Mann et al v. Redman Van & Storage Co., Inc. et al

Filing 129

ORDER denying 120 Motion for Order/Judgment. Signed by Judge Dana L. Christensen on 3/7/2012. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

DAVID K. MANN, ELIZABETH S.
MANN, DELANEY MANN, and
MAKENZIE MANN,

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Plaintiffs,
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vs.
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REDMAN VAN & STORAGE CO., INC. )
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Defendant.
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___________________________________ )

CV 10-128-M-DLC

ORDER

Defendant Redman Van has filed a motion pursuant to Rule 68 to assess
costs in addition to the costs already taxed in accordance with the procedures and
authority of Rule 54(d)(1) and Local Rule 54.1.
The Defendant made a Rule 68 offer of judgment to the Plaintiffs on July
14, 2011. See Fed. R. Civ. P. 68. Plaintiffs refused the offer of judgment, and the

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Court held a trial in this matter from January 23-28, 2012. The jury returned a
verdict in favor of the Defendant and against the Plaintiffs.
Rule 68(a) allows a defendant to make an offer of judgment to an opposing
party in a civil case. If the offeree refuses the offer of judgment and later obtains a
judgment that is “not more favorable than the unaccepted offer,” Rule 68(d)
requires the offeree to pay the costs incurred by the defending party after the offer
was made. Rule 68(d)’s costs provision applies only if the offeree obtains a
judgment for less than the amount of the offer; it has no application where the
offeree loses the case. “Federal Rule 68 is inapplicable in a case in which the
defendant obtains judgment.” MRO Communications, Inc. v. American Tel. &
Tel. Co., 197 F.3d 1276, 1280 (9th Cir. 1999). Because the jury’s verdict found
no negligence on the part of the Defendant and awarded no judgment to the
Plaintiffs, the Defendant has no basis to recover costs under Rule 68.
Accordingly, IT IS HEREBY ORDERED that the Defendant’s Rule 68
motion to assess costs (Doc. No. 120) is DENIED.
Dated this 7th day of March, 2012.

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