Davey v. Pierce County Council

• Court: District Court, W.D. Washington
• Decided: March 6, 2023
• Docket: 3:21-cv-05068
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JUSTIN ALLEN DAVEY, CASE NO. 3:21-cv-05068-LK-SKV 11 Plaintiff, ORDER REQUIRING 12 v. SUPPLEMENTAL BRIEFING 13 PIERCE COUNTY COUNCIL et al., 14 Defendants. 15

16 Pursuant to Federal Rule of Civil Procedure 68(a), Defendant Pierce County extended an 17 offer of judgment to Plaintiff Justin Allen Davey (also known as Echota Wolfclan) as to all 18 Defendants in this action for his claims arising under 42 U.S.C. § 1983. Dkt. No. 97-1 at 3–4; see 19 Dkt. No. 81 at 6–9. The offer is for $33,000.00, “exclusive of all costs and fees, including 20 attorney’s fees, accrued in this case by Plaintiff to the date and time of this Offer.” Dkt. No. 97-1 21 at 3 (emphasis in original). Plaintiff timely accepted the offer. Id. at 2; see also Dkt. No. 96. 22 Under Rule 68(a), “[a]t least 14 days before the date set for trial, a party defending against 23 a claim may serve on an opposing party an offer to allow judgment on specified terms, with the 24 costs then accrued.” Fed. R. Civ. P. 68(a). If the opposing party serves written notice accepting the 1 offer within 14 days, either party can file the offer and notice of acceptance and proof of service, 2 and the then court must enter judgment. Id. The district court’s role in this context is “ministerial 3 rather than discretionary,” assuming there is a valid offer and acceptance. Kubiak v. Cnty. of 4 Ravalli, 32 F.4th 1182, 1187–88 (9th Cir. 2022) (internal quotations omitted) (quoting Mallory v.

5 Eyrich, 922 F.2d 1273, 1279 (6th Cir. 1991)). However, an offer is not valid when it “implicitly 6 or explicitly provide[s] that the judgment not include costs[.]” Marek v. Chesny, 473 U.S. 1, 6 7 (1985) (emphasis in original); see also Thompson v. S. Farm Bureau Cas. Ins. Co., 520 F.3d 902, 8 904 (8th Cir. 2008) (per curiam) (“Although a Rule 68 offer of judgment may offer a lump-sum 9 payment that includes costs, such an offer may not exclude costs.”).1 This is because such an offer 10 does not enable a court to render judgment: 11 If an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer 12 does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an 13 additional amount which in its discretion . . . [is] sufficient to cover the costs.

14 Marek, 473 U.S. at 6. 15 Here, Defendants’ Rule 68 offer explicitly provides that the $33,000 judgment does not 16 include costs. Dkt. No. 97-1 at 3. Such offers have been held invalid. See, e.g., Daramy v. Arctic 17 Storm Mgmt. Grp. LLC, No. 21-1431-MJP, 2022 WL 741876, at *3–4 (W.D. Wash. Mar. 11, 2022) 18 (striking praecipe to enter judgment where offer for a specific sum was “exclusive of attorney fees 19 to the date of the offer” and accordingly failed to meet the requirements of Rule 68; noting that 20 “[i]f the offer had included costs—or even been silent about costs, see Marek, 473 U.S. at 6—it 21 would have been valid.”). Although at least one court in this district has construed an offer like 22 23 1 The term “costs” in Rule 68 refers to “all costs properly awardable under the relevant substantive statute,” United 24 States v. Trident Seafoods Corp., 92 F.3d 855, 860 (9th Cir. 1996), which here includes attorney’s fees, 42 U.S.C. § 1988(b). 1 Pierce County’s to allow for an award of costs and fees to the plaintiff,2 this Court considers Pierce 2 County’s offer invalid to the extent it purports to exclude costs from the judgment. If the parties 3 instead intended that the Court award costs in its discretion, the offer should have either said so or 4 been silent regarding costs. See, e.g., Miller v. City of Portland, 868 F.3d 846, 849, 851 (9th Cir.

5 2017) (Rule 68 offer for $1,000 “plus costs (excluding any prevailing fee), and including 6 reasonable attorney’s fees to be determined by the Court” was valid). In the Court’s view, it is 7 better to be specific than silent. See, e.g., McGraw-Hill Glob. Educ., LLC. v. Jones, 714 F. App’x 8 500, 503 (6th Cir. 2017) (“We construe ambiguity in a Rule 68 offer against the drafter.”); Nusom 9 v. Comh Woodburn, Inc., 122 F.3d 830, 832–33 (9th Cir. 1997) (offer of “$15,000, together with 10 costs accrued,” did not foreclose plaintiffs from seeking attorney fees “because it d[id] not clearly 11 and unambiguously waive or limit them”). 12 Accordingly, no later than seven days from the date of this Order, the parties shall file 13 supplemental briefs of no more than six pages each (although they may also file a joint brief of no 14 more than six pages) addressing whether the parties intended that the Court award costs (including

15 fees) in its discretion, and if not, showing cause why the Court should not strike docket numbers 16 96 and 97 due to an invalid Rule 68 offer. Of course, the parties are also free to mutually agree to 17 revoke and redo the offer and acceptance. If they do so within seven days, supplemental briefing 18 will not be necessary. 19 Dated this 6th day of March, 2023. 20 A 21 Lauren King United States District Judge 22

23 2 See Washington Shoe Co. v. A-Z Sporting Goods, Inc., No. C09-1042-RSL, 2013 WL 4094697, at *1 (W.D. Wash. Aug. 12, 2013) (determining that defendant’s Rule 68 offer to allow the entry of judgment “in the total sum of Thirty 24 Thousand Dollars and 00/100 Cents ($30,000.00), exclusive of costs and reasonable attorney’s fees, as full and final settlement of all claims asserted in this action,” entitled the plaintiff to an award of costs, including attorney’s fees).