Rule 68 — Circuit Split as to Validity of Unapportioned Offer of Judgment to Multiple Plaintiffs — Where Offer Doesn’t Break Out Statutorily Awardable Fees, Judgment = Reasonable Fees + Verdict — Are Fees Available for Nominal Verdict?
Doe v. Rutherford Cnty., 2015 U.S. Dist. LEXIS 13200 (M.D. Tenn. Feb. 4, 2015):
Following a jury trial, the jury entered a verdict in favor of the defendant on all counts other than plaintiff Jane Doe's Title IX retaliation claim. Pending before the court are several post-trial motions and related requests for costs, including the plaintiffs' Motion for New Trial (Docket No. 202), the defendant's Post-Trial Motion for Costs (Docket No. 184), plaintiff Jane Doe's Motion for Attorney's Fees (Docket No. 197), Jane Doe's Bill of Costs (Docket No. 199), and the defendant's Bill of Costs (Docket No. 201). For the reasons stated herein, the various requests for fees and costs will be granted in part and denied in part, the court will award Jane Doe $3,105.53 in pre-offer of judgment fees and expenses and nominal damages, the court will award the defendant $12,289.65 in post-offer of judgment expenses against Jane Doe only, and the court will deny an award of costs to the defendant relative to June and Sally Doe.
I. The Parties, the Claims, and the Trial Verdict
This case involved claims by Jane Doe, June Doe, and Sally Doe (the "Doe Sisters"). During the relevant time frame, the Doe Sisters were enrolled in, and played basketball for, Siegel High School [*2] ("SHS"), a school overseen by the defendant, the Rutherford County Board of Education (the "RCBE").***
Briefly, in their Second Amended Complaint (Docket No. 30), the Doe Sisters alleged that Allison Bush, whose father coaches SHS's basketball team, "goosed" them during practice, that the school did not adequately respond when the Doe Sisters (via their parents) reported this activity to SHS and RCBE officials, and that the coach retaliated against the Doe Sisters for reporting the alleged sexual assaults. Each sister asserted a claim for discrimination and a claim for retaliation under Title IX, 20 U.S.C. § 1682.
*** On September 30, 2014, a jury trial began on all six claims (i.e., two per plaintiff). The jury began its deliberations on October 6, 2014. On October 7, 2014, the jury rendered a verdict, finding in favor of the defendant on all claims other than Jane Doe's Title IX retaliation claim. With respect to Jane Doe's retaliation claim, although the jury found the [*3] RCBE liable for retaliation, the jury awarded her only nominal damages of $1.00. The verdict form was docketed on October 8, 2014 (Docket No. 178), and the court entered the judgment [*4] on October 9, 2010. (Docket No. 180).
MOTIONS AND REQUESTS RELATED TO EXPENSES AND ATTORNEY'S FEES
Rule 68 and § 1988
The parties' remaining motions concern the allocation of litigation expenses and fees.
All of these requests relate, in one form or another, to the effect of the Offer of Judgment. "Rule 68 permits a party defending against a claim to make a pretrial settlement offer, and if the claimant rejects the offer but then obtains a judgment that is less favorable, the claimant 'must pay the costs incurred after the offer was made.'" Hescott v. City of Saginaw, 757 F.3d 518, 527 (6th Cir. 2014) (quoting Fed. R. Civ. P. 68). The rule encourages early settlements by increasing the risk to claimants of continuing to litigate once the defending party has made a settlement offer. Id. Thus, claimants who refuse a settlement offer and [*25] later fail to receive a more favorable judgment must not only pay their own post-offer costs, but also the defending party's post-offer costs. Id. If applicable, the rule is mandatory and leaves a district court without any discretion to deny costs. Id. "By encouraging compromise, Rule 68 discourages both protracted litigation and vexatious law suits." Mallory v. Eyrich, 922 F.2d 1273, 1277 (6th Cir. 1991). The rule prompts both parties to a suit to evaluate the risks and costs of litigation and to balance them against the likelihood of success upon trial on the merits. Id.
Notably, Rule 68 does not define the term "costs." In Marek v. Chesny, the Supreme Court held that "the term 'costs' in Rule 68 was intended to refer to all costs properly awardable under the relevant substantive statute or other authority." 473 U.S. 1, 9 (1985). "Thus, absent a congressional expression to the contrary, where the underlying statute defines 'costs' to include attorney's fees, we are satisfied such fees are to be included as costs for purposes of Rule 68." Id.
In Marek, the Court applied these principles to an action implicating (as here) the § 1988 fee-shifting statute for civil rights claims. Section 1988 provides that "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as [*26] part of the costs[.]" 42 U.S.C. § 1988 (emphasis added). Based on this language, the Supreme Court concluded that, because "Congress expressly included attorney's fees as 'costs' available to a plaintiff" under § 1988, such fees are subject to the cost-shifting provision of Rule 68." Thus, "[c]ivil rights plaintiffs . . . who reject an offer more favorable than what is thereafter recovered at trial will not recover attorney's fees for services performed after the offer is rejected." Id. (emphasis added).10
10 In Hescott, the Sixth Circuit considered whether a plaintiff who rejects a Rule 68 offer of judgment and later recovers a less favorable judgment must also pay its adversary's attorney's fees from the offer date forward. 757 F.3d at 527. The Sixth Circuit observed that, in a typical case, § 1988 only authorizes a prevailing civil rights defendant to recover its fees where the plaintiff's action was "frivolous, unreasonable, or without foundation." [*28] Id. at 529 (quoting Hughes v. Rowe, 449 U.S. 5, 14 (1980)). In light of that distinction, the court held that, "because § 1988 is not a two-way fee-shifting statute, Rule 68 cannot force a prevailing civil-rights plaintiff to pay a defendant's post-offer attorneys' fees." Id. at 528 (internal quotation omitted). Here, because the RCBE concedes that the plaintiffs' action was not frivolous, unreasonable, or without foundation, the RCBE has not requested its fees as part of the recoverable "costs" under Rule 68. (See Docket No. 185 at p. 2 n.2 (citing Hescott, 757 F.3d at 529).)
As the Sixth Circuit explained in Mallory:
Marek v. Chesny,  has exposed civil rights plaintiffs to an additional risk in rejecting a Rule 68 offer. In the absence of a Rule 68 offer, the prevailing party in a civil rights action is entitled to an award of attorney fees under 42 U.S.C. § 1988. Yet under Marek, Rule 68 "costs" have been construed to include all costs that may be awarded under the relevant substantive statute . . . . Therefore, as was the case in Marek , if the plaintiff in a civil rights action under § 1983 rejects an offer of judgment under Rule 68, proceeds [*27] to trial and wins a judgment less favorable than the offer, the defendant is not liable for the plaintiff's attorney fees, even though § 1988 awards to the prevailing party attorney fees as a part of costs.
922 F.2d at 1278.11 In Mallory, the court further explained how the offer of judgment must affect a plaintiff's settlement calculus:
The rule announced in Marek becomes relevant to this case because under 42 U.S.C. § 1973(e), attorney fees are included as "costs," as they are under § 1988. As a result, the plaintiffs in this case faced an additional risk if they had rejected the defendants' offer of judgment: by rejecting the offer and then subsequently prevailing but somehow receiving a "less favorable" judgment at trial, they would have been required to bear their own attorney fees; fees to which they would have been entitled absent the Rule 68 offer. Therefore, Marek provided an additional significant inducement for the plaintiffs to accept the offer of judgment made by the defendants in the case.
12 Marek has generated a substantial body of scholarly debate about the purposes of Rule 68, its use as a "settlement promotion tool," and its application to civil rights cases. See, e.g., Jay Horowitz, Rule 68: The Settlement Promotion Tool that Has Not Promoted Settlements, 87 DENVERU. L. REV. 485 (2010); Michael Solimine & Bryan Pacheco, State Court Regulation of Offers of Judgment and Its Lessons for Federal Practice, 13 OHIO ST. J. ONDISP. RESOL. 51 (1997); Robert G. Bone, To Encourage Settlement: Rule 68 Offers of Judgment, and the History of the Federal Rules of Civil Procedure 102 NW. U. L. REV. 1561 (2008). For example, Professor Bone's article traces the history of Rule 68 and contends that, based on his construction of Rule 68's antecedents in nineteenth-century common law doctrines and related state codes, the Supreme Court has fundamentally misinterpreted the purposes and function of an offer of judgment, which Professor Bone believes was never intended as a settlement tool in the manner in which we understand it today.
"Operation of Rule 68 is mandatory, and the district court retains no discretion under Rule 68 to alter the rule's sometimes severe application." Sharpe v. Cureton, 319 F.3d 259, 274 (6th Cir. 2003) (internal quotations and brackets omitted). "This lack of discretion [*29] is particularly true in cases in which the offer of judgment has been rejected and the subsequent award to the plaintiff is less favorable than the offer. In these cases, the district court must award costs to the offeror." Mallory, 922 F.2d at 1278. Thus, the application of Rule 68 is fundamentally different than the application of Rule 54(d). See Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 295 (6th Cir. 1989) ("Although the district court normally has discretion [under Rule 54(d)] as to whether to award costs to the prevailing party, where a Rule 68 offer is made and the judgment finally obtained by the plaintiff is not more favorable than the offer, he must pay the costs incurred after the asking of the offer. This language is mandatory; where the rule operates, it leaves no room for district court discretion.") (quoting Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 442 (9th Cir. 1982)).
Here, the RCBE's Offer of Judgment contained a $30,000 unconditional offer to settle the case with all three plaintiffs, "inclusive of any alleged damages, interest, costs, attorney's fees, or any other amounts whatsoever." Under the terms of § 1988, only Jane Doe, who received a verdict in her favor on her retaliation claim, is a "prevailing plaintiff." Thus, [*30] the question for the court to resolve is whether the "judgment obtained" by Jane Doe was more or less favorable than the RCBE's Offer of Judgment.13
13 As discussed herein, the Supreme Court has held that Rule 68 does not apply to prevailing defendants. See Delta Air Lines, Inc. v. August, 450 U.S. 346, 351 (1981).
B. Comparing the Actual Judgment to the Offer of Judgment
In determining whether a Rule 68 offer is "more favorable" than the actual judgment, "Rule 68 requires the court to compare a settlement that includes 'costs then accrued' with the 'judgment that the [claimant] finally obtains.'" Id. (quoting Fed. R. Civ. P. 68.) Here, the parties dispute how the court should measure the value of the "judgment" that Jane Doe "finally obtain[ed]." Jane Doe contends that the court should (1) determine the total [*31] value of her awardable fees under § 1988 for work performed on all plaintiffs' behalf during the entire litigation, including both pre-offer and post-offer fees; and (2) compare that amount (plus $1.00) to the value of the RCBE's settlement offer of $30,000. By contrast, the RCBE contends that the court should not include the plaintiffs' post-offer fees in calculating the value of the "judgment obtained." Instead, the RCBE argues that the court should determine the reasonable pre-offer fees and expenses to which Jane Doe may be entitled, add $1.00, and determine whether that amount exceeds $30,000.
Rule 68 is silent on this issue. However, the prevailing approach, which the Sixth Circuit adopted in Hescott, is that the "judgment finally obtained" under Rule 68 includes the damages award plus pre-offer fees and expenses actually awarded. See Hescott, 757 F.3d at 527 ("[T]he 'judgment' used to make this apples-to-apples comparison includes not just the damages award, but also the claimant's pre-offer costs and fees actually awarded.") (emphasis added); see also Grosvenor v. Brienen, 801 F.2d 944, 948 (7th Cir. 1986); Bogan v. City of Boston, 489 F.3d 417, 431 (1st Cir. 2007); Marryshow v. Flynn, 986 F.2d 689, 692 (4th Cir. 1993); Scheeler v. Crane Co., 21 F.3d 791, 793 (8th Cir. 1994); Petrowski v. Merchants [*32] & Med. Credit Corp., 256 F.R.D. 544, 549 (E.D. Mich. 2008). The Sixth Circuit in Hescott approvingly cited Marryshow, in which the Fourth Circuit articulated the following rationale for this rule:
Rule 68 requires that a comparison be made between an offer of judgment that includes "costs then accrued" and the "judgment finally obtained" . . . . To make a proper comparison between the offer of judgment and the judgment obtained when determining, for Rule 68 purposes, which is the more favorable, like "judgments" must be evaluated. Because the offer includes costs then accrued, to determine whether the judgment obtained is more favorable . . . the judgment must be defined on the same basis - verdict plus costs incurred as of the time of the offer of judgment.
986 F.2d at 692 (emphasis added). The Sixth Circuit in Hescott also approvingly cited Bogan, in which the First Circuit explained that crediting a plaintiff's requested amount for pre-offer fees and costs, rather than the amount actually awarded by the court after conducting the "reasonableness" analysis, would be illogical. As Bogan explained: "[A] prevailing party could always evade the Rule 68 bar simply by asking for a sufficiently large fee award so that the judgment [*33] finally obtained exceeds the offer." 489 F.3d at 431; see also Pietrowski, 256 F.R.D. at 549-550.
Here, the court must therefore conduct a two-step analysis: (1) the court must determine what pre-offer fees and expenses (i.e., the "costs" under § 1988) are reasonable under the circumstances; and (2) the court must then add the value of the jury award to that amount (here, just $1.00) and compare that number to the value of the offer.
C. The Compensable Fees and Expenses
Jane Doe seeks reimbursement for $351.20 in pre-offer expenses and $8,260.00 in pre-offer attorney's fees. (Docket No. 206, Ex. 3.) The court must therefore evaluate what amount, if any, of the $8,611.20 in pre-offer fees and expenses are compensable.
Section 1988 permits a court in its discretion to award the "prevailing party" in a civil rights action "reasonable" attorney's fees as part of the "costs." Pouillon v. Little, 326 F.3d 713, 716 (6th Cir. 2003). In Farrar v. Hobby, the Supreme Court addressed how § 1988 applies to civil rights plaintiffs who achieve only a technical victory. 506 U.S. 103 (1992). There, the plaintiffs filed a § 1983 lawsuit against several Texas public officials, alleging a deprivation of liberty and property without due process with respect to the alleged illegal closure of a school that the [*34] decedent and his son had operated. Id. at 106. The plaintiffs sought only monetary relief at trial. Id. After a jury trial, the jury found for the plaintiffs on liability, but awarded them no damages. Id. at 106-07. The district court judge awarded the plaintiffs $280,000 in fees as the "prevailing party" under § 1983. Id. at 107. On appeal, the Supreme Court held that the district court erred in awarding any fees to the plaintiffs. The Court explained:
Although the "technical" nature of a nominal damages award or any other judgment does not affect the prevailing party inquiry, it does bear on the propriety of fees awarded under § 1988. Once civil rights litigation materially alters the legal relationship between the parties, the degree of the plaintiff's overall success goes to the reasonableness of a fee award under Hensley v. Eckerhart, 461 U.S. 424  (1983). Indeed, the most critical factor in determining the reasonableness of a fee award is the degree of success obtained. . . . Where recovery of private damages is the purpose of . . . civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought. Such a comparison promotes the court's central responsibility [*35] to make the assessment of what is a reasonable fee under the circumstances of the case. Having considered the amount and nature of damages awarded, the court may lawfully award low fees or no fees without reciting the 12 factors bearing on reasonableness  or multiplying the number of hours reasonably expended . . . by a reasonable hourly rate.
In some circumstances, even a plaintiff who formally "prevails" under § 1988 should receive no attorney's fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing party. As we have held, a nominal damages award does render a plaintiff a prevailing party by allowing him to vindicate his absolute right to procedural due process through enforcement of a judgment against the defendant. In a civil rights suit for damages, however, the awarding of nominal damages also highlights the plaintiff's failure to prove actual, compensable injury. . . . When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all.
Id at 114-115 (internal citations and quotations omitted, except as noted) [*36] (emphasis added). The Court did not elaborate on what might distinguish a "usual" case from an "unusual" one.
In Pouillon, the Sixth Circuit applied the principles stated in Farrar to a case that is procedurally analogous to this one. There, the plaintiff was arrested by police officers while staging an abortion protest on the steps of his local city hall. 326 F.3d at 715. The plaintiff filed a lawsuit under § 1983 for false arrest and malicious prosecution, seeking compensatory and punitive damages. Id. at 715-16. The defendants served two Rule 68 offers of judgment on the plaintiff, the second for $10,001, inclusive of costs and attorney's fees, which the plaintiff did not accept. Id. at 716. The case went to trial. Although the jury returned a verdict for Pouillon against two of the defendants, the jury awarded only $2.00 in nominal damages ($1.00 as to each of those two defendants) Id. Pouillon moved for attorney's fees under § 1988, and the defendants cross-moved to recover their costs under Rule 68. Id. The district court denied the defendant's Rule 68 motion and granted Pouillon's [*38] motion for attorney's fees, awarding him $35,690. Id.
On appeal, the Sixth Circuit reversed the district court in all respects. With regard to attorney's fees, the court found that the district court had abused its discretion by awarding fees to Pouillon, who had only achieved a "technical victory." Id. at 717. The Sixth Circuit observed that Pouillon had sought only compensatory and punitive damages, and the court found that Pouillon had not demonstrated that his case was distinguishable from the "usual" case where a prevailing civil rights plaintiff is not entitled to attorney's fees when all that he has won is a technical vindication of his rights in the form of nominal damages. Id. Accordingly, the court found that the district court had abused its discretion in awarding any attorney's fees to Pouillon. With respect to the offer of judgment, the court found that (1) the Rule 68 offer of judgment was effective, and (2) because Pouillon's $2.00 nominal damages award was less favorable than the defendants' Rule 68 offer, Pouillon was obligated to pay the defendant's post-offer costs and to shoulder his own post-offer costs.15Id. at 718-19.
On the other hand, the Sixth Circuit has emphasized that "[t]oo great an emphasis [*39] on the amount realized from the judgment would detrimentally encourage attorneys to concentrate on increasing the damage award, perhaps with harm to the merits of the case; moreover, transfixion on the damage amount in establishing fees would penalize those litigants whose cases carry slight pecuniary damages, but which present instances of significant statutory violations." United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Ass'n, Local 307 v. G&M Roofing & Sheet Metal Co., Inc., 732 F.2d 495, 503 (6th Cir. 1984). In many instances, the Sixth Circuit has upheld fee awards in nominal damages cases, including claims governed by § 1988. See, e.g., Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir. 1981); Fegley, 19 F.3d at 1135 ("We have upheld substantial awards of attorney's fees even though a plaintiff recovered only nominal damages.") (internal quotation omitted). Other circuit courts and district courts within this circuit have also awarded damages [sic: fees] in civil rights cases that resulted in only nominal damages verdicts, including at least one Title IX decision. See Mercer v. Duke Univ., 401 F.3d 199 (4th Cir. 2005) (upholding $350,000 fee award to prevailing Title IX plaintiff who won only nominal damages, where plaintiff prevailed on a "first-of-its kind liability determination" that a contact-sport exemption cannot excuse discrimination against a female seeking to join an all-male contact [*40] sport team, and thereby "marked a milestone" in the development of the law under Title IX); Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119 (1st Cir. 2004) (upholding fee award to civil rights plaintiffs recovering nominal damages, where determination that city officials had terminated municipal employees based on their political affiliations "represented a significant legal conclusion serving an important public purpose"); Layman Lessons, 550 F. Supp. 2d at 764-65 (fee award justified, where plaintiff proved a claim under RLIUPA, a recently passed statute with "scant case law to date construing it").
Here, the court finds that a partial award of pre-offer fees is warranted. On the one hand, Jane Doe sought only monetary relief, engaged in approximately eighteen months of litigation, spurned two early offers to settle the case for a substantial sum, and demanded $325,000 in compensation at trial. Her lawsuit sought only monetary relief from start to finish. On the other hand, the statutory right under Title IX to be free from retaliation for reporting sexual harassment is an important one. If acts of retaliation, even minor ones, are left unchecked, it could chill the exercise of the underlying rights that Title IX seeks to protect. Although Coach Bush's decision not to play Jane Doe [*41] on Senior Night appears to be the only alleged retaliatory act for which the jury held the RCBE liable, the vindication of Jane Doe's rights under Title IX may have a future deterrent effect.
In weighing these competing considerations, the court finds that the results obtained were limited, but not de minimis. Under the circumstances, the court finds that a "reasonable" fee in this case is a partial pre-offer attorney's fee award (and cost award) that is discounted for the limited results obtained. Even the plaintiffs concede, relative to their request for all of their fees, that a reduction of at least 50% is warranted to account for the limited results obtained. Relative to the pre-offer fees, the court will reduce the requested fee award by two-thirds, resulting in an award of $2,753.33 in fees. Although the RCBE has asserted other arguments as to why the plaintiffs' fee request should be reduced, such as duplication of effort or work on matters irrelevant to the litigation, those arguments are largely inapplicable to the pre-offer time entries. The court finds no reason to adjust its pre-offer fee award based any of the other Johnson factors.
As to the pre-offer expenses, the RCBE [*42] appears to concede that Jane Doe is entitled to those (meager) expenses. (See Docket No. 205 at p. 2 ("[D]efendant is only liable for $351.20 in pre-offer costs and the Clerk should not tax against Defendant any costs that accrued after May 13, 2013".)
Accordingly, the court finds that Jane Doe is entitled to $2,753.33 in pre-offer fees and $351.20 in pre-offer expenses, for a total of $3,104.53. Combined with the nominal damages award of $1.00, the value of the "judgment obtained" under Rule 68 is $3,105.53.
Was the Offer of Judgment Fatally Ambiguous?
The plaintiff argues that the Rule 68 Offer of Judgment was ambiguous, and therefore defective, because it contained an un-apportioned, lump-sum monetary offer. The text of Rule 68 is silent on this issue, the Sixth Circuit has not addressed it, and sister circuits and other district courts have taken varying approaches to this issue. Rule 68 speaks only of a single "offeree," not multiple offerees (or, for that matter, multiple offerors).
Courts generally agree that an Offer of Judgment should provide a plaintiff a "clear [*43] baseline from which plaintiffs may evaluate the merits of their case relative to the value of the offer." Sharpe, 319 F.3d at 275 (quoting Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999)); Roska v. Sneddon, 366 F. App'x 930, 940 (10th Cir. 2010) (same). Courts also generally agree that the offer should be sufficiently clear to permit a court to assess whether the actual judgment received by an individual plaintiff is less than that plaintiff's share of the offer. Roska, 366 F. App'x at 940-41. Here, the parties dispute whether the Offer of Judgment was sufficiently clear to permit a comparison between the judgment actually obtained and Jane Doe's share of the settlement offer.
There appears to be a split among sister circuits as to how best to handle an undivided Rule 68 offer. Compare Gavoni, 164 F.3d at 1076-77 (holding, over vigorous dissent, that only specifically apportioned offers are valid under Rule 68);17 Thomas v. Nat'l Football League Players Ass'n, 273 F.3d 1124, 1130 (D.C. Cir. 2001) (agreeing with Gavoni that an unallocated offer of judgment to multiple plaintiffs is not effective under Rule 68); with Roska v. Sneddon, 366 F. App'x at 940-42 (distinguishing Gavoni and Thomas, and finding un-apportioned Rule 68 offer of judgment to plaintiffs to be valid, where plaintiffs were "a single family represented by a single attorney, claiming mental and emotional damages [*44] arising from the same set of facts," the plaintiffs never requested clarification of the offer, the plaintiffs' complaint demanded damages collectively, the plaintiffs never made individualized damages disclosures to defendants, and the plaintiffs stated that offer would not be accepted regardless of application to individuals); Jordan ex rel. Arenas-Jordan v. Russo, 2014 WL 869482 (W.D. Pa. Mar. 5, 2014) (un-apportioned offer effective, where plaintiffs were "all related, resided in the same household, and were jointly represented by the same attorney"); Bryant v. Sagamore Ins. Co., 2014 WL 4269065 (E.D. Okla. Aug. 28, 2014) (un-apportioned offer valid, where plaintiffs were father and daughter, never disclosed individual damages, shared same attorney, and "were in the best position to determine their damages"); see also King v. Rivas, 555 F.3d 14 (1st Cir. 2009) (stating that allocation among defendants is not required).
17 In Harbor Motor Co. v. Arnell Chevrolet-Geo, Inc., 265 F.3d 638, 649 (7th Cir. 2001), a case involving multiple defendants, the Seventh Circuit backed away from this categorical rule, stating that "we need not go so far as to conclude . . . that Rule 68 always requires an exact delineation of the manner in which damages are to be apportioned among multiple parties."
Having examined the various approaches, it appears that evaluating a Rule 68 offer of judgment to multiple plaintiffs involves a case-specific inquiry. That inquiry generally takes into account the factual relatedness of the plaintiffs' respective claims, whether the plaintiffs are related or otherwise have an identity of interest, whether the plaintiffs are represented by the same counsel, whether the plaintiffs were in a superior position to evaluate the [*45] value of their own claims, whether the plaintiffs provided individual assessments of their damages to the defendant during the litigation, whether the plaintiffs operated as a "unified" front in litigating and attempting to settle the case, and whether the plaintiffs sought clarification of the un-apportioned Rule 68 offer at issue.
Here, all factors favor the RCBE's position. Each iteration of the plaintiffs' Complaint alleged generalized damages, without specification as to each plaintiff. The plaintiffs' Rule 26(a) disclosures included only generalized boilerplate, without specification as to each plaintiff. The plaintiffs negotiated settlement terms as a unit, such as by serving unitary settlement offers. The plaintiffs did not ask the RCBE for clarification concerning either of the RCBE's lump-sum offers of judgment. During this litigation, the plaintiffs gave no indication to the RCBE or its counsel that they would consider settling individually. Save for some limited distinctions, the Doe Sisters essentially sought recovery [*46] based on the same set of facts. Based on these factors, the court views Jane Doe's current argument as disingenuous: if the plaintiffs were legitimately unsure about the valuation of their individual claims relative to the Offer of Judgment or if they legitimately considered settling separately, they could have sought clarification of the Offer of the Judgment from the defendant or, in the alternative, asked for court intervention. Instead, they simply let the offers expire and continued to litigate as a unit.
Notwithstanding these considerations, Jane Doe argues that it was difficult to compare her proportionate share of the $30,000 offer to the value of the judgment and that, as a consequence, the lump-sum Rule 68 has no effect. If she is right, then the RCBE would have been better off if each plaintiff had won a liability verdict with nominal damages, rather than having two sisters lose outright. If the two sisters had prevailed by winning a verdict for nominal damages, the court would have a perfectly equivalent basis for comparison - three plaintiffs who declined to accept $30,000, and the same three plaintiffs who, in the aggregate, recovered less than that in damages and pre-offer [*47] costs. The additional compensatory value of June Doe and Sally Doe's claims in this scenario would be essentially zero, and the maximum "judgment finally obtained" would be $8,614.20, reflecting total pre-offer fees and expenses requested plus $3.00 - only a fraction of the $30,000.00 demand. It would be a perverse result for the RCBE to be penalized, in effect, for having prevailed against two of three Doe Sisters. Indeed, that result would not further the objectives of Rule 68 in encouraging settlement and forcing plaintiffs to value their claims realistically before trial. Under the circumstances presented in this case, the court therefore finds that the appropriate comparison is between the value of the offer and the sisters' aggregated "judgment obtained," which is $1.00 plus Jane Doe's $3,104.53 in recoverable pre-offer fees and expenses. See Roska, 2010 WL 618092, at 941-42 (adopting similar approach); Jordan, 2014 WL 869482, at *17 n.9 (same). Under this approach, the RCBE's offer of judgment is effective because the $30,000 offer exceeds the Doe Sisters' collective recovery of $3,104.53.
Even if the court were to compare only Jane Doe's recovery to her share of the Offer of Judgment, the court would still find for the RCBE. Although Jane Doe's counsel [*48] now asserts that Jane Doe had no ability to value her share under the original offer, the court views that representation as a post hoc attempt to avoid the severe consequences of Rule 68, rather than a legitimate factual representation. The Sixth Circuit takes a dim view of this type of attempt to skirt Rule 68. See Sharpe v. Cureton, 319 F.3d 259, 275 (6th Cir. 2003) ("The firefighters' pleas of ambiguity are a thinly-veiled attempt to avoid the mandatory application of Rule 68 in this case, due to the admittedly severe effect the rule has on plaintiffs' fee award."). Indeed, the record contains at least three indications that Jane Doe valued her claims at exponentially more than $30,000 - well over the $3,105.53 that the court is awarding to her or, for that matter, the total $8,611.20 in pre-offer fees and expenses that she has requested. First, on April 9, 2013, before the lawsuit was filed, plaintiffs' counsel demanded an un-apportioned $500,000 to settle the claims on behalf of all three plaintiffs. Counsel also stated that any settlement would need to be "six figures," between $100,000 and $500,000. Second, after the court denied the RCBE's Motion for Summary Judgment, the plaintiffs made a lump-sum un-apportioned offer of $375,000 to settle the [*49] case. Third, in closing argument, counsel for the plaintiffs requested damages of $325,000 for Jane Doe, $275,000 for June Doe, and $100,000 for Sally Doe. Considering these developments together, the plaintiffs and their attorneys were able to value their own claims, they likely valued Jane Doe's claim as worth more than her sisters' claims, and they valued her individual claim at far more than $3,105.53 (indeed, far more than the $8,611.20 in pre-offer fees and expenses requested) at all times during this litigation. Tellingly, the plaintiffs, their parents, and their counsel have provided no sworn representations to the court that they actually valued Jane Doe's claims at or below the value of the offer (let alone at or below the pre-offer fees and expenses requested or awarded), that they actually had any difficulty evaluating the Offer of Judgment relative to Jane Doe's claims, or that Jane Doe actually encountered any internal difficulty in determining whether to accept or reject the Offer of Judgment.
However one construes the $30,000 Offer of Judgment, it is apparent that Jane Doe gambled and lost. Although applying Rule 68 here will result in a net award in favor of the RCBE as against [*50] Jane Doe, the potential for this harsh result (forfeiting the right to recover post-offer fees and being forced to pay the other side's post-offer expenses) should have been part of her calculus in declining to accept the Offer of Judgment. She and her sisters had an opportunity to settle this litigation for $30,000 when the case was in its infancy. Believing that their claims were worth far more than that amount, both individually and collectively, they refused to settle for the money offered by the RCBE. In pursuing the litigation, Jane Doe and her sisters caused a local public district to expend substantial resources defending itself against claims that a jury later found had no monetary value. In this context, Rule 68 operates to relieve the defendant of some of the litigation burdens it incurred after it made the Offer of Judgment.
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