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 Rehnquist,
concurring.
In Delta Airlines, Inc. v. August, 450 U. S. 346 (1981), I expressed in dissent the view that the term “costs” in Rule 68 did not include attorney’s fees. Further examination of the question has convinced me that this view was wrong, and I therefore join the opinion of The Chief Justice. Cf. McGrath v. Kristensen, 340 U. S. 162, 176 (1950) (Jackson, J. concurring).