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United States District Court, S.D. New York

July 7, 2004.

SHAWN HARRIS, Plaintiff,

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 is granted.

  It is so ordered.


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