MAHMOOD v. NARCISO et al

Filing 115

MEMORANDUM and ORDER denying 87 Motion for Attorney Fees. Signed by Magistrate Judge Douglas E. Arpert on 1/28/2014. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SANIA MAHMOOD,

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:
Plaintiff,
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v.
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JOSEPH NARCISO, et al.,
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Defendants.
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_____________________________________ :

Civil Action No.: 09-2656 (DEA)

MEMORANDUM AND ORDER

This matter comes before the Court on Defendants’ Motion pursuant to Fed. R. Civ. P. 54
and 68 for an award of costs incurred after Plaintiff rejected their Offer of Judgment. See docket
entry no. 87.
The factual and procedural history of this matter is well known to the parties.
Nonetheless, the Court provides the following summary. This action arose as a result of a motor
vehicle accident in which Plaintiff was involved on June 12, 2007. Plaintiff filed suit against
Defendants in the Superior Court of New Jersey on May 11, 2009. Defendants removed the
action to this Court on June 2, 2008. Discovery was concluded in March 2011. Substantial
pretrial motion practice followed.
Pursuant a Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, filed
September 16, 2011, this case was referred to this Court “to conduct all proceedings and order
the entry of a final judgment in accordance with 28 USC §636 (c) and Fed. R. Civ. P. 73.” [dkt.
no. 33]
On November 22, 2011, Defendants served an Offer of Judgment pursuant to Fed. R.
Civ. P., in the amount of $250,000.00.

The Final Pretrial Order was entered on August 14, 2012 [dkt. no. 78]. Trial commenced
on August 20, 2012. During the second day of trial, outside of the presence of the jury, Plaintiff
was questioned under oath by her counsel regarding the Defendants’ Offer of Judgment.
Plaintiff testified that she was aware of the offer, acknowledged that her attorney had
recommended acceptance of the offer, understood the risks and consequences of a less favorable
outcome, and unequivocally rejected the offer.
On August 24, 2012, the jury returned a verdict in favor of Plaintiff in the principal
amount of $25,000.00. On September 4, 2012, the Clerk entered the Judgment on the docket
[dkt. no. 86]. The instant Motion was filed on September 11, 2012. Plaintiff’s Notice of Appeal
was filed on November 7, 2012. On December 17, 2013, the United States Court of Appeals for
the Third Circuit affirmed the Judgment “and all other rulings challenged by [Plaintiff]” [dkt. no.
112]. Based on the foregoing, the sole remaining issue to be addressed is Defendants’ Motion
for costs.
Fed. R. Civ. P. 68(d) states, “if the judgment that the offeree finally obtains is not more
favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was
made.” Here, based on the outcome of the trial, Defendants seek to recover the costs incurred for
their experts to prepare for and testify at trial together with their attorneys’ fees for attendance at
trial from August 20 through 24, 2012.
As Defendants correctly point out, “[t]he award of costs is mandatory under the offer of
judgment rule if plaintiff rejects defendant’s offer of judgment and the judgment finally obtained
by plaintiff is not more favorable than the offer and the rule leaves no room for court’s
discretion.” See U.S. v. Trident Seafoods Corp., 92 F. 3d 855, cert. den. 519 U.S. 1109 (1996).

Defendants have submitted the invoices of their medical experts, Thomas K. Bills, M.D.
($7,500.00) and Eric L. Fremed, M.D. ($20,612.00) as well as that of their attorneys
($18,518.30), totaling $46,630.30. Plaintiff has not opposed Defendants’ Motion nor has she
challenged the quantum of the award sought.
Ancillary to Defendants’ Motion, in a letter dated October 12, 2012 [dkt. no. 97],
Plaintiff’s trial counsel maintains that “Plaintiff’s attorney’s claim for costs and expenses trumps
the defendant’s right to offset the judgment by any subsequent claim for fees and costs.”
Specifically, Plaintiff’s counsel seeks to recover his costs from the proceeds of the Judgment
entered in favor of Plaintiff before it is offset against the Defendants’ Offer of Judgment award.
Defendants oppose the request that the Judgment to be paid directly to Plaintiff’s counsel
arguing, “[s]uch a ruling could eliminate the basis for the Offer of Judgment rule.” See
Defendants’ Response filed October 8, 2012 [dkt. no. 96] at page 6. The Court agrees and,
accordingly, the request of Plaintiff’s counsel is denied.
Finally, Defendants request that no post judgment interest be permitted to accrue from the
filing of the instant Motion through the date of this determination. The Court’s determination to
defer resolution of Defendants’ motion while Plaintiff’s appeal was pending should not work to
the detriment of Defendants or the benefit of Plaintiff. Accordingly, post judgment interest is
deemed to have stopped accruing as of October 4, 2012 and through the date hereof.
For the reasons stated, the foregoing is SO ORDERED.
s/ Douglas E. Arpert
DOUGLAS E. ARPERT
UNITED STATES MAGISTRATE JUDGE
DATED: January 28, 2014