Chesny v. Marek

720 F.2d 474 (1983)

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Nature of the Case

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Facts

Rule 68 (FRCP) allows a defendant, up to 10 days before the trial begins, to '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 offer is rejected and '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.' The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 provides that in a civil rights case the district 'court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.' The Supreme Court has interpreted the statute as creating a presumption in favor of awarding fees to a prevailing plaintiff. P sued Ds under §1983. Ds made a timely Rule 68 offer of $100,000 including costs. The final judgment was $60,000 and with accrued attorney’s fees and costs would come to $92,000 which is less than the $100,000 offer. The judge held that P had received a judgment that was less favorable than a valid Rule 68 offer. The judge awarded the attorney's fees and costs that the parties agreed P had reasonably incurred up to the date of the Rule 68 offer. The judge refused to award ds their attorney's fees, pointing out that section 1988 allows only the prevailing party's fees to be taxed as costs, and ds did not prevail; they did better than the P expected but it was P who was the prevailing party because the jury returned a verdict for P and judgment was entered on the verdict. P appealed seeking an award of fees for the time put in on the case after the Rule 68 settlement offer was made.