N.D.Ill.: Offer Of Judgment, Silent On Its Face As To Attorneys Fees And Costs, Read To Allow For Attorneys Fees And Costs

Garcia v. Oasis Legal Finance Operating Co.

Plaintiff filed a one-count Complaint against Defendant in which she asserted violations of the Equal Pay Act, 29 U.S.C, § 206 et seq., and requested, inter alia, the following relief; an Order awarding her the difference between wages paid to her and those paid to similarly situated male employees, liquidated damages, and statutory attorneys’ fees and costs. Defendant answered the Complaint, denying the material allegations. This Motion concerned Plaintiff’s acceptance of Defendant’s Offer of Judgment, as more fully detailed below.

On November 20, 2008, Defendant’s attorney mailed a Rule 68 Offer of Judgment to Garcia’s counsel. Defendant’s attorney also faxed a copy of this Offer to Plaintiff’s counsel on that same date. This Offer read in its entirety:

As you know our firm represents Oasis Legal Finance, LLC, and Oasis Legal Finance Operating, LLC in reference to the above captioned matter. This letter is being written to you pursuant to F .R.C.P. 68, “Offer of Judgment”. Please be advised that pursuant to F.R.C.P. 68 the defendants offer judgment to the plaintiff, Karina Garcia, in the sum of $3,850.00. Pursuant to F.R.C.P. 68, your client has ten (10) days to accept the offer in judgment as set forth herein. If you have any questions, please contact me. Thank you,

On December 8, 2008, Plaintiff’s attorney submitted a letter to Oasis’ counsel accepting the Offer. This letter read in its entirety:

This letter is in response to Defendant’s offer of judgment which was served via U.S. mail on November 20, 2008. Your letter provided only that “defendants offer judgment to the plaintiff, Karina Garcia, in the sum of $3,850.00″ in connection with Ms. Garcia’s cause of action under the Equal Pay Act in the above referenced federal case. Because the offer of judgment is for an amount in excess of the value of Plaintiff’s Equal Pay Act claim, Plaintiff hereby accepts the offer of judgment as stated for her currently pending federal action. Since Defendant’s offer made no reference to costs or attorney’s fees, Plaintiff will proceed with a petition for fees and costs as to this cause of action upon entry of the judgment. Plaintiff’s claims under Title VII and the Illinois Human Rights Act remain under investigation at the EEOC/IDHR and cannot be resolved through the offer of judgment. If you wish to discuss those claims as the investigation moves forward, please feel free to call me.

Defndant then filed a Motion to Strike Plaintiff’s Purported Acceptance of Offer of Judgment, asserting Plaintiff’s purported acceptance was not in fact an acceptance, but was rather a rejection and a counter-offer, which is impermissible under Rule 68, Plaintiff cross-motioned for judgment in her favor. On January 26, 2009, the Court granted Plaintiff’s Motion, denied Defendant’s Motion, and directed the Clerk to enter judgment for Plaintiff. The Clerk entered judgment on January 27, 2009. The Court, in its January 26, 2009 Opinion and Order, granted Plaintiff leave to file a motion for attorneys’ fees if it was appropriate to do so. Plaintiff filed her Motion for Attorneys’ Fees on February 17, 2009.

The Court discussed, at length, the issue of whether Defendant’s Offer of Judgment, as made, was inclusive or exclusive of attorneys fees:

“Oasis correctly asserts that its Rule 68 Offer covered the sole Count of Garcia’s complaint, and that Garcia’s claim sought attorneys’ fees as part of the requested relief. The Court must therefore first determine, as a threshold matter, whether Garcia’s acceptance of Oasis’ Offer of Judgment precludes her from seeking a further award of attorneys’ fees.

Oasis contends that Nordby controls. In that case, defendants made a Rule 68 Offer of Judgment “in the amount of $56,003.00 plus $1,000 in costs as one total sum as to all counts of the amended complaint.” Nordby, 199 F.3d at 391. Plaintiff accepted the Offer, and moved the district court for a statutory award of attorneys’ fees. Id. The court denied the motion, reasoning that the Offer as accepted included fees. Id. On the specific set of facts before it, the Seventh Circuit affirmed, finding that the Offer unambiguously included fees. ” ‘One total sum as to all counts of the amended complaint’ can only mean one amount encompassing all the relief sought in the counts. One of those counts specified attorneys’ fees as part of the relief sought. That relief was covered by the offer.” Id. at 392.

Garcia, on the other hand, asserts that Oasis’ Offer of Judgment is more like the one made by defendants in Webb. In that case, defendants’ Offer read in its entirety; “The Defendants, Dick James and Dick James Ford, Inc., by their attorneys, Steven C. Wolf and Victoria A. Barnes, hereby make an offer of judgment in the above-captioned matter in the amount of Fifty Thousand Dollars ($50,000.00) pursuant to Federal Rule of Civil Procedure 68.” Webb, 147 F.3d at 619. The district court granted plaintiff’s separate motion for fees, and the Seventh Circuit affirmed. The Seventh Circuit first noted that, “[o]n its face, the offer did not address costs or fees,” id., and later observed that it would have been a simple matter for defendants to “have drafted the offer to signal Webb that it was inclusive of attorney’s fees.” Id. at 623, Because a Rule 68 Offer puts plaintiffs at risk whether or not they accept it, the Seventh Circuit reasoned, “the defendant must make clear whether the offer is inclusive of fees when the underlying statute provides fees for the prevailing party … [T]he plaintiff should not be left in the position of guessing what a court will later hold the offer means.” Id. The Seventh Circuit found that the defendants should therefore “bear the burden of the ambiguity created by their silence on fees,” and held that the district court could “award an additional amount to cover costs and fees.” Id.

In this case, although it is a close call, the Court determines that the Offer of Judgment made by Oasis is more like the one in Webb than the one in Nordby. Here, the Offer of Judgment states in part, “Please be advised that pursuant to F.R.C.P. 68 the defendants offer judgment to the plaintiff, Karina Garcia, in the sum of $3,850.00.” The Offer is silent as to attorneys’ fees and costs, and does not include, like the Offer in Nordby, language to the effect that the Offer is “one total sum” as to the entirety of Garcia’s requested relief Moreover, there is no question that it would have been a simple matter for Oasis to clearly indicate in its Offer whether fees were included. A standard Rule 68 Offer of Judgment form published by Bender’s Federal Practice includes specific language defendants can use to indicate that costs and fees are included in an Offer of Judgment. 11-68 Bender’s Federal Practice Forms No. 68:3; see also 11-68 Bender’s Federal practice Forms, Comment on Rule 68, ¶ 6 (“it is well established that when an offer is silent about whether the sum specified includes costs and attorney’s fees, the silence means that the court will add costs and attorney’s fees to the amount stated. An argument that the lump sum was meant to include all costs and attorney’s fees will be unavailing.”). Because Oasis failed to take the simple step of indicating whether the Offer included fees and costs, Oasis must “bear the burden of [its] ambiguity created by [its] silence on fees.” See Webb, 147 F.3d at 619. The Court therefore determines that Garcia’s acceptance of Oasis’ Offer of Judgment does not preclude her from pursuing an award of fees and costs.”

Leave a comment

Filed under Offer of Judgment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s