Beruflich Dokumente
Kultur Dokumente
Before
Thompson, Circuit Judge,
Souter,* Associate Justice,
and Barron, Circuit Judge.
that may be made under the Rule as one "to allow judgment on
specified terms, with the costs then accrued."
Id.
The dispute
in this case turns largely on that last phrase -- "with the costs
then accrued" -- and the significance that should be attributed to
it.
The offeror here, the City of Lawrence ("the City"), is
defending in a civil rights action brought by a plaintiff who was
sexually assaulted by one of the City's police officers.
Prior to
trial, the City made a Rule 68 offer of judgment for $300,000 that
was
silent
as
to
whether
that
amount
was
inclusive
of
the
attorney's
fees."
Following
this
attempted
In
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then
filed
the
unamended
offer,
her
The
purported
Her lawsuit
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In September 2011,
LaPierre sued Sledge, the City, and City Police Chief John Romero
in Massachusetts Superior Court.
Sledge never
That letter
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following
day,
September
9,
LaPierre's
counsel
LaPierre's counsel also stated that her client would be moving for
"fees and costs incurred to date."
In the
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the
terms
differently."
Shortly
thereafter,
the
that LaPierre's civil rights claims under 1983 could not succeed
because Sledge had not been acting "under color of state law" when
he assaulted and raped LaPierre.1
LaPierre moved for reconsideration of that decision, but
the District Court denied that motion without explanation on May
13, 2015.
we now reverse on the ground that the District Court erred in not
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In
arguing that it was not, the City contends4 that extrinsic evidence
demonstrates that the parties attached two different meanings to
the offer.
threshold
question,
however,
is
whether
we
can
Romero chose not to file a brief in this matter and has made
no argument as to the Rule 68 issue.
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As those interpretive
issues are legal ones, our review of the District Court's decision
to consider extrinsic evidence in granting the motion to strike is
de novo.
F.3d 45, 47 (1st Cir. 2015) (noting that courts interpret Rule 68
offers of judgment according to "ordinary contract principles");
King v. Rivas, 555 F.3d 14, 17 (1st Cir. 2009) ("Rivas has now
appealed, arguing that the district court misconstrued Rule 68,
and our review of such a question is de novo."); Rodriguez-Abreu
v. Chase Manhattan Bank, N.A., 986 F.2d 580, 586 (1st Cir. 1993)
("Determining whether contract language is ambiguous is also a
question of law.").
Ordinarily, courts "must" enter judgment on an accepted
Rule 68 offer of judgment once it has been filed with the court
along with the acceptance and proof of service "regardless of what
took place . . . between the parties in the time between the offer
of judgment and [the offeree's] acceptance" -- that is, without
regard to what such extrinsic evidence might show.
Rijos, 799 F.3d at 48.
proposition.5
Garayalde-
Nor does the City challenge the established rule that Rule
68 offers of judgment, once made, are irrevocable for 14 days.
See Garayalde-Rijos, 799 F.3d at 47.
Accordingly, they do not
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The
City
was
allowed
to
"clarify"
its
initial
offer
in
its
"amended" offer that added a new term that addressed costs and
fees.6
The City does not appear to contend that its offer was
ambiguous. To the extent the City does mean to argue that it was,
however, we would reject that argument for the reasons expressed
herein.
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outside of the context of Rule 68, one would not be able to discern
from the face of the offer whether it was intended to be inclusive
of costs or not.
We
thus must read the offer in light of the Rule and the precedent
construing the Rule.
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Fed. R. Civ. P.
473
Id. at 6.
For that
Id.
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 to include in its judgment an additional
amount which in its discretion, it determines to be sufficient to
cover the costs."
The Marek Court was not considering an offer that was -like the one at issue here -- silent on the issue of whether the
offer was inclusive of costs.
contention
that
extrinsic
evidence
should
be
consulted
to
And we have
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(quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir.
1991)); see also Igarta v. United States, 626 F.3d 592, 605 n.15
(1st Cir. 2010) ("Carefully considered Supreme Court dicta, though
not binding, must be accorded great weight and should be treated
as authoritative.
marks omitted).
reducing
the
offeree's
response
period
from
the
14
days
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of
the
Rule
supports
reading
that
would
limit
the
But Radecki
"in
the
amount
of
$525,000.00,
including
costs
now
Id. at 400.
state that, because the statute under which the lawsuit was brought
(the Petroleum Marketing Practices Act) did not define attorneys'
fees as part of costs, the original offer had not been clear as to
whether it was inclusive of attorneys' fees.
For
that
reason,
the
Eighth
Circuit
concluded
that
the
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Id. at 400.
Radecki thus
10
The other cases cited by the City are also off point. In
Ducharme v. Rhode Island, No. 93-1675, 1994 WL 390144 (1st Cir.
1994), which the City describes as "upholding in dicta an amended
offer of judgment," the amendment to the offer was mutual, and not
unilateral. Id. at *2, *4. In Stewart v. Prof'l Computer Centers,
Inc., 148 F.3d 937, 938-39 (8th Cir. 1998), it was undisputed that
the offeree had purported to accept only the second offer made by
the offeror. The Eighth Circuit invalidated that acceptance based
on its conclusion that the face of that offer could be read to
affirmatively cover costs. There was thus no dispute in either
Ducharme or Stewart as to whether an offeror could use a second
offer to unilaterally "clarify" the terms of a first offer that
was silent as to costs. And in Atl. Constr. Fabrics, Inc. v. Dandy
Products, Inc., 64 F. App'x 757, 760 (Fed. Cir. 2003), the Federal
Circuit allowed a preacceptance clarification where the original
offer of judgment had not specified which of five possible products
were covered in the judgment of infringement.
Ambiguity as to
that type of issue is not presented here.
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and the City and the District Court's October 1, 2014 order
granting the City's motion to strike.
Costs on appeal
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