SHERIDA FELDERS; ELIJAH MADYUN, a minor, by and through LaToya Smedley, his mother; DELARRYON HANSEND, Plaintiffs - Appellees,
BRIAN BAIRETT, a Utah Highway Patrol Trooper, Defendant-Appellant, and JEFF MALCOM, an Iron County Deputy and K-9 Unit Officer, Defendant.
from the United States District Court for the District of
Utah (D.C. No. 2:08-CV-00993-CW)
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.
B. Sykes (Rachel L. Sykes with him on the brief) Sykes
McAllister Law Offices, PLLC, Salt Lake City, Utah, for
TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
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." 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
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.
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,
[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.
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).
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
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).
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.
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
Fed.R.Civ.P. 68 generally
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
(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