Martinez et al v. Red's Towing

Filing 41

ORDER re 35 Emergency MOTION for Hearing/Conference, by Magistrate Judge Kristen L. Mix on 11/25/2014. ORDERED that the portion of the Motion 35 taken under advisement on November 17, 2014, is DENIED without prejudice. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00458-KLM
LEONARD MARTINEZ,
DOUG PATRICK,
SAMANTHA PATRICK,
DEVIN QUINTANA,
SCOTT ROSENBAUM,
STEVEN ROSENBAUM,
JOSEPH VIALPANDO,
MICHAEL WOLFE,
DENNIS GREGORY,
FRANCISCO MEDINA, and
SCOTTIE LEE WRAY,
Plaintiffs,
v.
RED’S TOWING,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ Motion for Emergency Hearing on
Fed. R. Civ. P. Rule 68 Offer of Judgment and Request for Extension on Deadline to
File a Motion to Dismiss [#35] (the “Motion for Hearing”). A Response [#36] in opposition
to the Motion and a Reply [#37] have been filed. On November 2, 2014, Plaintiffs filed a
Notice of Acceptance of Offer of Judgment [#32], stating that all Plaintiffs except for
Leonard Martinez and Michael Wolfe accepted Defendant’s Offer of Judgment [#32-1]. In
the Motion [#35], Plaintiffs state that “[o]n November 12, 2014, Defendant’s counsel notified

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Plaintiffs’ attorney that Defendant will not be paying the Offer of Judgment, but may do so
in ‘installments’ at some unknown time in the future as it is able.” Plaintiffs further state:

The purpose of a Rule 68 Offer of Judgment is to encourage settlement. The
spirit of the rule is to allow Plaintiffs to settle instead of going to trial. The
Offer of Judgment did not state that payment would not be made, or would
not be made until some unknown future date(s). Plaintiffs would not have
accepted the Offer if they had known that they were not settling this case by
their acceptance of the Offer.
Therefore, the Offer of Judgment was not made in good faith. Plaintiffs
respectfully ask this Court to impose sanctions on Defendant, and
Defendant’s counsel pursuant to Fed. R. Civ. P. Rule 11, and ask this Court
to invalidate the acceptance of the Offer. Further, Plaintiffs respectfully
request that an emergency hearing be held before this Court at its soonest
available opportunity.
Motion [#35] at 2.
On November 17, 2014, the Court entered a Minute Order on the Motion [#35] in
which it took under advisement the portion of the Motion concerning the validity of the Offer
of Judgment and Plaintiffs’ request for sanctions against Defendant and Defendant’s
counsel under Rule 11. The present Order adjudicates these issues.
Once Plaintiffs filed the Offer of Judgment [#32-1] and the Notice of Acceptance
[#32], the Clerk of Court should have immediately and automatically entered judgment in
this matter. This is nondiscretionary. See Fed. R. Civ. P. 68(a) (“The clerk must then enter
judgment.”). If a plaintiff seeks to attack an offer of judgment after a notice of acceptance
is filed, but before judgment has actually entered on the matter, “the formally more proper
way to approach the problem would be to allow judgment to be entered and attack the
judgment under Rule 60(b) . . . .” 12 C. Wright, A. Miller, R. Marcus, Federal Practice &
Procedure § 3004. See also Richardson v. Nat’l R.R. Passenger Corp., 49 F.3d 760, 765
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(D.C. Cir. 1995) (stating that “the proper way to proceed . . . is for the Defendant to attack
the judgment produced by the Rule 68 offer—which upon acceptance is to be automatically
entered by the clerk—under Rule 60”). It appears that the immediate and automatic entry
of judgment by the Clerk of Court was inadvertently overlooked. Accordingly,
IT IS HEREBY ORDERED that the Clerk of Court shall enter judgment in favor of
all Plaintiffs except Leonard Martinez and Michael Wolfe and against Defendant in
accordance with Fed. R. Civ. P. 68(a). See Notice of Acceptance with Offer of Judgment
[#32].
IT IS FURTHER ORDERED that the portion of the Motion [#35] taken under
advisement on November 17, 2014, is DENIED without prejudice. Any post-judgment
attacks on the judgment must be brought under Fed. R. Civ. P. 60(b). Any requests for
sanctions must be brought under Fed. R. Civ. P. 11.

Dated: November 25, 2014

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