Wagner v. City of Omaha, et al

Filing 120

MEMORANDUM AND ORDER - THEREFORE, IT IS ORDERED: Plaintiff's motion to accept offer, Filing No. 94 , is denied. Defendants' motion to strike offer, Filing No. 98 ,is granted. Ordered by Judge Joseph F. Bataillon. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT WAGNER,
Plaintiff,

8:12CV392

vs.
MEMORANDUM AND ORDER
CITY OF OMAHA, et al.,
Defendants.

This matter is before the court on plaintiff’s motion for judgment on Rule 68 Offer
and Acceptance, Filing No. 94, and the motion to strike motion for judgment on Rule 8
Offer filed by defendants City of Omaha, Jackie Dolinsky, and Aaron Pennington, Filing
No. 98. Plaintiff alleges in his first amended complaint that the defendant officers used
excessive force and failed to intervene in the use of force during his arrest at the
Creighton University Medical Center on May 29, 2011. See Filing No. 64. Plaintiff also
alleges that the City of Omaha has a policy and practice of not adequately investigating
or disciplining police officers for excessive force. Plaintiff pleaded the following counts
against each of the defendants: Count I, excessive force; Count II, conspiracy; Count
III, failure to intervene; and Count IV, indemnification against the City of Omaha.
Plaintiff contends that on July 31, 2013, these three defendants served a Rule 68
Offer of Judgment on the plaintiff offering to allow judgment to be entered against “all or
any one or more of them” on “one or more” of plaintiff’s claims against them in the
amount of $16,000 plus costs and reasonable fees. Plaintiff argues that on August 12,
2013, he accepted the offer as to plaintiff’s claim for failure to intervene against
defendant Dolinsky. Pursuant to Rule 68, plaintiff filed a notice of offer and acceptance.

Plaintiff contends that the Rule 68 Offer is clear and unambiguous. He argues that the
plaintiff could choose to accept judgment against “any one” of these three defendants
on “any one” of plaintiff’s claims against the defendant for $16,000, and that this
language is in the disjunctive “or.” The use of the disjunctive, argues plaintiff, allows
him to choose judgment against all three defendants or just one or just two of them.
See Utility Automation 2000, Inc. v. Choctawhatchee Elec. Co-op., Inc., 298 F.3d 1238,
1244 (11th Cir. 2002) (“Rule 68 requires that the responsibility for clarity and precision
in the offer must reside with the offeror.”); Sanchez v. Prudential Pizza, Inc., 709 F.3d
689, 694 (7th Cir. 2013) (“Whether the ambiguity is accidental or strategic, Rule 68 must
be interpreted to prevent such strategic use of ambiguity by construing an ambiguous
offer against the offered defendant’s interests, whether the question arises from the
offer’s acceptance or rejection.”).

Plaintiff further relies on the Eighth Circuit which

stated:
Rule 68 leaves no discretion in the district court to do anything other than
enter judgment once an offer of judgment has been accepted. By
directing that the clerk shall enter judgment after proof of offer and
acceptance has been filed, the explicit language of the Rule indicates that
the district court possesses no discretion to alter or modify the parties’
agreement.
Perkins v. U.S. West Communications, 138 F.3d 336, 338 (8th Cir. 1998).
The offer of judgment served on plaintiff by defendants states in relevant part:
PURSUANT TO Federal Rule of Civil Procedure 68, without
admitting any allegation, the Defendants Dolinsky, Pennington, and City of
Omaha offer to allow judgment to be taken against all or any one or more
of them in favor of the Plaintiff on the following terms.
1. Judgment on one or more of the Plaintiffs’ claims in the total
cumulative amount of sixteen thousand dollars and no cents ($16,000.00);
and,

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2. Reasonable taxable costs accrued to this date to be determined
by the court in accordance with local rules; and,
2. [sic] Reasonable attorney fees accrued to this date to be
determined by the court in accordance with 42 U.S.C. § 1988 and
pertinent case law.
Filing No. 95, Ex. A. Thereafter, plaintiff served these three defendants an Acceptance
of Rule 68 Offer of Judgment which stated:
Pursuant to Federal Rule of Civil Procedure 68, Plaintiff Robert
Wagner accepts Defendant Dolinsky’s offer of judgment on the terms
offered by her:
1. Judgment only on Plaintiff’s claim of failure to intervene only
against Defendant Dolinsky in the total cumulative amount of sixteen
thousand dollars and no cents ($16,000.00); and,
2. Reasonable taxable costs accrued to July 31, 2013, the date of
service of the Rule 68 Offer of Judgment, in accordance with local rules;
and,
3. Reasonable attorney fees accrued to July 31, 2013, the date of
service of the Rule 68 Offer of Judgment, to be determined by the court in
accordance with 42 U.S.C. § 1988 and pertinent case law.
Filing No. 95, Ex. B. Following this alleged acceptance, defendants sent the following
letter signed by attorney Thomas Mumgaard to plaintiff on August 14, 2013:
The Acceptance varies from the terms of the Rule 68 Offer of
Judgment served by the City of Omaha and Officers Dolinsky and
Pennington and does not sufficiently reflect the offer. The offer was made
jointly and collectively by all three offering defendants. The acceptance,
however, attempts to accept “Defendant Dolinsky’s offer” on the “terms
offered by her.” Defendant Dolinsky did not make any such separate offer
and did not offer any such separate terms.
Filing No. 95, Ex. C.
These three defendants argue that there is no valid offer and acceptance under
Rule 68. In fact, defendants contend that plaintiff made a counteroffer. Defendants
further argue that this is a joint and collective offer by all three defendants. Defendants
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assert that the offer and acceptance do not match, and they must be mirror images of
each other.

The offer, say defendants, clearly says “the Defendants Dolinsky,

Pennington, and City of Omaha offer”, and it does not say “and/or” and thus it is a
collective offer. The deal offered, contends the defendants, was between plaintiff and
all three defendants, not just the plaintiff and Dolinsky. Defendants rely on the rationale
used by the Eighth Circuit which stated:
We now come to Radecki’s purported acceptance. As we noted
earlier, for Radecki and Amoco to have created a binding agreement there
must have been an objective manifestation of mutual assent. As one
court has put it, the acceptance must “mirror” the offer. Bentley [v.
Bolger], 110 F.R.D. [108] at 113 [(C.D. Ill. 1986)]. We hold that Radecki’s
purported acceptance does not sufficiently reflect Amoco’s offer and
therefore does not amount to an acceptance. While attempting to accept
Amoco’s offer, Radecki simultaneously filed a motion for attorney fees.
Clearly, Radecki intended to accept an offer for $525,000 that was not
inclusive of attorney fees, which is an offer Amoco had not extended. The
materially different intent of the parties as manifested in their actions
shows there was no mutual assent, and hence no binding agreement.
Radecki v. Amoco Oil Co., 858 F.2d 397, 403 (8th Cir.1988). The court notes that
Radecki dealt with a case with an ambiguous offer of judgment and an assent, but there
was no acceptance of the offer as given. Id. at 400. However, in another Eighth Circuit
case, the court noted where the offer is ambiguous but the offeree accepts it just as
written, an enforceable agreement is formed. Hennessy v. Daniels Law Office, 270
F.3d 551, 553 (8th Cir. 2001).
“An offer of judgment is generally treated as an offer to make a contract.”
Hennessy, 270 F.3d at 553. Recently the Third Circuit stated: “In interpreting a Rule 68
offer of judgment, courts must not consider extrinsic evidence or the intentions of the
parties. Nor can they allow their awareness of such irrelevant facts to influence their

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interpretations of the plain language of the Offer.” Lima v. Newark Police Dep’t, 658
F.3d 324, 333 (3d Cir. 2011).
Plaintiff claims the offer was unambiguous and he accepted in accordance with
the offer. Defendants claim the offer is unambiguous and there was no acceptance of
the original terms. Such a reading of the offer, argue defendants, would permit the
issue of failure to intervene to be relitigated as to other defendants, particularly
Pennington and the City of Omaha. These two defendants would be uncertain as to the
effect of the acceptance on them during and following trial.
As stated herein, ambiguities are construed against the maker in contracts
dealing with offers of judgment. The court first finds that the offer is clearly ambiguous.
The offer is open to several interpretations. The language: “offer to allow judgment to
be taken against all or any one or more of them in favor of the Plaintiff on the
following terms” and the language “Judgment on one or more of the Plaintiffs’ claims in
the total cumulative amount of sixteen thousand dollars and no cents ($16,000.00)”
is clearly ambiguous. For example, the offer can be read to allow settlement with each
individual at $16,000 per person, for a total of $48,000.

The offer can also be

interpreted as a settlement that plaintiff can settle with one or more defendants for
$16,000 each, which could result in a $16,000, or $32,000, or $48,000 settlement(s).
The offer can be construed to allow a total settlement of all three defendants in the total
cumulative amount of $16,000. As a result of the various conflicting language used in
the offer, the court finds it is clearly ambiguous.
Therefore, the court must determine if the plaintiff accepted any of the potential
offers. The court finds the answer is no. Plaintiff tried to carve out one defendant and

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one claim. When read together, there is no basis for plaintiff to accept only one claim
(failure to intervene) against one defendant (Dolinsky) for the $16,000. The court simply
does not see such an interpretation in the offer. The court finds the plaintiff did not
accept any of the possible offers. Plaintiff made a counteroffer, which included terms
that did not exist in the offer. The terms did not mirror any of the possible offers made
by the defendants. Accordingly, there was no timely acceptance by the plaintiff of any
of the potential offers.
THEREFORE, IT IS ORDERED:
1. Plaintiff’s motion to accept offer, Filing No. 94, is denied;
2. Defendants’ motion to strike offer, Filing No. 98,is granted.
Dated this 10th day of December, 2013.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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