Schmidt, Sethi & Akmajian Blog

Civil Procedure: Rule 68 Offer of Judgement

Posted by Ted A. Schmidt | May 11, 2022 | 0 Comments

Kubiak v. County of Ravalli, No. 21-35542 (9th Cir., May 3, 2022) (J.Fisher)

Plaintiff brought this 42 U.S.C. § 1983 action against the defendants. Defendants moved for summary judgement and thereafter, the defendant county made a $50,000 plus costs and fees Rule 68 offer of judgment.  Before the 14 day window on the offer of judgment had run the Montana District Court granted defendants' summary judgment motion.  The court however did not enter a final judgment stating such a judgment would be entered “in due course” after a “reasoned opinion” is issued. Six minutes later the county attempted to withdraw the offer of judgment. Within an hour of the order granting summary judgment, the plaintiff accepted the county's offer of judgment.  The district court entered judgment for the plaintiff in the amount of $50,000 plus costs and attorneys' fees.  The United States Court of Appeals for the Ninth Circuit affirmed. 

Rule 68 offers are “nonnegotiable” and ambiguities are interpreted against the offeror. Application of the rule is mechanical: “Rule 68 allows no discretion on the part of the district court. If the plaintiff accepts a Rule 68 offer, ‘it is automatically entered by the clerk of court.'” Once made, the offer is either accepted or rejected. It must remain open for 14 days. It is not subject to negotiation or revocation. There are no exceptions.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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