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Sand v. Greenberg

January 7, 2010

JESKA SAND, ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
STEVEN GREENBERG, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

ORDER

The parties are in a dispute concerning the correct interpretation of Defendants' Offer of Judgment, pursuant to Rule 68 ("Offer"), dated November 12, 2009, which reads in pertinent part:

Pursuant to Rule 68 (Defendants) offer to allow judgment to be taken against it with respect to the action filed by (Plaintiffs) in the amount of $525,000, on a class wide basis, inclusive of all damages, liquidated damages and/or interest plus reasonable attorneys' fees, costs and expenses actually incurred, to which plaintiffs may be entitled to by law, to be determined by the Court.

Four days later, on November 16, 2009, Plaintiffs' counsel served a Notice of Acceptance of Defendants' Offer of Judgment Pursuant to Rule 68 ("Notice of Acceptance"), which stated:

PLEASE TAKE NOTICE that, pursuant to Rule 68 of the Federal Rules of Civil Procedure, Plaintiffs accept Defendants' Offer of Judgment Pursuant to Rule 68. Defendants' Offer of Judgment Pursuant to Rule 68 is attached hereto as Exhibit A.

Attached as Exhibit A was a true copy of Defendants' November 12, 2009 Rule 68 Offer of Judgment. Plaintiffs filed the Offer and Notice of Acceptance (Docket Entry 160). Since Plaintiffs served a "written notice accepting the offer" (Fed. R. Civ. P. 68(a)), Plaintiffs sought to file a Proposed Final Judgment ("Proposed Judgment"), also dated November 16, 2009, which recited:

Defendants . . . in the above captioned action having offered on November 12, 2009 pursuant to Rule 68 of the Federal Rules of Civil Procedure, Plaintiffs to take judgment against it in the amount of FIVE HUNDRED, TWENTY-FIVE THOUSAND DOLLARS ($525,000) plus reasonable attorneys' fees, costs and expenses actually incurred, to which Plaintiffs may be entitled by law, to be determined by the Court (See Ex. A)*fn1 and Plaintiffs having accepted this offer of judgment on November 16, 2009 (See Ex. B),*fn2 it is hereby ORDERED, ADJUDGED AND DECREED that: Final judgment is entered in favor of Plaintiffs against Defendants . . . and Defendants . . . are to pay Plaintiffs the amount of FIVE HUNDRED, TWENTY-FIVE THOUSAND DOLLARS ($525,000) plus reasonable attorneys' fees, costs and expenses actually incurred to which Plaintiffs may be entitled by law, to be determined by the Court.

Immediately thereafter, Defendants' counsel wrote to the Court protesting that the Rule 68 Offer of $525,000 was all inclusive and that attorneys' fees were part of, not in addition to, the Rule 68 Offer. Defendants' counsel did not refer to Plaintiffs' Notice of Acceptance, which appears to be appropriate as to form. Instead, counsel argued that Plaintiffs' Proposed Final Judgment was defective in that it did not mirror "the language of Defendants' Offer of Judgment." The precise defect was the Proposed Order failed to indicate that the $525,000 judgment is inclusive of attorneys' fees, costs and expenses. (Defendants' counsel's letter of 11/16/2009).

The Court invited the parties to a conference held on November 17, 2009, to discuss an amicable resolution. That did not occur, however, and the Court asked the parties to brief the issue. Briefing was completed on December 16, 2009, and the Court heard argument on December 17, 2009.

Defendants' first argue that the Plaintiffs' Proposed Judgment is not a valid acceptance of Defendants' Offer of Judgment because it does not mirror the terms of the Offer. The Proposed Judgment is said to be defective in three ways:

(1) it does not reflect that the monetary offer was "inclusive" of all damages;

(2) it did not state that neither the offer, nor any judgment resulting from the offer, may be construed as an admission of liability; and finally

(3) it did not state that none of the Plaintiffs had really been harmed or suffered any damages. (Defendants' Memorandum, pg. 7, 8.)

Defendants describe these omissions as "blatant" and "brazen." In fact, they are not transgressions at all; rather, the Defendants' argument is irrelevant. The dispute here is not about how the proposed judgment should or should not be written. Indeed, while denials of liability and injury, or harm to one party, are appropriate for settlement documents and releases, it is dubious whether they are necessary or proper in a judgment. Whatever may be said about Plaintiffs' proposed judgment, it does not complete the contract. The contract was completed when Defendants' Rule 68 Offer of November 12, 2009 was accepted by the Plaintiffs on November 16, 2009. Goodheart Clothing Co. v. Laura Goodman Enterprises, Inc., 962 F.2d 268, 272 (2d Cir. 1992) (Rule 68 offers are to be interpreted in accordance with contract rules of interpretation). ...


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