Virginia Kinney v. Aker Kvaerner Inc., et al

Filing

UNPUBLISHED OPINION FILED. [10-20024 Affirmed ] Judge: EHJ , Judge: JES , Judge: EBC Mandate pull date is 10/22/2010 [10-20024]

Virginia Kinney v. Aker Kvaerner Inc., et al

Doc. 0

Case: 10-20024

Document: 00511250993

Page: 1

Date Filed: 10/01/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 1, 2010 N o . 10-20024 S u m m a r y Calendar Lyle W. Cayce Clerk

V I R G I N I A KINNEY, P la in t if f -A p p e lla n t v. A K E R KVAERNER INC.; AKER KVAERNER STRATEGIC OPERATIONS, INC. D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:08-CV-860

B e fo r e JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges. P E R CURIAM:* V ir g in ia Kinney refused a Rule 68 offer of judgment ($17,000) from her fo r m e r employer whom she had sued on several grounds. She received a partial ju d g m e n t for over $5,600 for an FLSA violation (and attorneys fees), then went t o a bench trial on claims for discrimination and contract breach and lost. The c o u r t entered final judgment on the merits and subsequently denied her Rule 59
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

Dockets.Justia.com

Case: 10-20024

Document: 00511250993

Page: 2

Date Filed: 10/01/2010

No. 10-20024 m o t io n s and granted appellees' motion pursuant to Federal Rules of Civil P r o c e d u r e 68, to assess nearly $6,000 in court costs against Kinney. K in n e y timely appealed the Rule 68 order but also vigorously contests the t r ia l court's failure to grant her a jury trial. We find no error and affirm. 1 . To the extent Kinney now argues that the Rule 68 order was erroneous, s h e is plainly wrong. The rule is not discretionary: Once a plaintiff has been o ffe r e d a judgment, refused it, and receives a lower or no award at trial, "the o ffe r e e must pay the costs incurred after the offer was made." 2 . Kinney did not file a notice of appeal of the final judgment within thirty d a y s as required by Federal Rules of Appellate Procedure 4(a)(1)(A). But even if her pro se appeal were timely, she waived any objection to a jury trial because s h e raised no complaint about the court's seasonable bench trial notice either in h e r subsequent pleadings or before or during the bench trial. See McDonald v. S te w a r t, 132 F.3d 225, 229 (5th Cir. 1998). A F F IR M E D .

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