proclamation that their experience in other cases would lead to a 
reasonable inference that Defendant intended to offer $250,000 to the individual Plaintiff in the 
present matter. 

 
 
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 The record before this Court reveals that Defendant and Plaintiff had drastically different 
interpretations of who the Offer of Judgment was intended to bind. Defense counsel's use of the 
singular "Plaintiff" to define "Evan Desso, Individually and For Others Similarly Situated" in the 
Offer of Judgment makes the terms of the offer unclear. Dkt. No. 37-1 at 1. For these reasons, 
the Court concludes the Offer of Judgment was ambiguous and, therefore, the parties never 
reached an agreement regarding who was to take judgment against Defendant. Accordingly, the 
Court finds the Offer of Judgment invalid. See Toth, 2017 WL 3605493, at *2 ("[T]he case law 
makes clear that a court has the power to declare a Rule 68 offer invalid because of ambiguity, 
among other reasons") (collecting cases).
6 
IV. CONCLUSION 
 After careful review of the pleadings, the parties' submissions, the entire record in this 
matter, and the applicable law, the Court hereby 
 ORDERS that the Notice of Acceptance with Offer of Judgment (Dkt. No. 37) is 
STRICKEN; and the Court further 
 ORDERS that judgment will not be entered on Dkt. No. 37; and the Court further 
 ORDERS that the parties' contentions in their letter briefs (Dkt. Nos. 39, 40, 46, 47) are 
RESOLVED; and the Court further 
 ORDERS that this matter is referred to Magistrate Judge Paul J. Evangelista for further 
proceedings, including the scheduling of a Rule 16 conference; and the Court further 
 
 
 
6 As Defendant immediately acted to rectify the issues related to the Offer of Judgment and bring 
it to the Court's attention, Plaintiff has experienced no prejudice and presently bears no Rule 68(d) 
exposure. 

 
 
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 ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision 
and Order on the parties in accordance with the Local Rules. 
IT IS SO ORDERED. 
Dated: June 11, 2026 
 Albany, New York 

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