Petition for Writ of Certiorari — Marcoccio v. Crossman

r

86 -145 5 [F Court, U.S.

No. 86- mt

FiLED#

MAR 6 1987

JOSEPH F. SPANIOL, JR,

CLERK

ju the

Supreme Court of the United States

OcroBer TERM, 1986

MICHAEL MARCOCCIO, et al.,

PETITIONERS,

v.

DONNA CROSSMAN, et al.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR CERTIORARI

EpWarpD C. CLIFTON,

City Solicitor and Counsel

of Record for Petitioners

MartTINn W. AISENBERG,

Assistant City Solicitor

City of Providence

Law Department

60 Eddy Street

Providence, Rhode Island 02903

(401) 421-7740, Ext. 333

JosePH F. PENza, JR.

OLENN & PENZA

1246 Chalkstone Avenue

Providence, Rhode Island 02908

(401) 351-5200

Blanchard Press, Inc., Boston, Mass. — Law Printers [617] 426-6690

QUESTION PRESENTED

This is a civil rights case. Petitioners,' defendants below,

made an offer of judgment in the amount of $26,000 pursuant

to Rule 68 of the Federal Rules of Civil Procedure. Respond-

ents? rejected the offer and subsequently obtained a verdict for

$5,010. Petitioners moved under Rule 68 for an award of their

post-offer costs, including attorney’s fees. The district court,

relying upon Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012

(1985), held that petitioners were entitled to their post-offer

attorney's fees as part of their Rule 68 costs because the

underlying substantive law, 42 U.S.C. §§ 1983 and 1988,

includes attorney’s fees among the costs recoverable in the

action. The court of appeals disagreed and reversed the fee

award.

The question presented, then, is as follows: When a civil

rights plaintiff rejects a Rule 68 offer and subsequently obtains

a judgment less favorable than the offer, thus entitling the

defendant to recover his post-offer “costs” from the plaintiff.

do the defendant’s recoverable “costs” under Rule 68 include

his post-offer attorney’s fees?

' Michael Marcoccio, Robert McDonald, Timothy O’Brien, Leonard

Wahl and Dennis Lambert. Petitioners are all officers in the Providence

Police Department.

2 Donna and Darryl Crossman, suing on behalf of themselves and their

two minor children, Krista and Ian.

Ill

TABLE OF CONTENTS

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Reasons Why the Writ Should Be Granted............. 6

I. The Decision of the Court of Appeals Conflicts

With This Court’s Decision in Marekv.Chesny. 6

II. The Question Presented Is an Important Ques-

tion of Federai Law Which Has Not Been, But

Should Be, Settled by This Court............ g

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Opinion —United States Court of Appeals for the

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Opinion —United States District Court for the

District of Rhode Island............... 22

Judgment — United States Circuit Court of Appeals for

IS os noes nase 6% acu Seas 31

IV

TABLE OF AUTHORITIES

Cases

Adams v. Wolff, 110 F.R.D. 291 (D. Nev. 1986)........ 10

Chesny v. Marek, 547 F. Supp. 542 (N.D. Ill. 1982).... 9n

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

PP ee ree oe eer ee eee ry Cae 6

Crossman v. Marcoccio, 108 F.R.D. 433 (D.R.1. 1985). .

Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981)... 6,10

Liberty Mutual Insurance Co. v. Equal Employment

Opportunity Commission, 691 F.2d 438 (9th Cir.

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ees I le ons cn Bou ch ence Medias ane l

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In the

Supreme Court of the United States

Ocrosper TERM, 1986

No. 86-

MICHAEL MARCOCCIO, et al.,

PETITIONERS,

v.

DONNA CROSSMAN, et al.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR CERTIORARI

Opinions Below

The opinions below are both reported under the caption

Crossman v. Marcoccio. The opinion of the United States

District Court for the Distiict of Rhode Island is reported at

108 F.R.D. 433 (December 23, 1985); the opinion of the

United States Court of Appeals for the First Circuit is reported

at 806 F.2d 329 (December 9, 1986).

Jurisdiction

Petitioners invoke the jurisdiction of this Court pursuant to

28 U.S.C. § 1254(1). The judgment of the court of appeals was

rendered on December 9, 1986. ‘

2

Statutes and Rules Involved

42 U.S.C. § 1983: Every person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for redress. For

the purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered to

be a statute of the District of Columbia.

42 U.S.C. § 1988, in pertinent part: In any action or pro-

ceeding to enforce a provision of sections 1977, 1978, 1979,

1980, and 1981 of the Revised Statutes [42 U.S.C.

§§ 1981-1983, 1985, 1986], title IX of Public Law 92-318 [20

U.S.C. §§ 1681 et seq.], or title VI of the Civil Rights Act of

1964 [42 U.S.C. §§ 2000d et seq.], the court, in its discretion,

may allow the prevailing party, other than the United States,

a reasonable attorney's fee as part of the costs.

Rule 68 of the Federal Rules of Civil Procedure, in pertinent

part: At any time more than 10 days before the trial begins, a

party defending against a claim may serve upon the adverse

party an offer to allow judgment to be taken against him for

the money or property or to the effect specified in his offer,

with costs then accrued. If within 10 days after the service of

the offer the adverse party serves written notice that the offer

is accepted, either party may then file the offer and notice of

acceptance together with proof of service thereof and

thereupon the clerk shall enter judgment. An offer not

accepted shall be deemed withdrawn and evidence thereof is

not admissible except in a proceeding to determine costs. If the

judgment finally obtained by the offeree is not more favorable

than the offer, the offeree must pay the costs incurred after the

making of the offer.

3

Statement of the Case

Respondents brought this action under 42 U.S.C. § 1983

against five police officers (petitioners here), the Providence

Police Department and the chief of police.* The complaint

alleged that petitioners had entered respondents’ home without

probable cause and assaulted Donna and Darryl Crossman,

falsely arrested and imprisoned them, and maliciously pro-

secuted them, all in violation of their constitutional rights.

Simultaneously with their answer to the complaint, the named

defendants filed a Rule 68 offer of judgment in the amount of

$26,000, inclusive of all costs, interest and attorney's fees

accrued to date.‘ Respondents rejected the offer.

The claims against the chief of police and the police depart-

ment were dismissed by stipulation, and respondents’ case

against the individual police officers proceeded to trial. The jury

returned a verdict in favor of the respondents against all five

petitioners in the total amount of $5,010—nearly $21,000 less

than the offer of judgment. Rule 68 provides that “[i}f the judg-

ment finally obtained by the offeree is not more favorable than

the offer, the offeree must pay the costs incurred after the mak-

ing of the offer.” Accordingly, petitioners filed a bill of costs,

which included a request for $880.50 in post-offer taxable costs

and $10,902.50 in post-offer attorney's fees.

Respondents opposed petitioners’ bill of costs on two grounds.

First, they argued that Rule 68 did not entitle petitioners to

recover their post-offer costs, but merely operated to deny

respondents recovery of their own post-offer costs—to which, as

the prevailing parties, respondents would otherwise have been

entitled under Rule 54(d).5 Second, respondents argued that

attorney's fees are not “costs” within the meaning of Rule 68.

? Federal jurisdiction in the district court was based upon 28 U.S.C. §§ 1331

and 1343.

* It is undisputed that this was a valid offer under Rule 68; respondents raised

no issue in the district court concerning the validity of the offer. 108 F.R.D. at

434 n.1, App. at 24 n.1.

5 As the court of appeals subsequently put it, the question thus raised by

respondents was “whether Rule 68 reverses the operation of Rule 54(d), or

merely cancels it.” 806 F.2d at 331, App. at 15.

4

On the first point, the district court found that “the over-

whelming weight of authority supports the imposition of a

defendant's costs on a plaintiff who rejects an Offer of Judg-

ment and then recovers a less favorable judgment at trial,”

and accordingly held that petitioners were entitled to recover

their post-offer costs. 108 F.R.D. at 435, App. at 26.

On the second point, the district court turned for guidance

to Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012 (1985).* In

Marek this Court squarely held that in an action brought, like

this one, pursuant to 42 U.S.C. § 1983, the term “costs” in

Rule 68 includes attorney's fees awardable under 42 U.S.C.

§ 1988. The plaintiff in Marek had recovered $60,000 on his

civil rights claim; however, he had previously rejected a Rule

68 offer of $100,000. He then moved for an award of

attorney's fees—to which, as a prevailing plaintiff, he would

ordinarily have been entitled under § 1988. The plaintiff

argued that his post-offer “costs,” which he could not recover

because of Rule 68, did not include his post-offer attorney's

fees. This Court did not agree. After reviewing the many

federal statutes that provide for an award of attorney's fees to

the prevailing party “as part of the costs,” and after noting the

lack of any definition of the term “costs” in either Rule 68 itself

or the advisory committee’s notes, the Court concluded as

follows (105 S.Ct. at 3017):

In this setting, given the importance of “costs” to the

Rule, it is very unlikely that this omission was mere over-

sight; on the contrary, the most reasonable inference is

that the term “costs” in Rule 68 was intended to refer to

all costs properly awardable under the relevant substan-

tive statute or other authority. In other words, all costs

properly awardable in an action are to be considered

* Petitioners’ counsel does not have access to a copy of volume 473 of the

United States Reports advance sheets. Further citations to Marek in this peti-

tion will be to the decision as published in West's Supreme Court Reporter,

105 S.Ct. 3012.

‘

5

within the scope of Rule 68 “costs.” Ths, absent Con-

gressional expressions to the contrary, were the underly-

ing statute defines “costs” to include attorney's fees, we

are satisfied such costs are to be included as costs for pur-

poses of Rule 68. [Citations omitted].

Here, [plaintiff] sued under 42 U.S.C. § 1983. Pur-

suant to the Civil Rights Attorney's Fees Award Act of

1976, 42 U.S.C. § 1988, a prevailing party in a § 1983

action may be awarded attorney's fees “as part of the

costs.” Since Congress expressly included attorney's fees

as “costs” available to a plaintiff in a § 1983 suit, such fees

are subject to the cost-shifting provision of Rule 68.

{Emphasis added. ]

The district court below correctly held that this case is con-

trolled by Marek. 108 F.R.D. at 435-37, App. at 27-29. Marek

holds that, in a § 1983 case, Kule 68 “costs” include attorney's

fees. Respondents are liable under Rule 68 for petitioners’

post-offer costs; therefore, they are liable for petitioners’ post-

offer attorney's fees, which are included “as part of the costs.”

The court of appeals agreed that Rule 68 requires

respondents to pay petitioners’ post-offer costs,’ but it rejected

the inclusion of petitioners’ post-offer attorney's fees as part of

those costs. The court did not rule as it did because it objected

to the logic of petitioners’ position—to the contrary, the court

termed that logic “appealing,” 806 F.2d at 333, App. at 19.

Rather, the court's decision was based on its view that peti-

tioners’ argument “distort[s] the law governing the relation-

ship between Rule 68 and [42 U.S.C. ] section 1988.” Id., App.

at 19. In support of this view, the court laid great stress on two

words in the Marek holding: “ ‘[T}he term “costs” in Rule 68

was intended to refer to all costs properly awardable under the

relevant substantive statute or other authority.’ ” Jd., App. at

19, quoting Marek v. Chesny, 105 S.Ct. at 3017 (emphasis

added by the court of appeals).

7 806 F.2d at 331-33, App. at 14-18.

6 \

The court noted that petitioners’ attorney’s fees were not

“properly awardable” under 42 U.S.C. § 1988 for two

reasons. First, § 1988 awards fees only to a “prevailing party.”

806 F.2d at 334, App. at 20. Second, under Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), a civil rights

defendant may not be awarded attorney’s fees under § 1988

unless the trial court determines that the plaintiff's action was

“frivolous, unreasonable, or without foundation”; inasmuch

as respondents obtained a verdict in their favor, their case can-

not be considered frivolous. “It follows from this,” the court of

appeals concluded, “that [petitioners’] attorney’s fees were not

‘properly awardable’ costs as defined by section 1988 and,

therefore, were not part of the costs shifted to [respondents] by

the operation of Rule 68.” 806 F.2d at 334, App. at 20.

Reasons Why the Writ Should Be Granted

I. THE DECISION OF THE CouRT OF APPEALS CONFLICTS WITH

Tuts Court’s Decision in Marek v. Chesny.

This court held in Marek that “[t]he plain language of Rule

68 and § 1988 subjects [§ 1988 attorney’s fees] to the cost-

shifting provision of Rule 68.” 105 S.Ct. at 3018. The “cost-

shifting provision of Rule 68” has two parts: first, it denies to a

prevailing plaintiff the recovery of his own post-offer costs;

second, it requires a prevailing plaintiff to pay the defendant’s

post-offer costs. It defies logic and common sense to hold, as

the court of appeals did, that § 1988 attorney's fees are

included in the first half of Rule 68’s “cost-shifting provision”

but not in the second half, which the court acknowledged to

be more important to the effectiveness of the rule. See 806

F.2d at 332, App. at 16-17.

“Rule 68 makes available to defendants a mechan‘sm to

encourage plaintiffs to settle burdensome lawsuits.” Delta Air

Lines, Inc. v. August, 450 U.S. 346, 363 (1981) (Powell, J.,

concurring in the result). Marek holds that this “mechanism”

7

includes the shifting of attorney’s fees, in addition to ordinary

taxable costs, when the underlying statute inciudes attorney’s

fees among the recoverable costs. The district court in this case

simply applied that holding as its logic clearly compels.

Indeed, Justice Brennan dissented from the holding of Marek

because, among other reasons, he believed that it would

require “prevailing plaintiffs falling within Rule 68. . .to bear

the defendant’s post-offer attorney’s fees.” 105 S.Ct. at 3024

(Brennan, J., dissenting).

The court of appeals erred in refusing to follow the logic of

Marek and relying instead upon its view of the relationship

between Rule 68 and § 1988. In Marek, this Court found in

the policies underlying § 1988 no expression of congressional

intent to exempt the statute from the operation of the Rule.

105 S.Ct. at 3018. Thus, the court of appeals’ rationale is flatly

inconsistent with this Court’s view of the relationship between

Rule 68 and § 1988.

The only relevance of § 1988 in this case is that it makes

attorney’s fees part of the Rule 68 costs. The standards for fee

awards under § 1988 are not imported into Rule 68, which,

when it applies, is mandatory.® In Marek, this Court did not

apply § 1988 standards to see if it might be “reasonable” to

award the prevailing plaintiff a portion of his post-offer

attorney’s fees; rather, it applied the mandatory language of

Rule 68, under which the plaintiff is not entitled to any post-

offer fees. Marek v. Chesny, 105 S.Ct. at 3027-28 (Brennan,

J., dissenting). The plaintiff's entitlement to fees in Marek was

governed by Rule 68, not by § 1988; the same is true of peti-

tioners’ entitlement to fees in this case.

® On the mandatory nature of Rule 68, see, e.g., Liberty Mutual Insurance

Co. v. Equal Employment Opportunity Comm'n, 691 F.2d 438, 442 (9th

Cir. 1982).

8

Furthermore, contrary to the apparent belief of the court of

appeals,® there is no conflict between Rule 68, as construed

and applied by the district court in this case, and § 1988.

As this Court said in Marek:

Merely subjecting civil rights plaintiffs to the settlement

provision of Rule 68 does not curtail their access to the

courts, or significantly deter them from bringing suit.

Application of Rule 68 will serve as a disincentive for the

plaintiff's attorney to continue litigation after the defen-

dant makes a settlement offer. There is no evidence,

however, that Congress, in considering § 1988, had any

thought that civil rights claims were to be any different

from other civil claims insofar as settlement is con-

cerned....

* oa *

Section 1988 encourages plaintiffs to bring meritorious

civil rights suits; Rule 68 simply encourages settlements.

There is nothing incompatible in these two objectives.

105 S.Ct. at 3017-18. In other words, there is no conflict be-

tween encouraging a civil rights plaintiff to bring suit initially

by offering him attorney’s fees if he wins, and encouraging

both parties to settle after a civil rights suit is filed by shifting

the defendant’s attorney’s fees to the plaintiff if the plaintiff

fails to accept a reasonable settlement offer.

In short, petitioners submit that certiorari should be granted

because the decision below is inconsistent with Marek and the

court of appeals’ rationale fails to justify that inconsistency.

*“These two words — ‘properly awardable’ — are so essential to the

holding of Marek that, even if the Supreme court had not expressly included

them, we would have implied their existence to prevent Marek’s chilling

effect on the inititation of civil rights actions from attaining glacial

magnitude.” 806 F.2d at 333, App. at 19-20 (emphasis added).

9

Il. THE QuesTION PRESENTED Is AN IMPORTANT QUESTION OF

. FeperaAL Law Wuicu Has Nor BEEN, But SHOULD Be,

SETTLED BY THIS Court.

The precise question decided by the court of appeals in this

case was not before this Court in Marek.'® Now that it is

squarely presented, petitioners respectfully submit that this

Court should take the opportunity to decide it. As the court of

appeals candidly acknowledged, Rule 68 is “among the most

enigmatic of the Federal Rules of Civil Procedure because it

offers imprecise guidance regarding which post-offer costs

become the responsibility of the plaintiff.” 806 F.2d at 331,

App. at 14. The question presented in this case results directly

from the “imprecise guidance” provided by Rule 68, as well as

from the unclear nature of the relationship between Rule 68

and § 1988. It is, therefore, a question that requires definitive

resolution by this Court.

The application of Rule 68 cost-shifting to § 1988 attorney’s

fees is a matter of sufficient importance to have already

engaged this Court’s attention in Marek. The importance of

the specific question presented in this case is demonstrated by

the amicus curiae briefs that were filed in the court of appeals:

a joint brief by the American Civil Liberties Union and its

Rhode Island affiliate urging reversal of the district court’s

decision, and a joint brief by the International Association of

Police Chiefs, the National District Attorneys Association and

others urging affirmance. Moreover, it is a question that will

recur in the lower federal courts, with a high probability that

conflicting decisions will result, until this Court puts it to rest.

'© The district court in Marek held (1) that Rule 68 prevented the prevail-

ing plaintiff from recovering his post-offer attorney's fees, and (2) that Rule

68 did not entitle the defendants to recover their own post-offer costs,

including attorney's fees. Chesny v. Marek, 547 F. Supp. 542, 547-48 (N.D.

Ill. 1982). When the plaintiff appealed the former ruling to the court of

appeals, the defendants did not cross-appeal the latter ruling. Consequently,

when the case came before this Court on certiorari, the latter ruling was not

presented for review. Marek v. Chesny, 105 S.Ct. at 3014 n.1.

10

Indeed, this has already occurred: in Adams v. Wolff, 110

F.R.D. 291, 293-94 (D. Nev. 1986), the court reached the

opposite conclusion from the district court in this case. The

district court’s well-reasoned opinion in the instant case,

though rejected by the court of appeals and therefore of no

precedential value in the First Circuit, will undoubtedly

—given the substantial sums of money at stake in fee-shifting

cases—lead defendants to urge the same argument on district

courts in other circuits.

Rule 68 serves an important policy: the settlement of litiga-

tion. “[P]arties to litigation and the public as a whole have an

interest—often an overriding one—in settlement rather than

exhaustion of protracted court proceedings.” Delta Airlines,

Inc. v. August, 450 U.S. at 363 (Powell, J., concurring in the

result). That policy is impaired by the decision of the court of

appeals and would be advanced by this Court’s adoption of the

district court’s view. As the Court recognized in Marek, 105

S.Ct. at 318, encouraging civil rights defendants to make good

settlement offers will enure to the benefit of civil rights

plaintiffs:

Some plaintiffs will receive compensation in settlement

where, on trial, they might not have recoyered, or would

have recovered less than what was offered. And, even for

those who would prevail at trial, settlement will provide

them with compensation at an earlier date without the

burdens, stress, and time of litigation. In short, settle-

ments rather than litigation will serve the interests of

plaintiffs as well as defendants.

In summary, petitioners submit that certiorari should be

granted because of the importance of the question presented

and the likelihood that it will recur in the lower courts, with

conflicting results, if this Court does not provide a definitive

answer.

11

Conclusion

For the foregoing reasons, petitioners respectfully request

that their petition for certiorari be granted.

By their attorneys,

Epwarp C. C.LiFron,

City Solicitor and Counsel

of Record for Petitioners

MartTIn W. AISENBERG,

Assistant City Solicitor

City of Providence

Law Department

60 Eddy Street

Providence, Rhode Island 02903

(401) 421-7740, Ext. 333

JosePH F. PENza, Jr.

OLENN & PENZA

1246 Chalkstone Avenue

Providence, Rhode Island 02908

(401) 351-5200

12

APPENDIX

United States Court of Appeals

For the First Circuit

No. 86-1058.

Donna CROSSMAN, Er AL.,

PLAINTIFFS, APPELLANTS,

Dv.

MicHaEL MARCOCCIO, Et At.,

DEFENDANTS, APPELLEES.

HEarpD Oct. 8, 1986.

Decipep Dec. 9, 1986.

Roy D. Simon, Jr., Washington University, St. Louis, Mo., with whom

Milton Stanzler, Jonathan L. Stanzler and Abedon, Michaelson, Stanzler &

Biener, Providence, R.I., were on brief for plaintiffs, appellants.

Lynette Labinger, Roney & Labinger, Providence, R.1., E. Richard Lar-

son and Burt Neuberne, American Civil Liberties Union Foundation, New

York City, on brief for American Civil Liberties Union and The Rhode

Island Affiliate of the ACLU, amici curiae.

Joseph F. Penza, Jr., with whom Olenn & Penza and Martin W.

Aisenberg, Asst. City Sol., Providence, R.I., were on brief for defendants,

appellees.

David Crump, Legal Foundation of America, Houston, Tex., Daniel B.

Hales, Peterson, Ross, Schloerb & Seidel, Chicago, Ill., Willian C. Summers,

International Ass'n of Chiefs of Police, Inc., Gaithersburg, Md., Jack E.

Yelverton, National Dist. Attys. Ass'n, Inc., Fred E. Inbau, Northwestern

University School of Law, Wayne W. Schmidt, Americans for Effective Law

Enforcement, Inc., and James P. Manak, General Counsel, Americans for

Effective Law Enforcement, Inc., and Executive Editor, National Dist.

Attys. Ass'n, Inc., Chicago, IIl., on brief for Americans for Effective Law

Enforcement, Inc., the International Ass'n of Chiefs of Police, Inc., The

Legal Foundation of America and The National Dist. Attys. Ass'n, Inc.,

amici curiae.

13

Before

Corrin, BREYER and TorRRUELLA,

Circuit Judges.

CorrFin, Circuit Judge.

In this case we confront the novel question of whether

prevailing civil rights plaintiffs must pay their opponents’ costs

and attorney’s fees after refusing to accept a pretrial offer of

judgment that exceeds the amount they ultimately recover at

trial. The court below, relying upon Fed. R. Civ. P. 68, and

Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1

(1985), awarded defendants their taxable costs plus almost

$11,000 in post-offer attorney’s fees because plaintiffs

ultimately recovered an amount less than defendants’ offer of

judgment. Crossman v. Marcoccio, 108 F.R.D. 433 (D.R.1.

1985). We affirm the district court’s award of taxable costs,

but reverse that portion of its order pertaining to post-offer

attorney’s fees.

I. Factual Setting.

The facts of this case are not in dispute. On August 7, 1984,

appellants Donna and Daryl Crossman initiated a civil rights

action pursuant to 42 U.S.C. §1983 on behalf of themselves

and their two minor children against five Providence police

officers, the chief of police, and the Providence Police Depart-

ment.' On August 29, 1984, the named defendants answered

the complaint and, in accordance with Fed. R. Civ. P. 68,

simultaneously filed with the court an offer of judgment in the

amount of $26,000, inclusive of all costs, interest, and attor-

ney’s fees accrued to that date. The Crossmans opted to refuse

the settlement offer and proceed to trial.

Although the Crossmans later entered a stipulation dismiss-

ing the claims against the department and the chief of police,

the case against the five individual officers, appellees here,

' The complaint essentially alleged three categories of violations: false

arrest, false imprisonment, and malicious prosecution.

14

was tried before a jury in district court. Following the trial,

the court entered judgment in favor of the Crossmans and

against all five officers in the total amount of $5,010, nearly

$21,000 less than defendants’ offer of judgment. Before judg-

ment was entered, therefore, the officers filed a bill of costs

pursuant to 28 U.S.C. §1920 and Rule 68. This bill included a

request for $880.50 of post-offer taxable costs and $10,902.50

of post-offer attorney's fees. The district court, reasoning that

defendants’ post-offer attorney’s fees should be characterized

as “costs” under Rule 68, awarded defendants the full amounts

set forth in their bill of costs. Crossman, 108 F.R.D. at 437.

The decision below raises two distinct issues on appeal.

First, does Rule 68 compel appellants to pay appellees’ post-

offer costs? Second, if the first question is answered affir-

matively, are appellees’ post-offer attorney’s fees part of the

Rule 68 “costs” that become appellants’ responsibility? We

address each issue in turn.

Il. Cost Shifting.

Rule 68, entitled “Offer of Judgment,” provides in pertinent

part:

At any time more than 10 days before the trial begins, a

party defending a claim may serve upon the adverse

party an offer to allow judgment to be taken against him

for the money or property or to the effect specified in his

offer, with costs then accrued... . If the judgment finally

obtained by the offeree is not more favorable than the

offer, the offeree must pay the costs incurred after the

making of the offer... .

Fed. R. Civ. P. 68 (emphasis supplied). This rule, designed to

encourage the settlement of private disputes, has long been

among the most enigmatic of the Federal Rules of Civil Pro-

cedure because it offers imprecise guidance regarding which

post-offer costs become the responsibility of the plaintiff.

Opinions differ sharply on the issue of whether Rule 68 com-

pels plaintiffs to pay defendant’s post-offer costs or simply

15

operates to deny prevailing plaintiffs recovery of their own

post-offer costs. Because Fed. R. Civ. P.54(d) generally per-

mits prevailing parties to recover their costs,* the question

becomes whether Rule 68 reverses the operation of Rule 54(d),

or merely cancels it. See Simon, The Riddle of Rule 68, 54

Geo. Wash. L. Rev. 1, 6 n.18 (1985). This is an issue of first

impression in this circuit. See Garrity v. Sununu, 752 F.2d

727, 731 (Ist Cir. 1984).

Appellants, relying solely on a footnote in Justice Stevens’

opinion for the Court in Delta Air Lines, Inc. v. August, 450

U.S. 346, 359 n.24, 101 S.Ct. 1146, 1153 n.24, 67 L.Ed.2d 287

(1981), contend that Rule 68 cancels the operation of Rule

54(d) and relieves the defendant from paying plaintiff's post-

offer costs. To support this position, however, Justice Stevens

offers only the ambiguous commentary contained in the

treatise by Professors Wright and Miller, Moore’s Federal

Practice, and a 1939 Virginia Law Review article. See Delta

Air Lines, 450 U.S. at 359, 101 S.Ct. at 1153 n.24. Even a cur-

sory glance at these sources demonstrates that they are not

dispositive of the issue. Indeed, others have interpreted these

sources in an entirely different manner. See, e.g., Marek, 105

S.Ct. at 3023 & n.14 (Brennan, J., dissenting); Delta Air

Lines, 450 U.S. at 374 & n.3, 101 S.Ct. at 1161 n.3 (Rehn-

quist, J., dissenting).

Our own analysis of the language and purpose of Rule 68,

which parallels the analysis performed by most courts and

commentators, persuades us that appellants’ position lacks

merit. First, the language of Rule 68 provides that “the offeree

must pay the costs incurred after the making of an offer.” Fed.

R. Civ. P. 68 (emphasis supplied). There is no language in the

Rule limiting the scope of the term “costs” to “the offeree’s

own costs.” Furthermore, the Rule stresses that the offeree

2 Rule 54(d) provides that “[e]xcept when express provision therefor is

made either in a statute of the United States or in these rules, costs shall be

allowed as of course to the prevailing party unless the court otherwise

directs;....”

16

must pay the costs incurred, thus suggesting an affirmative

action. The draftees, had they meant to adopt the position

urged by appellants, could easily have employed more passive

language providing that the offeree “shall bear its own costs”

or “shall not be entitled to recover costs under Rule 54(d),” but

apparently they chose otherwise. As Justice Brennan has

explained, appellants’ interpretation of Rule 68 is not sup-

ported by the “plain language” of the Rule. Marek, 105 S.Ct.

at 3023 (Brennan, J., dissenting) (emphasis in original).

The historical roots of Rule 68 also buttress our conclusion

that appellants’ interpretation of Rule 68 is incorrect. The

original language of Rule 68 provided that a plaintiff who

failed to obtain a judgment more favorable than the offer

“shall not recover costs in the district court from the time of

the offer but shall pay costs from that time.” See Fed. R. Civ.

P. 68, reprinted in 1 F.R.D. LXIII, CXXXIV (1941) (emphasis

supplied). When the rule took its present form in 1946, the

drafters did not indicate an intent to change the cost-shifting

mechanism of the original rule. Instead, as one commentator

has perceptively noted, “the change was made for other

reasons.” Simon, The Riddle of Rule 68, 54 Geo. Wash. L.

Rev. 1, 6 n.18 (1985) (citing advisory committee note accom-

panying the 1946 amendments to Rule 68). There is nothing in

the genesis of Rule 68, therefore, to indicate that the language

of the current rule should be interpreted in the limited fashion

favored by the appellants.

Furthermore, the purpose animating Rule 68 also counsels

in favor of adopting the broader interpretation of the rule

urged by appellees. It is undisputed that the underlying pur-

pose of Rule 68 is to encourage settlement of disputes and

avoid protracted litigation. Marek, 105 S.Ct. at 3015; Delta

Air Lines, 450 U.S. at 352, 101 S.Ct. at 1150. As the Supreme

Court recognized in Marek, moreover, the rule is intended to

prompt both parties “to evaluate the risks and costs of litiga-

tion, and to balance them against the likelihood of success

17

upon trial on the merits.” Marek, 105 S.Ct. at 3015. If we

were to interpret Rule 68 merely to deny plaintiffs their own

post-offer costs, then there would be significantly less incen-

tive for both sides to undertake a prudent assessment of the

“risks and costs” of litigation. Reading Rule 68 to require the

payment of defendants’ post-offer costs by miscalculating

plaintiffs enhances both defendants’ incentive to extend Rule

68 offers of judgment and plaintif*~ incentive to accept such

offers. As explained by the court in Staffend v. Lake Central

Airlines, Inc., 47 F.R.D. 218 (N.D. Ohio 1969), “[t}he provi-

sion in the rule which imposes costs upon a party who refuses

an Offer of Judgment and who later recovers no more than the

offer... puts teeth in the rule and makes it effective by en-

couraging acceptance.” Jd. at 219-20.

Finally, we note that, aside from Justice Stevens’ footnote in

Delta Air Lines and the district court opinion in Marek, 547

F.Supp. 542, 547-48 (N.D. Ill. 1982), every court addressing

the issue thus far has held that Rule 68 obligates plaintiffs to

pay defendants’ post-offer costs after rejecting an offer more

favorable than the judgment eventually obtained. In Gay v.

Waiters’ and Dairy Lunchmen’s Union, Local 30, 86 F.R.D.

500 (N.D. Cal. 1980), for instance, the court held that a plain-

tiff who rejects an offer of judgment “assum[es] the risk that

the outcome of the case will be less favorable than the offer, on

pain of having to pay the costs subsequently incurred by the

offeror.” Id. at 502. Likewise in Dual v. Cleland, 79 F.R.D.

696 (D.D.C. 1978), the court proclaimed that, if the offer

exceeds the judgment eventually obtained, “the defendant is

entitled to charge the plaintiff with costs incurred after the

offer of judgment.” Jd. at 697. In addition to the substantial

list of court decisions adopting this view,’ several commen-

® Liberty Mutual Insurance Co. v. EEOC, 691 F.2d 438, 442 (9th Cir.

1977); Quintel Corp., N.V. v. Citibank, N.A., 606 F. Supp. 915 (S.D.N.Y.

1985); Waters v. Heublein, Inc., 485 F. Supp. 110, 113 (N.D.Cal. 1979);

Mr. Hanger, Inc. v. Cut Rate Plastic Hangers, Inc., 63 F.R.D. 607, 611

(E.D.N.Y. 1974).

18

tators have also expressed their belief that Rule 68 shifts post-

offer costs to plaintiffs. See, e.g., Branham, Offers of Judg-

ment and Rule 68: A Response to the Chief Justice, 18 J. Mar-

shall L. Rev. 341, 343, 357 (1985): Miller, An Economic

Analysis of Rule 68, 15 J. Legal Stud. 93, 93 (1986); Simon,

The Riddle of Rule 68, 54 Geo. Wash. L. Rev. 1, 6 n.18

(1985); Note, The Impact of Propesed Rule 68 on Civil Rights

Litigation, 84 Colum. L. Rev. 719, 719-20 (1984); Note, The

Conflict Between Rule a68 nd the Civil Rights Attorney's Fees

Statute: Reinterpreting the Rules Enabling Act, 98 Harv. L.

Rev. 828, 828 (1985). |

Accordingly, in light of the language, purpose, and

authoritative interpretations of Rule 68, we hold that a plain-

tiff who refuses an offer of judgment, and later fails to obtain a

more favorable judgment, must pay the defendant's post-offer

costs. The district court, therefore, correctly ruled that the

Crossmans are responsible for all costs incurred by appellees

after August 29, 1984. We now turn to the important question

of whether appellees’ post-offer attorney's fees are properly

categorized as “costs” under Rule 68.

Ill. Attorney's Fees.

In Marek v. Chesny, 105 S.Ct. at 3012, the Supreme Court

held that a prevailing civil rights plaintiff, who recovers an

amount less than the defendant's Rule 68 offer of judgment,

cannot recover his post-offer attorney's fees pursuant to 42

U.S.C. §1988. Essential to the Court's holding was its deter-

mination that the term “costs” in Rule 68 encompasses “all

costs properly awardable under the relevant substantive

statute or other authority.” Marek, 105 S.Ct. at 3017. The

Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.

§ 1988, permits a prevailing plaintiff to recover “a reasonable

attorney's fee as part of the costs,” so the Court ruled that

“such fees are subject to the cost-shifting provision of Rule 68.”

Marek, 105 S.Ct. at 3017. The Marek Court, however, did not

reach the precise issue before us today because the defendants

19

in that case failed to appeal the portion of the district court's

order denying their request for post-offer attorney's fees. Jd. at

3014 n.1.

Asserting that the instant case is no different from Marek,

appellees have constructed their principal argument on appeal

in the form of a deceptively simple syllogism:

(1) Rule 68 requires appellants to pay appellee's post-

offer costs;

(2) Rule 68 costs, according to Marek, are determined by

looking to section 1988, the underlying statute gov-

erning costs;

(3) Section 1988 permits the recovery of attorney's fees as

part of costs;

(4) Rule 68, therefore, requires appellants to pay appel-

lee’s post-offer attorney’s fees.

Although the logic of this syllogism is appealing,‘ the second

and third steps of appellees’ argument distort the law govern-

ing the relationship between Rule 68 and section 1988 by

ignoring the two crucial words that serve to qualify the

holding of the Marek case. Marek states that “the term ‘costs’

in Rule 68 was intended to refer to all costs properly award-

able under the relevant substantive statute or other authority.”

Marek, 105 S.Ct. at 3017 (emphasis supplied). The Court

stresses the importance of the two emphasized words by

repeating them in the next sentence of the opinion: “In other

words, all costs properly awardable in an action are to be con-

sidered within the scope of Rule 68 ‘costs.’ ” Jd. (emphasis sup-

plied). These two words—“properly awardable”—are so

essential to the holding of Marek that, even if the Supreme

Court had not expressly included them, we would have

implied their existence to prevent Marek’s chilling effect on the

* Indeed, Justice Brennan adopts such reasoning in an attempt to identify

one of the many undesirable consequences flowing from the majority's “plain

meaning” interpretation of Rule 68 and section 1988. See Marek, 105 S.Ct.

at 3023-24 (Brennan, J., dissenting).

20

initiation of civil rights actions from attaining glacial

magnitude. The pertinent inquiry, therefore, is whether

appellees’ attorney’s fees are “properly awardable” under sec-

tion 1988.

In Marek, plaintiff's attorney’s fees were “properly award-

able” as costs under section 1988 because his section 1983

action had been successful. See 42 U.S.C. §1988. Rule 68,

however, prevented plaintiff from recouping the costs he

incurred after his refusal to accept an offer of judgment that

exceeded his ultimate recovery. Because the Marek Court

determined that plaintiff's Rule 68 costs consisted of all costs

“properly awardable” under section 1988, it held that Rule 68

also operated to bar the trial court from awarding plaintiff his

section 1988 attorney’s fees. Marek, 105 S.Ct. at 3018.

Nevertheless, applying the Marek analysis to the case ai bar

does not yield the result desired by appellees. Although

appellants’ attorney’s fees were “properly awardable” costs

under section 1988, appellees’ attorneys fees were not. The

statute awards costs only to a “prevailing party.” Moreover,

the standard set forth by the Supreme Court in Hughes v.

Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163

(1980) (per curiam), and Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648

(1978), provides that a civil rights defendant may not be

awarded attorney’s fees under section 1988 unless the trial

court determines that the plaintiff's action was “frivolous,

unreasonable, or without foundation.” Christiansburg, 434

U.S. at 421, 98 S.Ct. at 700. In the instant case, there is

absolutely no reason to believe that appellant’s case was

frivolous or meritless; indeed, appellants “prevailed” at trial.

It follows from this that appellees’ attorney’s fees were not

“properly awardable” costs as defined by section 1988 and,

therefore, were not part of the costs shifted to plaintiff by the

operation of Rule 68. To hold otherwise would fly in the face

of the Supreme Court’s carefully crafted decision in Marek,

21

a case that appellees agree must control our decision today.

Accordingly, we conclude that the court erred by ordering the

Crossmans to pay appellees’ post-offer attorney’s fees.

IV. Conclusion

For the reasons elaborated above, we first hold that Rule 68

compels prevailing plaintiffs to pay defendants’ post-offer

costs whenever the amount ultimately recovered at trial is less

than the amount of a previously refused offer of judgment.

Second, because courts may not properly award attorney’s fees

to unsuccessful civil rights defendants under section 1988, we

hold that Rule 68 can never require prevailing civil rights

plaintiffs to pay defendants’ post-offer attorney's fees. Apply-

ing these dual holdings to the facts of the instant case, we

affirm the decision below only to the extent that it requires the

Crossmans to pay appellees’ post-offer taxable costs in the

amount of $880.50. We reverse that portion of the district

court’s order awarding appellees $10,902.50 in post-offer

attorney’s fees.

Affirmed in part, reversed in part.

No costs.

22

UNITED STATES District Court

ID. RHopE ISLAND

Civ. A. No. 84-0296.

Donna CROSSMAN, et al.

v.

MicHAEL MARCOCCIO, et al.

Milton Stanzler, Providence, R.I., for plaintiffs.

Joseph F. Penza, Jr., Providence, R.1., for defendants.

OPINION

Dec. 20, 1985.

As AMENDED Dec. 23, 1985.

Francis J. Boye, Chief Judge.

Plaintiffs brought this action pursuant to 42 U.S.C. §1983

alleging that five Providence police officers had deprived them

their constitutional rights. The action was tried in this court

and a jury returned a verdict for Plaintiffs against all Defen-

dants. Plaintiffs have asked the court tc assess costs pursuant to

Federal Rule of Civil Procedure 54(d) and 28 U.S.C. §1920.

Invoking Federal Rule of Civil Procedure 68, Defendants seek

to assess Plaintiffs their costs and attorney’s fees incurred after

their Offer of Judgment. For the reasons detailed below, the

Court (1) grants Plaintiffs their pre-Offer-of-Judgment costs,

(2) grants Defendants their post-Offer-of-Judgment costs and

(3) grants Defendants’ post-Offer-of-Judgment attorney’s fees.

Darryl Crossman, his wife Donna, and their two children,

Krista and Ian, filed this action against police officers Michael

Marcoccio, Robert McDonald, Timothy O’Brien, Leonard

Wahl and Dennis Lambert on August 7, 1984. Plaintiffs

alleged that Defendants had entered their home without prob-

able cause on October 16, 1982, had assaulted Donna and

Darryl Crossman, falsely arrested them and imprisoned them,

23

and had maliciously prosecuted them, all in violation of their

constitutional rights. Defendants answered the complaint on

August 29, 1984, denying Plaintiffs allegations and

counterclaiming for damages due to an alleged assault by

Donna and Darryl Crossman on Defendants.

Twenty-two days after the action was begun, on August 29,

1984, Defendants submitted an Offer of Judgment. Defen-

dants offered to have judgment enter against them in the

amount of $26,000, including costs, interest and attorney’s fees

accrued as of that date. Plaintiffs rejected the offer. The action

proceeded to trial. A jury returned a verdict of $5,010 for

Plaintiffs. The jury awarded each of the two adult Plaintiffs

$500 each against each of the five Defendants and each of the

two minor Plaintiffs one dollar each against each of the five

Defendants. The jury found that Plaintiffs Donna and Darryl

Crossman did not assault Defendants.

On October 11, 1985, Defendants submitted a Bill of Costs

totalling $11,783. This total included a requested award of

$10,902.50 for post-Offer-of-Judgment attorney’s fees. Plain-

tiffs filed a memorandum opposing Defendants’ Bill of Costs.

On October 30, 1985, Plaintiffs filed their Bill of Costs,

requesting an assessment of $732.40 against Defendants, to

which Defendants have objected.

I. PLAINTIFFS’ COSTS

The first issue presented the Court is whether Plaintiffs may

recover some or all of their costs from Defendants. As a general

rule, a prevailing party to a lawsuit is entitled to have its oppo-

nent pay its costs unless a court directs otherwise. Fed. R. Civ.

P.54(d). Costs properly taxable to a losing party include clerk,

court reporter, and witness fees, docket costs and copying

costs. 28 U.S.C. §1920. Federal Rule of Civil Procedure 68,

however, provides in part:

At any time more than 10 days before the trial begins, a

party defending against a claim may serve upon the

adverse party an offer to allow judgment to be taken

24

against him for the money or property or to the effect

specified in his offer with costs then accrued. If within 10

days after the service of the offer the -dverse party serves

written notice that the offer is accepte’ either party may

then file the offer and notice of acceptance together with

proof of service thereof and thereupon the clerk shall

enter judgment. An offer not accepted shall be deemed

withdrawn... If the judgment finally obtained by the

offeree is not more favorable than the offer, the offeree

must pay the costs incurred after the making of the offer.

It is well settled that under Rule 68, a prevailing plaintiff may

not recover his post-Offer-of-Judgment costs from a defendant

if the final judgment plaintiff receives is less than defendant's

Offer of Judgment. Delta Air Lines, Inc. v. August, 450 U.S.

346, 352 & n.9, 101 S.Ct. 1146, 1150 & n.9, 67 L.Ed.2d 287

(1981); Chesny v. Marek, 720 F.2d 474, 478 (7th Cir. 1983),

rev'd on other grounds, 105 S.Ct. 3012 (1985).

Applying these principles, Plaintiffs in this action may

recover from Defendants their pre-Offer-of-Judgment costs.’

These include their filing and service of process fees of $60 and

$49 respectively, and court reporter fees totalling $394.40

incurred on April 11, 1983 and June 5, 1983. Because Plain-

tiffs’ verdict of $5,010 was less than Defendants’ $26,000 Offer

of Judgment, Plaintiffs may not recover their post-offer costs.

Plaintiffs may not recover witness fees totalling $229 incurred

on September 20, 1985 and September 24, 1985.

'! No issue is presented the Court regarding the validity of Defendants’

Offer of Judgment. An Offer of Judgment is generally proper if it does not

exclude costs and attorney's fees. Marek v. Chesny, 105 S.Ct. 3012, 3015-16

(1985). Defendants’ offer expressly included costs and attorney's fees.

2 These transcripts were of hearings before a hearing officer appointed to

hear Plaintiffs’ complaint to the Police Department of the City of Provi-

dence. The transcripts were referred to extensively in the course of this trial.

\

25

II. DEFENDANTS’ COSTS

The next issue presented is whether Defendants are entitled

an award of costs. Defendants assert that by operation of Rule

68, they are entitled to have Plaintiffs pay the costs Defen-

dants incurred after their Offer of Judgment. Plaintiffs main-

tain that Rule 68 operates only to deny Plaintiffs recovery of

their post offer costs.

Where a plaintiff refuses an Offer of Judgment and subse-

quently recovers less than the amount offered, not only is

plaintiff denied recovery of his post-offer costs, but plaintiff

must pay the costs incurred by the defendant after defendant’s

Offer of Judgment. Liberty Mutual Ins. Co. v. EEOC, 691

F.2d 438, 442 (9th Cir. 1982); Waters v. Heublein, Inc., 485

F. Supp. 110, 113, 117 (N.D. Cal. 1979); Mr. Hanger, Inc. v. _

Cut Rate Plastic Hangers, Inc., 63 F.R.D. 607, 610-11

(E.D.N.Y. 1974). In Mr. Hanger, Inc. v. Cut Rate Plastic

Hangers, Inc., supra, the court explained the rationale of

shifting a defendant's costs to a plaintiff under Rule 68. In that

case, defendants moved to compel plaintiff to pay the costs

incurred by them in defending plaintiff's patent infringement

suit. Defendant had made an Offer of Judgment, plaintiff had

refused it, and plaintiff was then unsuccessful at trial. The

court assessed defendant’s costs against the plaintiff. Mr.

Hanger, Inc., supra, at 611. It reasoned that the purpose of

Rule 68 is to induce settlement. Mr. Hanger, Inc., supra, at

610; accord Marek v. Chesny, 105 S.Ct. 3012, 3014-15 (1985).

Shifting all costs to an offeree who refuses to settle “ ‘puts teeth

in the rule and makes it effective by encouraging

acceptance.’ " Mr. Hanger, Inc., supra, at 610 (quoting Staf-

fend v. Lake Central Airlines, Inc., 47 F.R.D. 218, 219-20

(N.D. Ohio 1969) ).

Plaintiffs asserts that the Supreme Court has suggested a

contrary interpretation of Rule 68. Justice Stevens in Delta Air

Lines, Inc. v. August, supra, did imply that Rule 68 operates

to deny costs to a prevailing plaintiff and not to impose defen-

26

dant’s costs upon plaintiff. Delta Air Lines, Inc., supra, 450

U.S. at 359 n.24, 101 S.Ct. at 1153 n.24 (1981) (interpreting

12 C. Wright & A. Miller, Federal Practice and Procedure

§3001, p. 56 (1973) ). Justice Stevens was .ddressing the par-

ticular situation in which defendant and not plaintiff suc-

ceeded at trial and indeed, the holding in Delta Air Lines, Inc.

was that a successful defendant could not avail itself of Rule

68. See Delta Air Lines, Inc., supra, 450 U.S. at 352, 360 n.27,

101 S.Ct. at 1150, 1154 n.27; Delta Air Lines, Inc., supra, at

362, 101 S.Ct. at 1155 (Powell, J., concurring) .* Other Justices

have read Rule 68 to impose defendant’s costs upon a plaintiff.

See Marek v. Chesny, 105 S.Ct. 3012, 3025 n.14 (1985) (Bren-

nan, J., dissenting); see also Delta Air Lines, Inc., supra, 450

U.S. at 374 n.3, 101 S.Ct. at 1161 n.3 (Rehnquist, J., dissent-

ing) (taking issue with Justice Stevens’ interpretation of

Wright & Miller treatise). In addition, the state statutes after

which Rule 68 was modeled expressly provided that a party

who refused an Offer of Judgment must pay the post-offer

costs of the offeror. See id. Delta Air Lines, Inc., supra, 450

U.S. at 372-73 & n.2, 101 S.Ct. at 1160-61 & n.2 (Rehnquist,

J., dissenting).

Because the overwhelming weight of authority supports the

imposition of a defendant’s costs on a plaintiff who rejects an

Offer of Judgment and then recovers a less favorable judgment

at trial, the Court imposes Defendant’s post-offer costs upon

Plaintiffs. Plaintiffs are assessed Defendants’ copying costs of

$37.12, witness fees of $775.18, costs incident to taking deposi-

tions of $43.20 and subpoena costs of $25.

> Despite Justice Stevens’ broad language, Justice Powell in the same

- opinion suggested that the court’s holding meant unsuccessful defendants

could recover costs but successful defendants could not. Delta Air Lines,

Inc., supra, 450 U.S. at 362, 101 S.Ct. at 1155 (Powell, J., concurring).

27

Ill. DEFENDANTS’ ATTORNEYS FEES

The final issue the court must decide is whether Rule 68

“costs” include Defendants’ post-offer attorney's fees. Defen-

dants assert that if they can recover their post-Offer-of-

Judgment costs under Rule 68, they may also recover their

post-offer attorney’s fees in light of the recent Supreme Court

holding in Marek v. Chesny, supra, that Rule 68 costs include

attorney's fees. Indeed, a strict application of Marek requires

this result.

In Marek, plaintiff had rejected defendants’ Offer of Judg-

ment and had recovered a less favorable judgment at trial. The

issue presented the Supreme Court was whether Rule 68

barred plaintiff's recovery of its post-offer attorney fees under

42 U.S.C. §1988. The Supreme Court held that the term

“costs” as used in Rule 68 encompassed attorney’s fees, and the

Court therefore denied plaintiff recovery of fees. Marek,

supra, 105 S.Ct. at 3018. The Marek Court reasoned that the

most reasonable inference to be drawn from Congress’ failure

to define “costs” in Rule 68 was that “Rule 68 was intended to

refer to all costs properly awardable under the relevant

substantive statute or other authority.” Marek, supra, 105

S.Ct. at 3017. Because § 1988 allows the recovery of attorney’s

fees as costs, the Court reasoned that Rule 68 must include

attorney's fees in the context of § 1988. See Marek, supra, 105

S.Ct. at 3016-17.

The Marek holding contains no limiting language. Quite

simply, the Supreme Court has stated that “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.” Marek, supra, 105 S.Ct. at 3017. Because Rule 68

requires a prevailing plaintiff to pay defendant's post-Offer-

of-Judgment costs where plaintiffs judgment does not exceed

defendant's Offer of Judgment, supra Part II, a prevailing

plaintiff under these circumstances must pay defendant's post-

offer attorney's fees.

28

Plaintiffs argue that the Rule 68 interpretation Defendants

seek would truly be inconsistent with § 1988. Under §1988, a

prevailing defendant may recover attorney fees only if a plain-

tiff's claim was frivolous, unreasonable or without foundation.

Hughes v. Rowe, 449 U.S. 5, 14-15, 101 S.Ct. 173, 178, 66

L.Ed.2d 163 (1980). Plaintiffs argue that under the applica-

tion of Rule 68 sought by Defendants, Defendants would

recover fees from plaintiffs who won a verdict, and therefore

do not assert a frivolous claim. In his dissent in Marek, Justice

Brennan expressed the same concerns. See Marek, supra, 105

S.Ct. at 3023-24 (Brennan, J., dissenting); see also Delta Air

Lines, Inc., supra, 450 U.S. at 366 n.5, 101 S.Ct. at 1157 n.5

(Powell, J., concurring). Justice Brennan raised these con-

cerns, however, only after making it clear that the logical

extension of the Court’s denying plaintiff's fees under Rule 68

is to require plaintiffs to pay defendants’ fees under the rule.

Marek, supra, 105 S.Ct. at 3023 (Brennan, J., dissenting).

Moreover, the Marek majority addressed the argument that

the Rule 68 interpretation it adopted was inconsistent with 42

U.S.C. §1988 and rejected it. See Marek, supra, 105 S.Ct. at

3017-18.

This result may be viewed as having a “chilling” effect on

actions brought under 42 U.S.C. § 1983. See Chesny v. Marek,

720 F.2d 474, 478-480 (7th Cir. 1984). The majority of the

Supreme Court in reversing the Seventh Circuit Court of

Appeals in Marek, supra, did not give weight to this argu-

ment. The Supreme Court stated at 105 S.Ct. 3017-18:

Merely subjecting civil rights plaintiffs to the settlement

provisions of Rule 68 does not curtail their access to the

courts, or significantly deter them from bringing suit, . . .

there is no evidence, however, that Congress, in consider-

ing §1988, had any thought that civil rights claims were

to be on any different footing from other civil claims

insofar as settlement is concerned.

29

The- circumstances are that Defendants made a substantial

Offer of Judgment in the amount of $26,000, which Plaintiffs

deliberately spurned. Rule 68 is intended to encourage good

faith efforts to resolve disputes before trial. If all that is at risk

from plaintiffs’ point of view is an assessment of costs, exclu-

sive of counsel fees, plaintiffs can afford a less than serious con-

sideration of the Offer of Judgment and defendants have little,

or next to nothing to gain from making such offers. The effect

of awarding counsel fees to defendants will encourage defen-

dants to make serious offers and encourage plaintiffs to give

serious consideration to such offers. Although the Court has

the benefit of having heard all the evidence and the jury ver-

dict, on the basis of the information available to Plaintiffs at

the time of the Offer of Judgment, the rejection of the offer

must be said to have been more the action of a “river boat

gambler” than an objective evaluation of the possibilities. If

anything, the offer was generous, and its rejection whimsical.

There is no purpose to protect plaintiffs in actions brought

under 42 U.S.C. §1983 from the effects of tactical choices or to

deny to defendants the benefits of earnest efforts to resolve

such controversies.

For these reasons, the Court rules that Marek v. Chesny

governs this action and holds that Defendants may recover

attorney's fees from Plaintiffs under Rule 68. While the only

other courts to consider whether a defendant may recover its

attorney's fees from a plaintiff under Rule 68 have held dif-

ferently, see Bitsouni v. Sheraton Hartford Corp., 52

U.S.L.W. 2354 (D. Conn. Nov. 23, 1983); Waters v.

Heublein, Inc., supra, at 117, those other courts addressed this

issue before the Supreme Court decided Marek.

30

IV. CONCLUSION

In sum, under Rule 54(d) and 28 U.S.C. §1920 the court

awards Plaintiffs its costs incurred before Defendants’ Offer of

Judgment, but not those incurred after. Plaintiffs are entitled

to $503.40 in costs. The Court awards Defendants its post-

Offer-of-Judgment costs totalling $880.50 pursuant to Rule 68.

The Court also awards Defendants their post-Offer-of-Judg-

ment attorney fees totalling $10,902.50 as part of Rule 68

costs.

SO ORDERED.

31

United States Court of Appeals

” ag Fist Circuit P

No. 86-1058

DONNA CROSSMAN, ET AL.,

PLAINTIFFS, APPELLANTS,

vb.

MICHAEL MARCOCCIO, ET AL.,

DEFENDANTS, APPELLEES.

JUDGMENT

ENTERED DecemMBer 9, 1986

This cause came on to be heard on appeal from the United

States District Court for the District of Rhode Island, and was

argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows:

The judgment of the district court is affirmed in part and

reversed in part in accordance with the opinion issued

this day.

No costs.

By the Court:

Francis P. Scictiano, Clerk.

By (ILLEGIBLE),

Chief Deputy Clerk.

[cc: Messrs: Simon, Penza, Crump and Ms. Labinger]