Felders et al v. Bairett

Filing 403

AMENDED MEMORANDUM DECISION AND ORDER-On page 4 the word insufficient was changed to sufficient in the block quote. In Conclusion, the Court is denying 347 Motion for Judgment as a Matter of Law ; denying 354 Motion for Judgment a s a Matter of Law ; denying 354 Motion for New Trial; granting in part and denying in part 358 Motion to Deem Plaintiffs to be the Prevailing Party ; granting 358 Motion to Strike ; denying 360 Motion for Judgment as a Matter of Law ; denying 369 Motion to Alter Judgment; denying 373 Motion to Strike Plaintiffs Motion for Attorney Fees. Deputy Malcoms Objection to Plaintiffs Proposed Judgment on Special Jury Verdict is sustained. 365 . Judgment to be entered by the Clerk of the Court. See Order for further details. Signed by Judge Clark Waddoups on 9/1/16. (jmr)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

AMENDED
MEMORANDUM DECISION
AND ORDER

SHERIDA FELDERS, et al.,
Plaintiffs,
vs.

Case No. 2:08-cv-993 CW
BRIAN BAIRETT, et al.,

Judge Clark Waddoups

Defendants.

INTRODUCTION
This case involves a § 1983 action against Trooper Brian Bairett and Deputy Jeff
Malcom. Following a traffic stop, Sherida Felders and her passengers Elijah Madyun and
DeLarryon Hansend contend the officers improperly searched the vehicle and their
belongings. 1 A jury concluded Trooper Bairett’s conduct was unlawful but Deputy Malcom’s
was not. Now before the court are the parties’ post-trial motions for judgment as a matter of
law and other related matters. The court denies the motions for judgment as a matter of law
and concludes Plaintiffs are entitled to certain attorney fees because Trooper Bairett did not
make a proper Rule 68 offer of judgment.

1

A more detailed background of the case is provided in Felders v. Bairett, 885 F. Supp. 2d
1191 (D. Utah. 2012) and Felders v. Bairett, 755 F.3d 870 (10th Cir. 2014).
1

PROCEDURAL BACKGROUND
Trooper Bairett pulled Sherida Felders over for speeding. He then continued to detain
her for additional questioning and to allow a dog sniff to be conducted of Ms. Felders’ vehicle.
When Deputy Malcom deployed Duke, the dog entered an open passenger door. While inside
the vehicle, Duke alerted to the odor of drugs, but no drugs or drug paraphernalia were found
during an extensive search of the vehicle. Although Duke alerted while inside the vehicle, the
issues before the court were (1) whether Duke alerted before entering the vehicle, thus
establishing probable cause for the search, and (2) whether Trooper Bairett and Deputy
Malcom facilitated Duke’s entry into the vehicle. A jury trial was held on March 23, 2015
through March 27, 2015, during which the jury responded to questions as follows:
1.

“Did Duke alert before he entered the vehicle?”
answered “No.”

The jury

2.

“Did Trooper Bairett by his actions facilitate Duke’s entry into the
vehicle?” The jury answered “Yes.”

3.

Did Trooper Bairett by his actions intend to aid Duke’s entry into
the vehicle?” The jury answered “Yes.”

Special Verdict Form, ¶¶ 1-3 (Dkt. No. 351). Trooper Bairett was therefore found liable for
conducting an unlawful search. In contrast, the jury concluded that Deputy Malcom did not
facilitate Duke’s entry into the vehicle and that he was unaware of Trooper Bairett’s intentional
actions. Id. ¶¶ 4-5. Thus, Deputy Malcom was found not liable.
The jury also answered the following Special Interrogatory: “Did Duke alert as he was
entering the vehicle as opposed to before he leaped into the vehicle.” Id. ¶ 12 (emphasis in
original). The jury answered “Yes.” Id. The interrogatory was submitted due to Deputy
Malcom’s assertion that Duke alerted as he entered the vehicle. Based on the jury’s verdict and
other related matters, the parties filed post-trial motions, which the court addresses below.
2

ANALYSIS
I.

TROOPER BAIRETT’S RENEWED MOTION FOR JUDGMENT AS A
MATTER OF LAW
Trooper Bairett contends he is entitled to judgment as a matter of law based on qualified

immunity. Specifically, he contends there was no constitutional violation because Duke’s alert
as he entered the vehicle established probable cause. Alternatively, Trooper Bairett contends
no clearly established law would have put him “on notice that Duke’s alert ‘as he was entering’
the vehicle did not establish probable cause.” Mem. in Supp. of Mot for Jdmt., at ii (Dkt. No.
360). Before addressing the legal aspects of Trooper Bairett’s argument, the court addresses
the definition of “as he was entering.”
According to Trooper Bairett, “as he was entering” may mean Duke was “entirely
outside the vehicle in the act of leaping, or he may have been mid-air during his leap.” Id. at 4.
The court disagrees with these assertions. The jury found Duke did not alert before he entered
the vehicle. Special Verdict Form, ¶ 1 (Dkt. No. 351). He therefore could not have been
“entirely outside of the vehicle in the act of leaping” because that would have been “before”
Duke entered the vehicle. Moreover, if Duke was “mid-air during his leap,” but still fully
outside of the vehicle, that also would have been “before” entering. “As he was entering”
therefore contemplates Duke was at least partially within the vehicle when he alerted. This fact
is born out by the language of the Special Interrogatory which helped define “as he was
entering” by stating what it was not. “As he was entering” did not include the point in time
“before he leaped into the vehicle.” (Emphasis modified.) It has therefore been factually
established that Duke was at least partially within the vehicle before he alerted.
Turning now to the legal aspects of a lawful search, “[a] drug dog sniff outside a car
3

during a lawful traffic stop is not a search.” Felders, 755 F.3d at 880 (citing Illinois v.
Caballes, 543 U.S. 405, 409 (2005)). When a dog positively alerts during an exterior sniff of a
vehicle, it “is generally enough, by itself, to give officers probable cause to search the vehicle.”
Id. (quotations and citations omitted). At times, a drug dog will spontaneously or instinctively
leap into a car when sniffing for drugs and then positively alert for the first time while in the
vehicle. The Tenth Circuit has concluded such instinctive actions by a dog do “not violate the
Fourth Amendment.” United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989).
“But it is equally well-established that officers cannot rely on a dog’s alert to establish
probable cause if the officers open part of the vehicle so the dog may enter the vehicle or
otherwise facilitate its entry.” Felders, 755 F.3d at 880 (citations omitted). Stating these
distinctions more fully:
[A] trained dog’s alert from areas where the motorist has no
legitimate expectation of privacy – the exterior of the car or the
interior of the car that the motorist has voluntarily exposed to the
dog – provides sufficient probable cause to search the interior.
But where there is evidence that it is not the driver but the
officers who have created the opportunity for a drug dog to go
where the officer himself cannot go, the Fourth Amendment
protects the driver’s right to privacy to the interior compartment
until the dog alerts from the exterior of the car.
Id. (quotations, citations, and alterations omitted).
Trooper Bairett contends the law has only been established about the effects of alerts on
the exterior of a vehicle and alerts in the interior of the vehicle. Because no case has ever
addressed whether an alert establishes probable cause when the alert happens while the dog is
in the act of entering the vehicle (namely, partly in and partly out of the vehicle), he was not on
notice that his subsequent search was unlawful.
Trooper Bairett’s focus on how far Duke entered the vehicle before he alerted is not the
4

relevant point. “[F]acilitating a dog’s entry into a vehicle without first establishing probable
cause constitutes an improper search.” Felders, 755 F.3d at 885 (citing United States v.
Winningham, 140 F.3d 1328, 1330-31 (10th Cir. 1998)).

Thus, unless an exterior alert

occurred, Plaintiffs had a right to privacy of the interior compartment. The jury concluded
there was no exterior alert. Moreover, the jury found Trooper Bairett intentionally facilitated
Duke’s entry into the vehicle by precluding the passengers from closing the car doors. Had
Trooper Bairett not taken such actions, there would have been no door open for Duke to enter
even partially. Duke’s alert while partially inside the vehicle was therefore tainted by Trooper
Bairett’s unlawful facilitation of his entry. Because the law was well-established about the
effects of facilitation at the time of the search, the court denies Trooper Bairett’s motion for
judgment as a matter of law.
II.

PLAINTIFFS’ RENEWED MOTION FOR JUDGMENT AS A MATTER OF
LAW, OR ALTERNATIVELY, FOR A NEW TRIAL
A.

Motion for Judgment under Rule 50(b)

Plaintiffs move for judgment against Deputy Malcom under Rule 50(b). “Judgment as a
matter of law is appropriate only if the evidence points but one way and is susceptible to no
reasonable inferences which may support the nonmoving party’s position.” Elm Ridge Expl.
Co., LLC v. Engle, 721 F.3d 1199, 1216 (10th Cir. 2013) (quotations and citation omitted).
When reviewing the evidence, “the court must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000) (citations omitted).
Here, the traffic stop and subsequent search were recorded by a video cam in Trooper
Bairett’s vehicle. The video showed Deputy Malcom’s deployment and handling of Duke.
Plaintiffs contend the video is so conclusive about Deputy Malcom’s facilitation, that all other
5

related evidence at trial should be disregarded because it lacks credibility. The video provides
some evidence that Deputy Malcom facilitated Duke’s entry into the vehicle. The video is not
so conclusive, however, that it only points one way without being susceptible to another
interpretation. Moreover, Wendell Nope testified as an expert that Deputy Malcom properly
handled Duke during his deployment. The jury also heard testimony that Duke did not like to
jump into vehicles due to his size and as a habit did not do so unless he was following a drug
odor. Finally, Deputy Malcom testified that Duke spontaneously entered into the vehicle
without his prompting, and it is not for the court to weigh his credibility under a Rule 50(b)
motion. Thus, while the video could have supported that Deputy Malcom facilitated Duke’s
entry into the vehicle, the video and other evidence were susceptible to other inferences as well.
Plaintiffs further contend judgment must be entered against Deputy Malcom because
the jury found there was no exterior alert and Deputy Malcom did not stop Duke from entering
the vehicle. Unless Deputy Malcom facilitated Duke’s entry into the vehicle or knew that
Trooper Bairett facilitated Duke’s entry, he was under no obligation to preclude Duke from
instinctually leaping into the vehicle. See United States v. Moore, 795 F.3d 1224, 1232 (10th
Cir. 2015). The jury found in favor of Deputy Malcom on both points.
Nevertheless, Plaintiffs assert Deputy Malcom should not be permitted to assert Duke
spontaneously entered the vehicle because that defense was never asserted until trial. The court
disagrees. Deputy Malcom was interviewed about the search on January 6, 2009, before he
was named as a party to this litigation. During that interview, Deputy Malcom told the
investigator that Duke “started the sniff out, started on the back passenger side, I believe, just
went in.” Audio CD of Interview (Dkt. Nos. 56-2 and 120) (emphasis added). Additionally, in
a January 14, 2011 affidavit, Deputy Malcom attested that Duke “spontaneously jumped inside
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the rear door of Ms. Felders’ vehicle.” Malcom Aff’d, ¶ 21 (Dkt. No. 115). Plaintiffs therefore
had notice that Deputy Malcom was asserting Duke spontaneously entered the vehicle without
his prompting or facilitation. At trial, Deputy Malcom did not have to use specific terms of art
such as “spontaneous” or “instinctual” entry to show Duke entered on his own.

Absent

facilitation by Deputy Malcom, this is implied. Accordingly, Plaintiffs are not entitled to
judgment as a matter of law against Deputy Malcom.
B.

Motion for New Trial Under Rule 59(a)

In the alternative, Plaintiffs move for a new trial under Rule 59(a) on the basis that the
jury verdict is internally inconsistent. It is the court’s obligation to “reconcile the jury’s
findings, by exegesis if necessary,” while remaining true to the jury’s factual findings. Johnson
v. ABLT Trucking Co., 412 F.3d 1138, 1144 (10th Cir. 2005) (quotations and citations omitted).
A new trial may only be granted if a court cannot reconcile a jury’s answers.

“To be

irreconcilably inconsistent, the jury’s answers must be logically incompatible, thereby
indicating that the jury was confused or abused its power.”

Id. (quotations and citation

omitted). “A jury’s verdict may not be overturned merely because the reviewing court finds the
jury’s resolution of different questions in the case difficult, though not impossible, to square.”
Id. (citation omitted).
Plaintiffs contend the jury verdict is inconsistent because the jury found there was no
exterior alert, even though Deputy Malcom testified there was an exterior alert, yet the jury also
found that Deputy Malcom was not liable for Duke’s entry into the car. First, a jury may
choose to credit part of a person’s testimony and discredit another portion, as long as there is
sufficient evidence to support the jury’s conclusion. Additionally, the jury’s conclusions that
Duke did not alert on the exterior, but did alert as he was entering the vehicle, are consistent
7

because the one answer pertained to Duke being fully outside the vehicle and the other answer
pertained to Duke being partially within the vehicle.
Finally, as stated above, Duke could enter the car, without liability attaching to Deputy
Malcom, as long as Deputy Malcom did not facilitate Duke’s entry and did not know that
Trooper Bairett had done so. 2 The jury’s verdict is consistent that Deputy Malcom did not
facilitate entry and that he did not know Trooper Bairett did. The court therefore denies
Plaintiffs’ motion for a new trial under Rule 59(a).
III.

PLAINTIFFS’ RULE 59(e) MOTION TO ALTER OR AMEND THE
JUDGMENT
Plaintiffs next contend the jury’s verdict should be construed in a manner to effectuate

justice pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, which allows a court to
alter a judgment to “prevent manifest injustice.” FTC v. Chapman, 714 F.3d 1211, 1219 (10th
Cir. 2013) (quotations and citation omitted). Specifically, Plaintiffs assert “[Deputy] Malcom
must be found liable for permitting his dog to enter the vehicle prior to a positive alert from the
exterior of the vehicle.” Mem. in Supp. of Mot., at 3 (Dkt. No. 369). Plaintiffs base their
assertion on the fact that Deputy Malcom said Duke alerted on the exterior of the vehicle, but
the jury rejected that assertion. Moreover, as a trained dog handler, Plaintiffs assert Deputy
Malcom should have known it was impermissible to allow Duke to enter the vehicle.
Again, however, a dog’s entry into a vehicle is permissible as long as an officer did not
2

The question of whether Deputy Malcom was personally liable under § 1983 is based on a
civil statute. Under a civil statute, the unlawful conduct of one officer is not imputed to
another. Rather each person’s conduct is evaluated to determine individual liability. In
contrast, if Duke’s entry had arisen in a criminal matter, the question would have been whether
Trooper Bairett’s improper facilitation so tainted the search as to warrant suppression of
evidence regardless of Deputy Malcom’s actions. Notably, however, the latter issue never
arose because the thorough search did not yield any evidence of criminal activity.
8

facilitate that dog’s entry. The jury found Deputy Malcom did not facilitate Duke’s entry, nor
did he know that Trooper Bairett did. Thus, even as a dog handler, Deputy Malcom had no
obligation to preclude Duke from entering the vehicle and such entry was not illegal with
respect to Deputy Malcom. The court therefore denies Plaintiffs’ Rule 59(e) motion.
IV.

PLAINTIFFS’ MOTION TO BE DEEMED THE PREVAILING PARTIES AND
TO STRIKE ALLEGED OFFER OF JUDGMENT
A.

Motion re Prevailing Party Determination

Plaintiffs contend they should be deemed the prevailing parties against both Trooper
Bairett and Deputy Malcom. Under 42 U.S.C. § 1988, the court “may allow the prevailing
party . . . a reasonable attorney’s fee as part of the costs.” The Supreme Court has stated
“plaintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed
on any significant issue in litigation which achieves some of the benefit the parties sought in
bringing suit.” Farrar v. Hobby, Jr., 506 U.S. 103, 109 (1992) (quotations and citations
omitted). This means a “plaintiff must obtain at least some relief on the merits of his claim,”
such that the plaintiff “obtain[s] an enforceable judgment against the defendant from whom
fees are sought.” Id. at 111 (citations omitted). The court has held even nominal damages meet
this requirement because “the prevailing party inquiry does not turn on the magnitude of the
relief obtained.” Id. at 114.
With respect to Trooper Bairett, the jury found him liable for an unconstitutional search
and awarded Ms. Felders $15,000 in damages and both of her passengers nominal damages.
Such damages will be enforceable through a judgment.

Moreover, the court has denied

Trooper Bairett’s Motion for Judgment as a Matter of Law. The court therefore concludes
Plaintiffs are the prevailing parties against Trooper Bairett.
In contrast, the jury found Deputy Malcom was not liable. Plaintiffs were awarded no
9

damages for any of his conduct and they have no enforceable judgment against him.
Additionally, the court has denied Plaintiffs’ Motion for Judgment as a Matter of Law and
Motion for a New Trial as it pertains to Deputy Malcom. It also has denied Plaintiffs’ Rule
59(e) Motion to Alter or Amend the Judgment. Thus, even though the jury did not credit
Deputy Malcom’s testimony that Duke alerted on the exterior of the vehicle, he prevailed
against Plaintiffs’ claim that his conduct was unlawful. The court therefore denies Plaintiffs’
motion to deem them the prevailing parties against Deputy Malcom.
B.

Motion re Offer of Judgment

Although Plaintiffs have been deemed the prevailing parties against Trooper Bairett, an
issue exists about whether Trooper Bairett made a formal offer of judgment. Rule 68 states,
“[a]t least 14 days before the date set for trial, a party defending against a claim may serve on
an opposing party an offer to allow judgment on specified terms, with the costs then accrued.”
Fed. R. Civ. P. 68(a) (2016). Then, “[i]f 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.” Id. at 68(d). Moreover, “the Supreme Court [has] held that a prevailing civil rights
plaintiff, who recovers an amount less than the defendant’s Rule 68 offer of judgment, cannot
recover his post-offer attorney’s fees pursuant to 42 U.S.C. § 1988.” Crossman v. Marcoccio,
806 F.2d 329, 333 (1st Cir. 1986) (citing Marek v. Chesny, 473 U.S. 1 (1985)).
In this case, Trooper Bairett made an offer to settle the case on February 26, 2009. He
offered for judgment to be taken against him in the amount of $20,000 for Ms. Felders and
$2,500 for each of her passengers. Offer, at 1-2 (Dkt. No. 358-3). At trial, Ms. Felders only
recovered $15,000 and her passengers only recovered nominal damages of $1.00 each. Thus,
Plaintiffs’ judgment against Trooper Bairett was not more favorable than his offer.
10

Plaintiffs contend, however, that Trooper Bairett’s offer was an offer of compromise
and not an offer of judgment. Plaintiffs filed their Complaint on December 29, 2008, but they
did not serve Trooper Bairett. Instead, the parties entered into settlement discussions, resulting
in the February 26, 2009 offer. After the offer expired, Plaintiffs still had to proceed with
service. They obtained a Summons for Trooper Bairett on April 20, 2009. That Summons
went unserved because Trooper Bairett waived service of process on May 8, 2009. He then
filed an Answer on June 24, 2009. Because Trooper Bairett made his offer after the complaint
was filed, but before he was served, the issue before the court is whether his offer was an offer
of compromise or an offer of judgment.
Courts have stated “a Rule 68 offer of judgment must be made after the legal action has
been commenced. Offers of compromise made before suit is filed do not fall within the rule.”
Clark v. Sims, 28 F.3d 420, 424 (4th Cir. 1994) (citing Cox v. Brookshire Grocery Co., 919
F.2d 354, 358 (5th Cir. 1990); 12 Charles A. Wright & Arthur R. Miller, Federal Practice &
Procedure: Civil § 3003 (1973)). Trooper Bairett contends his offer met the requirement
because it was made after suit was commenced. None of the cases cited by Trooper Bairett,
however, address the precise issue of whether a person meets the definition of a “party
defending against a claim” before he has been served.
Two cases cited by Trooper Bairett involved defendants who had been served and were
within the jurisdictional power of the court at the time the Rule 68 offer was made. See Roska
v. Sneddon, 366 Fed. Appx. 930, 931-32 (10th Cir. 2010) (stating the Complaint was filed in
October 1999 and the first offer of judgment was made on June 26, 2000); Crossman, 806 F.2d
at 330 (stating “the named defendants answered the complaint and, in accordance with Fed. R.
Civ. P. 68, simultaneously filed with the court an offer of judgment”) (emphasis added).
11

Two other cases cited by Trooper Bairett involved settlement offers that were made
before a complaint was filed. Clark, 28 F.3d at 424 (finding an offer was invalid under Rule 68
because it was made before the plaintiffs filed their complaint); Cox, 919 F.2d at 358 (citations
omitted) (same). Those cases, therefore, did not focus on the question before the court.
Trooper Bairett also addressed one other case, which held that an offer made within an
Answer does not constitute a Rule 68 offer. The case reiterates the same statements discussed
above: “an offer to compromise is an offer before commencement of the action under Rule 3;
an offer of judgment is an offer after the commencement of the action as provided in Rule 3.”
Maguire v. Fed. Crop Ins. Corp., 9 F.R.D. 240, 242 (W.D. La. 1949) (emphasis in original),
rev’d in part on other grounds, 181 F.2d 320, 321 (5th Cir. 1950). Notably, however, the case
also states:
It would seem that under that Rule (first sentence)—“a party
defending against a claim”—could only be a party who has been
made a defendant by service of process and citation under Rules 4
and 5; and it is only when a party is a defendant as such and within
ten days before trial that an offer of judgment contemplated by
Rule 68 may be timely served as provided by Rule 5.
Id. (citation omitted) (emphasis added). Read in context, the case stands for the proposition
that mere commencement of a suit is not enough. A person must be brought within the
jurisdiction of the court before he constitutes “a party defending against a claim.” The court
finds the latter reasoning persuasive.
If a person drafts a complaint and gives it to the named defendant, but does not file it
with the court, the complaint has no legal effect. It is merely a discussion piece between the
parties. Thus, the cases cited above state that any offer of settlement before the suit is filed
does not constitute a Rule 68 offer. Similarly, if a person drafts a complaint, files it with the
court, yet does not properly serve it, the complaint again has no legal effect against the named
12

defendant. Cooper v. Wade, No. 94-3262, 1995 U.S. App. LEXIS 147, at *3 (10th Cir. Jan. 6,
1995) (stating if a person has not been served, “he is not a party to the litigation and cannot be
held liable”). If no other action were taken by the plaintiff, the court would dismiss the suit
without the named defendant ever becoming an actual participant in the case before the court.
It is not until a suit has been commenced and a person has been served or waived service that
the law recognizes the person as “a party defending against a claim.” Only then does the court
have authority to take action against that person.
This interpretation of a “defending party” harmonizes with another requirement of Rule
68. It requires a Rule 68 offer to allow judgment to be taken against the defendant, and as soon
as notice of acceptance is filed, for the clerk to enter judgment. If a person is not a party, and
the court has no jurisdiction over him, the mandate to enter judgment upon notice of
acceptance of the offer cannot be fulfilled.

Thus, the language of Rule 68 appears to

contemplate both that suit has been commenced and that a defendant has been served or
otherwise waived service.
Trooper Bairett contends such a construction would encourage plaintiffs to file a
complaint, withhold service, run up litigation costs, and only then consider a Rule 68 offer.
Were a defendant unable to waive service and file a notice of appearance, Trooper Bairett’s
contention may have merit. Nothing, however, precludes a named defendant from immediately
waiving service once he becomes aware a complaint has been filed.

The waiver would

constitute an acknowledgment that he is within the jurisdiction of the court and required to
defend. With his legal rights now being at issue, the defendant can make an offer of judgment
in an effort to resolve the matter.
The court is mindful “that the underlying purpose of Rule 68 is to encourage settlement
13

of disputes and avoid protracted litigation.” Crossman, 806 F.2d at 332 (citations omitted).
Moreover, it is apparent Trooper Bairett attempted to accomplish that purpose by making a
reasonable offer of settlement. Based on the specific requirements of Rule 68, however, the
court concludes that Trooper Bairett’s offer was one of compromise and not one of judgment
under Rule 68.
V.

PLAINTIFFS’ MOTION FOR ATTORNEY FEES AND COSTS AND TROOPER
BAIRETT’S MOTION TO STRIKE PLAINTIFFS’ MOTION
Plaintiffs filed a Motion for Attorney Fees and Costs. Because the motion was filed

before judgment has been entered, Trooper Bairett has moved to strike the motion. He also has
requested that if his motion is not granted, he be afforded a reasonable period of time to
respond to Plaintiffs’ motion. The court has concluded that a Rule 68 offer of judgment was
not made. Consequently, attorney fees and costs under 42 U.S.C. § 1988 are not barred and
such a motion will otherwise have to be heard. The court therefore denies the motion to strike,
but grants Trooper Bairett’s request that he be given leave to file an opposition memorandum.
In turn, Plaintiffs are granted leave to file a reply memorandum.
The parties’ briefing should address the motion in light of the court’s other rulings
within this memorandum. This includes addressing whether the rulings with respect to Deputy
Malcom should impact the attorney fee amount.

Additionally, the court is aware that a

reasonable offer of settlement was made early in the case. The court is further aware that case
law had not addressed the nuance of offers made after a case is filed, but before a defendant is
served. The court therefore requests that the parties address how these factors should be
balanced with other relevant factors, and provide citation to supporting law for any positions
that are taken. Trooper Bairett’s opposition brief shall be filed on or before September 16,
2016. Plaintiffs’ reply brief shall be filed on or before September 30, 2016.
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VI.

DEPUTY MALCOM’S
JUDGMENT

OBJECTION

TO

PLAINTIFFS’

PROPOSED

Plaintiffs sent Deputy Malcom a proposed judgment that states Deputy Malcom is liable
for damages and required to pay attorney fees and costs. Deputy Malcom filed an Objection to
it because it did not conform to the jury’s verdict. Based on the court’s rulings above in favor
of Deputy Malcom, the court sustains the Objection.
CONCLUSION
For the reasons stated above:
1.

Trooper Bairett’s Motion for Judgment (Dkt. No. 347) and Renewed Motion for

Judgment as a Matter of Law are DENIED. (Dkt. No. 360).
2.

Plaintiffs’ Motion for Judgment as a Matter of Law against Deputy Malcom and

also Plaintiffs’ alternative Motion for a New Trial are DENIED. (Dkt. No. 354).
3.

Plaintiffs’ Rule 59(e) Motion to Alter or Amend the Judgment is DENIED.

(Dkt. No. 369).
4.

Plaintiffs’ Motion to Deem Plaintiffs to be the Prevailing Party is GRANTED

IN PART and DENIED IN PART. (Dkt. No. 358). The court GRANTS the motion with
respect to Trooper Bairett. The court DENIES the motion with respect to Deputy Malcom.
5.

Plaintiffs’ Motion to Strike or Deem Ineffective Trooper Bairett’s Alleged

“Offer of Judgment” is GRANTED. (Dkt. No. 358).
6.

Trooper Bairett’s Motion to Strike Plaintiffs’ Motion for Attorney Fees is

DENIED. (Dkt. No. 373). He is granted leave to file an opposition to Plaintiffs’ Motion for
Attorney Fees and Enhanced Fees and Costs. The opposition brief shall be filed on or before
September 16, 2016. Plaintiffs’ reply brief shall be filed on or before September 30, 2016.

15

7.

Deputy Malcom’s Objection to Plaintiffs’ Proposed Judgment on Special Jury

Verdict is SUSTAINED. (Dkt. No. 365).
The Clerk of Court is directed to enter judgment in conformance with the jury’s verdict,
which finds Trooper Bairett liable and Deputy Malcom not liable. The Clerk of Court is further
directed to enter judgment that Plaintiffs are the prevailing party against Trooper Bairett for
purposes of attorney fees and costs.
DATED this 1st day of September, 2016.
BY THE COURT:

________________________________________
Clark Waddoups
United States District Judge

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