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Felders v. Bairett

United States Court of Appeals, Tenth Circuit

March 9, 2018

SHERIDA FELDERS; ELIJAH MADYUN, a minor, by and through LaToya Smedley, his mother; DELARRYON HANSEND, Plaintiffs - Appellees,
v.
BRIAN BAIRETT, a Utah Highway Patrol Trooper, Defendant-Appellant, and JEFF MALCOM, an Iron County Deputy and K-9 Unit Officer, Defendant.

         Appeal from the United States District Court for the District of Utah (D.C. No. 2:08-CV-00993-CW)

          Joshua D. Davidson, Assistant Utah Solicitor General (Sean D. Reyes, Utah Attorney General, with him on the briefs), Salt Lake City, Utah, for Defendant-Appellant Bairett.

          Robert B. Sykes (Rachel L. Sykes with him on the brief) Sykes McAllister Law Offices, PLLC, Salt Lake City, Utah, for Plaintiffs-Appellees.

          Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.

          EBEL, CIRCUIT JUDGE.

         This is a 42 U.S.C. § 1983 case; the single issue presented involves the costs to be awarded Plaintiffs after they prevailed at trial against Defendant Brian Bairett. Ordinarily prevailing parties can recover litigation costs from their opponent. See Fed. R. Civ. P. 54(d)(1). But Fed.R.Civ.P. 68 allows "a party defending against a claim" to limit his liability for the other side's costs by making a timely pretrial "offer to allow judgment" against him "on specified terms."[1] If the offeree rejects that offer of judgment and ultimately obtains a judgment against the defending party that is less than the rejected offer, then "the offeree must pay the costs incurred after the offer was made."

         Here, Defendant Bairett asserts that he effectively invoked Rule 68 to limit his liability for Plaintiffs' costs. But the district court ruled that Bairett's Rule 68 offer of judgment was premature, and thus ineffective, because Bairett made it before he had become a party to this litigation. We agree. Because Rule 68 requires the "party defending against a claim" to make an "offer to allow judgment" against him, and because a court cannot enter judgment against the offeror until he has first been made a party to the litigation, Bairett's offer, filed before Plaintiffs served him with the summons and complaint or obtained his waiver of service, was too early to be effective. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM the district court.

         I. BACKGROUND

         Plaintiffs Sherida Felders, Elijah Madyun and Delarryon Hansend initiated this litigation by filing their complaint on December 29, 2008. See Fed.R.Civ.P. 3 ("A civil action is commenced by filing a complaint with the court."). In that complaint, Plaintiffs asserted 42 U.S.C. § 1983 claims alleging, among other things, that Defendant Bairett and other law enforcement officers violated Plaintiffs' Fourth Amendment rights during a traffic stop. In February 2009, before Plaintiffs served Bairett (or any other defendant) with a summons and the complaint, Bairett offered to settle the case by paying the driver, Felders, $20, 000 and passengers Madyun and Hansend $2, 500 each. Bairett's offer, entitled "Defendant's Rule 68 Offer of Judgment, " stated, among other things, that

[i]n accordance with Rule 68, if Plaintiffs do not accept this offer in writing within ten (10) days after service [of the offer], the offer shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If Plaintiffs subsequently obtain a judgment against these Defendants that is not more favorable than this offer, Plaintiffs must pay the costs and fees that the Defendants incur after making of the offer.

         (Aplt. App. 330.) Plaintiffs did not accept Bairett's offer. Two months later, in April 2009, Plaintiffs timely sent Bairett's counsel a request to waive service of the summons and complaint, which Bairett's attorney executed. See Fed. R. Civ. P. 4(d), (m) (addressing waiver of service at plaintiff's written request).

         Six years later, a jury found Defendant Bairett liable for unlawfully searching Plaintiffs' car and awarded the driver, Felders, $15, 000, and her two passengers, Madyun and Hansend, nominal damages of $1 each. After the jury's verdict, Plaintiffs moved "To Strike and/or Deem Ineffective Bairett's Alleged 'Offer of Judgment.'" (Aplt. App. 286.) The district court granted that motion, ruling that Bairett's February 2009 offer to settle the case did not qualify as a Rule 68 offer to allow judgment against Bairett because he made that settlement offer before he became a party to this litigation. Bairett appeals that decision.F[2]

         II. JURISDICTION

         As a threshold matter, we conclude we have jurisdiction under 28 U.S.C. § 1291 to consider this appeal from the district court's final decision. "A 'final decision' is ordinarily one that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" In re Hayes Family Trust v. State Farm Fire & Cas. Co., 845 F.3d 997, 1003 (10th Cir. 2017) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). Here, after the jury returned its verdict, the parties timely filed several post-judgment motions, including Plaintiffs' motion to strike Bairett's Rule 68 offer of judgment. The district court resolved all of those post- judgment motions in an amended order dated September 1, 2016, including granting Plaintiffs' motion "To Strike and/or Deem Ineffective Bairett's Alleged 'Offer of Judgment.'" That decision ended the litigation on the merits and left nothing for the district court to do but execute the judgment. That was so notwithstanding that Plaintiffs' post-judgment motion regarding the amount of attorney's fees and costs to be awarded to the prevailing parties remained pending. Such a collateral motion did not prevent the district court's September 1, 2016 order from being final and appealable. See Ray Haluch Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Eng'rs & Participating Emp'rs, 134 S.Ct. 773, 777 (2014).

         Bairett filed a timely notice of appeal from the district court's September 1, 2016 order. See Fed. R. App. P. 4(a)(1)(A). Plaintiffs point out that the district court clerk had at that time not yet entered a separate judgment under Fed. R. App. P. 58 on the jury's verdict. But "[a] failure to set forth a judgment or order on a separate document when required by Fed.R.Civ.P. 58(a) does not affect the validity of an appeal from" an otherwise final and appealable judgment or order. Fed. R. App. P. 4(a)(7)(B); see also Constien v. United States, 628 F.3d 1207, 1210-12 (10th Cir. 2010). And, in any event, the district court clerk later entered a separate Rule 58 judgment on the jury's verdict so even if the notice of appeal was premature (it was not), that notice of appeal would have ripened when the separate judgment was entered. See Fed. R. App. P. 4(a)(2) ("A notice of appeal filed after the court announces a decision or order-but before the entry of the judgment or order-is treated as filed on the date of and after entry."); see also Constien, 628 F.3d at 1210.

         For these reasons, then, we have jurisdiction under 28 U.S.C. § 1291 to consider this appeal and, therefore, we DENY Plaintiffs' motion to dismiss this appeal for lack of jurisdiction.

         III. DISCUSSION

         A. Fed.R.Civ.P. 68 generally

         Turning to the merits of this appeal, we apply the version of Rule 68 in effect at the time Bairett made his settlement offer in February 2009. See Roska v. Sneddon, 366 Fed.Appx. 930, 938 (10th Cir. 2010) (unpublished). That version provided in full:

a) Making an Offer; Judgment on an Accepted Offer. More than 10 days before the trial begins, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 10 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.
(b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a ...

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