concluding that the term “costs” in Rule 68 was “intended to refer to all costs properly awardable under the relevant substantive statute or other authority.... Thus, absent congressional expressions to the contrary, where the underlying statute defines ‘costs’ to include attorney’s fees, we are satisfied such fees are to be included as costs for purposes of Rule 68.”
How later courts described this case
- concluding that the term “costs” in Rule 68 was “intended to refer to all costs properly awardable under the relevant substantive statute or other authority.... Thus, absent congressional expressions to the contrary, where the underlying statute defines ‘costs’ to include attorney’s fees, we are satisfied such fees are to be included as costs for purposes of Rule 68.”
- holding that plaintiffs were not entitled to $139,692 in post-offer legal fees where they recovered $8,000 less than defendant’s Rule 68 offer and noting that this result was “consistent with the policies and objectives of § 1988 ... [to] encourage[ ] plaintiffs to bring meritorious civil rights suits[ ]”
- holding that the term “costs” as used in Rule 68 includes attorney's fees 10As Plaintiff concedes, counsel “would not have been entitled to recovery of attorney fees for work thereafter” if the City had filed under Rule 68 (Doc. 65 at 5-6 n. 1, PageID 640-641). awardable under 42 U.S.C. § 1988
- stating that “if the offer 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 [68] to include in its judgment an additional amount which in its discretion it determines to be sufficient to cover the costs”
Written by the judges who cited it.
Later courts went against this
Limited by Dalal v. Alliant Techsystems, Inc., 927 F. Supp. 1374 (1996)
473 U.S. 1, 10, 105 S.Ct. 3012, 3017, 87 L.Ed.2d 1 (1985) specifically limited its holding to cases where the underlying statute defines “costs” to include attorney fees.
The opinion
Justice Powell,
concurring.
In Delta Airlines, Inc. v. August, 450 U. S. 346 (1981), the offer under Rule 68 stated that it was “in the amount of $150, which shall include attorney’s fees, together with costs accrued to date.” Id., at 365 . In a brief concurring opinion, I expressed the view that this offer did not comport with the Rule’s requirements. It seemed to me that an offer of judgment should consist of two identified components: (i) the substantive relief proposed, and (ii) costs, including a reasonable attorney’s fee. The amount of the fee ultimately should be within the discretion of the court if the offer is accepted. In questioning the form of the offer in Delta, I was influenced in part by the fact that it was a Title VII case. I concluded that the “‘costs’ component of a Rule 68 offer of judgment in a Title VII case must include reasonable attorney’s fees accrued to the date of the offer.” Id., at 363 . My view, however, as to the specificity of the “substantive relief” component of the offer did not depend solely on the fact that Delta was a Title VII case.
No other Justice joined my Delta concurrence. The Court’s decision was upon a different ground. Although I think it the better practice for the offer of judgment expressly to identify the components, it is important to have a Court for a clear interpretation of Rule 68. I noted in Delta that “parties to litigation and the public as a whole have an interest — often an overriding one — in settlement rather than exhaustion of protracted court proceedings.” Ibid. The purpose of Rule 68 is to “facilitate] the early resolution of marginal suits in which the defendant perceives the claim to *13 be without merit, and the plaintiff recognizes its speculative nature.” Ibid. See also id., at 363, n. 1 . We have now agreed as to what specifically is required by Rule 68.
Accordingly, I join the opinion of the Court.