Free Motion to Vacate - District Court of Colorado - Colorado

Case 1:02-cv-00289-RPM

Document 214

Filed 10/10/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02CV00289-RPM ROCKIE LEE ZIMMERMAN, Plaintiff, v. JOHN L. CHADBOURNE, II RUDY FANNIN, JOSH BENNER, MR. LAWRENCE, MR. DAZEY, MR. STECKLER, THE PIKES PEAK REGIONAL LAW ENFORCEMENT ACADEMY, Defendants.

PLAINTIFF'S MOTION TO VACATE JUDGMENT IN FAVOR OF DEFENDANTS AND MOTION TO ENTER JUDGMENT IN HIS FAVOR, PURSUANT TO FED. R. CIV. P. 68

Plaintiff, through his counsel of record, McConnell Siderius Fleischner Houghtaling & Craigmile, LLC, and pursuant to Fed. R. Civ. P. 59 and 68, respectfully moves the Court to Vacate Judgment entered in Defendants' favor and instead enter judgment in his favor, pursuant to Fed. R. Civ. P. 68. As grounds, Plaintiff states: 1. On September 21, 2006, Defendants served upon the Plaintiff an Offer of

Judgment dated September 20, 2006, pursuant to Fed. R. Civ. P. 68. (Attached as Exh. A). 2. On September 26, 2006, five days later, the Court entered an Order Granting

Summary Judgment of Dismissal in favor Defendants. Docket # 206. The Court later entered Judgment in favor of the Defendants. Docket # 207.

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3.

On September 27, 2006, a day after the Court entered its Order Granting

Summary Judgment of Dismissal, Plaintiff served on the Defendants a Notice of Acceptance of Defendants' Offer of Judgment, pursuant to Fed. R. Civ. P. 68. (Attached as Exh. B). 4. Under Fed. R. Civ. P. 68, the Plaintiffs' acceptance of the Defendants' Offer of

Judgment requires the Court to vacate its judgment entered in favor of the Defendants and instead enter judgment in favor of the Plaintiff. The rule provides: At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability. Id. (emphasis supplied). 5. The express language of Fed. R. Civ. P. 68 provides that an offer of judgment is

not revocable and may be accepted during the ten-day period after which it was made. Fed. R. Civ. P. 68. The federal courts that have considered the rule have agreed that Rule 68 offers of judgment are irrevocable during the 10-day period. See, e.g., Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1240 ((4th Cir. 1989); Richardson v. National Railroad Passenger Corp., 49 F.3d 760, 765 (D.C. Cir. 1995); Radecki v. Amoco Oil, 858 F.2d 397, 402 (8th Cir. 1988); Perkins v.

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U.S. West Comm., 138 F.3d 336, 339 (3d Cir. 1998); Fisher v. Stolaruk Corp., 110 F.R.D. 74, 75 (E.D. Mich.1986). 6. Perkins is on-point. Perkins, 138 F.3d at 339. Perkins was an employment case.

The employer made an offer of judgment to the plaintiff, a former employee. Id., at 337. Two days after the offer of judgment was made, the district court entered summary judgment in favor of the employer. Id. After learning of the summary judgment order, the plaintiff faxed an acceptance of the offer of judgment to the defendant-employer. Id. The plaintiff subsequently filed the Offer of Judgment, the Notice of Acceptance, and moved the district court to amend its judgment. Id., at 338. 7. The trial court granted the plaintiff's motion to amend the court's earlier

judgment, vacated its summary judgment order, and entered judgment in favor of the plaintiff. Id. The Eighth Circuit Court of Appeals affirmed. Id., at 337. It explained that an Offer of Judgment under Rule 68 is irrevocable and can be accepted even after summary judgment is entered, so long as the 10-day period prescribed by the rule has not expired. Id., at 339. The court further explained: Under Rule 68, if the offeree rejects the offer of judgment made by the defendant, and if "the judgment finally obtained by the offeree is not more favorable than the offer," the district court must order that the offeree pay the costs incurred by the defendant after the offer was made. Fed.R.Civ.P. 68. This provision shifts the risk of going forward with a lawsuit to the complainant, who becomes exposed to the prospect of liability for a part of the substantial expense of trial, and allows for no discretion in the district court to excuse the complainant from the imposition of costs. In addition, Rule 68 leaves no discretion in the district court to do anything other than enter judgment once an offer of judgment has been accepted. By directing that the clerk shall enter judgment after proof of offer and acceptance has been filed, the explicit language of the Rule indicates that the district court possesses no discretion to alter or modify the parties' agreement. Id., at 338.

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8.

Here, the Defendants' served an Offer of Judgment upon the Plaintiff, pursuant to

Fed. R. Civ. P. 68 dated September 20, 2006. Exh. A. Under Rule 68, the Defendants' Offer of Judgment was irrevocable until, at least, September 30, 2006. Plaintiff served upon the

Defendant an Acceptance of the Defendants' Offer of Judgment on September 27, 2006, within the 10-day period. Exh. B. Accordingly, the Court has no discretion but to enter judgment in favor of the Plaintiff for the amount of the Offer of Judgment: $2,500. Perkins, 138 F.3d at 339. CERTIFICATE OF CONFERRAL Pursuant to D.C.Colo.L.Civ.R. 7.1(a), undersigned certifies that he conferred with counsel for the Defendants concerning the issues contained herein. Counsel for Defendants indicated that he does not disagree that the Offer of Judgment was not revocable and was validly accepted, but disagrees about how it should be enforced. Those issues will be addressed when Defendants' Bill of Costs will be addressed. WHEREFORE, for the foregoing reasons, and pursuant to the foregoing authority, Plaintiff respectfully requests that the Court vacate its earlier Judgment, entered on September 26, 2006, and enter Judgment in favor Plaintiff for $2,500, pursuant to Fed. R. Civ. P. and Plaintiff's Acceptance of Defendants' Offer of Judgment. Exh. B. Dated this 10th day of October, 2006.

Respectfully submitted,

s/ Troy R. Rackham_________ Troy R. Rackham McConnell Siderius Fleischner Houghtaling & Craigmile, LLC 4700 South Syracuse, Suite 200 Denver, CO 80237

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Telephone: (303) 480-0400 Fax: (303) 458-9520 Email: [email protected] Attorneys for Plaintiff Rockie Lee Zimmerman CERTIFICATE OF SERVICE I hereby certify that on October 10, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to email addresses: David M. Tenner, Esq. Bond & Morris, P.C. 303 East 17th Avenue, Suite 888 Denver, Colorado 80203 [email protected] Shane White, Esq. Senior Attorney Office of the City Attorney P.O. Box 1575 30 South Nevada Avenue Colorado Springs, Colorado 80901 [email protected] /s/ Leah Stevens

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