The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Plaintiff Shawn Harris ("Harris") has moved for reconsideration
of the May 24, 2004 memorandum opinion granting the motion of
defendant the City of New York to vacate the judgment and
directing the parties to file the offer and notice of acceptance
together with proof of service thereof. See Harris v. City of
New York, 03 Civ. 8767, 2004 WL 1151728 (S.D.N.Y. May 24, 2004).
For the reasons stated below, the motion is denied. However, the
recitation of facts will be corrected.
Harris argues that a formal judgment prepared by a party and
submitted under the procedures set out in Local Civil
Rule 77.1 is required for all judgments, including those based on the
filing of an offer and acceptance pursuant to Federal Rule of
Civil Procedure 68. Harris provides no controlling authority for
this proposition, as required by Local Civil Rule 6.3. See
Novomoskovsk Joint Stock Company "Azot" v. Revson, 95 Civ. 5399, 1999 WL
767325, at *1 (S.D.N.Y. Sept. 28, 1999) ("in order to prevail on
a motion for reconsideration, the proponent must show that the
Court overlooked or ignored critical facts or controlling law
that required a different result.").
Further, the entry of final judgment pursuant to Rule 68 is a
ministerial act that does not require the action of the judge.
See Bowles v. J.J. Schmitt & Co., 170 F.2d 617, 620 (2d Cir.
1948) ("the clerk may enter final judgment without action of the
judge or jury . . . upon notice of acceptance of an offer of
judgment under rule 68"); Cesar v. Rubie's Costume Co., Inc.,
219 F.R.D. 257, 260 (E.D.N.Y. 2004) ("the Rule 68 language which
states that the clerk `shall enter judgment' upon the filing of
an accepted offer `removes discretion from the clerk or the trial
court as to whether to enter judgment upon the filing of the
accepted offer'") (quoting Webb v. James, 147 F.3d 617, 621
(7th Cir. 1998)); Christian v. R. Wood Motors, Inc.,
91-CV-1348, 1995 WL 238981, at *5 (N.D.N.Y. Apr. 21, 1995)
("Rule 68 judgments are self-executing. . . . [O]nce the parties
agree on the terms of a Rule 68 judgment, the court has no
discretion to withhold its entry or otherwise to frustrate the
agreement.") (quoting Mallory v. Eyrich, 922 F.2d 1273, 1279
(6th Cir. 1991)). Rule 77.1, which pertains to "[p]roposed
orders, judgments and decrees," is not appropriate for a
Rule 68 judgment, in which the court has no authority to reject a
proposed judgment. Local Civil Rule 77.1 (emphasis added). Harris's motion for
reconsideration is accordingly denied.
The factual recitation in the May 24, 2004 opinion is
incorrect, however, in that it fails to mention that Harris had
filed the offer of judgment and his acceptance together with
proof of service on April 12, 2004. Harris's error, therefore,
was not in failing to file the documents required under Rule 68,
but in adding a "Notice of Settlement of Proposed Judgment."
Under Rule 68, the offer, acceptance, and proof of service are
all that is necessary for the entry of final judgment. See
Gardner v. Catering by Henry Smith, Inc., 205 F. Supp.2d 49,
51 (E.D.N.Y. 2002) ("A plaintiff's acceptance of a Rule 68 offer
of judgment constitutes a final judgment.").
For the reasons stated above, the motion for reconsideration is
denied, and the request for correction of the recitation of facts
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