Working Girls Design, Inc. v. Evergreen Enterprises, Inc.
Filing
22
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 07/18/14. (kyou, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
WORKING GIRLS DESIGN, INC,
6
L
JUL I 8 2014
u
CLERKl U.S. DISTRICT COURT
RICHMOND, VA
Plaintiff,
CivilAction No. 3:i4-CV-i59
EVERGREEN ENTERPRISES, INC.,
Defendant.
MEMORANDUM OPINION
This matter comes before the Court on Defendant Evergreen Enterprises, Inc.'s
("Evergreen") Motion to Strike Conditional/Qualified Acceptance of Offer ofJudgment (ECF No.
13). For the reasons below, the Court will GRANT the Motion to Strike. Plaintiff Working Girls
Design, Inc's ("Working Girls") Motion for Attorneys' Fees (ECFNo. 11) willbe DENIED AS MOOT.
I.
BACKGROUND
One March 11, 2014, Working Girls filed aneight-count Complaint alleging copyright and
trademark infringement, and unfair competition under 15 U.S.C. § 1125(a). Working Girls
requested declaratory judgment, a permanent injunction, statutory damages, actual damages,
treble damages, statutory attorneys' fees, and further relief as theCourt deems justand proper.
On May 29, 2014, Evergreen offered to allow judgment to be taken against it in the
amount of$100,000.00 on all claims inclusive ofall claimed amounts excepting only costs now
accrued ("Offer"). On June 6, 2014, counsel for the parties conferred as required by Federal Rule
of Civil Procedure 26(f). In discussing the potential for settlement, counsel for Evergreen
expressed that the amount offered under the Offer was sufficient to cover Plaintiffs damages and
its attorneys' fees and otherwise expressed that the Offer amount included attorney's fees.
Plaintiffs counsel did notoffer a contrary view oftheOffer. On June 9, 2014, counsel for Plaintiff
communicated with Evergreen's counsel requesting a payment of$200,000 plus attorney's fees.
1
j
On June n, counsel for Evergreen served an Amended Offer of Judgment upon the Plaintiff,
which stated that Evergreen included attorneys' fees in the $100,000 that was offered under the
original Offer. The same day Plaintiffs counsel confirmed that Evergreen's counsel had
expressed that the Offer amount included attorney's fees. He wrote, "Yes at our meeting you
mentioned that you felt attorney's fees were included in the original offer, which was different
from my reading of the May 29th Offer of Judgment." (Decl. of C. Allen, If 6). On June 12, 2014,
Working Girls filed a Notice of Acceptance with Offer of Judgment ("Notice"). The same day,
Working Girls concurrently filed a Motion forAttorneys' Fees and Costs.
II. ANALYSIS
Federal Rule ofCivil Procedure 68 states, in relevant part, that
At least 14 days before the date setfor trial, a party defending against a claim may
serveon an opposing party an offerto allow judgment on specified terms, with the
costs then accrued. If, within 14 days after being served, the opposing party serves
written notice accepting the offer, either party maythen filethe offerand notice of
acceptance, plus proofofservice. Theclerk must then enter judgment
Fed. R. Civ. P. 68(a). Essentially, the view is that the party accepting an offer of judgment is
considered the "prevailing party" such that an award ofcosts is appropriate under Federal Rule
of Civil Procedure 54(d)(1). See Fed. R. Civ. P. 54(d)(1) ("[C]osts--other than attorneys'
fees—should be allowed to the prevailing party
").
In Bosley v. Mineral County Commission, an offeror challenged a district court's
assessment of costs pursuant to a Rule 68 Offer. 650 F.3d 408, 409-11 (4th Cir. 2011). The
offeror challenged the validity ofan offer for three reasons: "(1) the award ofattorneys' fees and
costs was part ofthe substantive relief sought against them by the amended complaint, and the
offer ofjudgment unambiguously indicated that itcovered all claims contained in the complaint
((as full and complete satisfaction of [the] claim'); (2) refusal so to interpret the offer ofjudgment
will denigrate the aims of Rule 68; and (3) principles of equity." Id. at 412. The Fourth Circuit
held that "[ejvidence extrinsic to the offer's terms should not be considered." Id. at 414 (citing
Chambers v. Manning, 169 F.R.D. 5, 8 (D. Conn. 1996)) (citing cases); seealsoClark v.Sims, 28
F.3d 420, 424 (4th Cir. 1994) (recognizing that settlement discussions do not constitute an offer
of judgment). The Fourth Circuit also stated that ambiguities in an offer are to be resolved
against the offeror. Bosley, 650 F.3d at 414.
Courts have consistently rejected attempts to qualify or revoke accepted offers. See id.
However, preacceptance clarification of an ambiguous Rule 68 offer is desirable in some cases
because it serves the offeror's and the court's interests. Radecki v. Amoco Oil Co., 858 F.2d397,
402-03 (8th Cir. 1988). Specifically, the offeror will be more certain of potential liability and the
Court will not be called on to interpret ambiguous offers. Id.; see also Hefter & Carroll v.
Abraham, No. 07 C 4137, 2007 WL 3334349, at *3 (N.D. 111. Nov. 8, 2007) (holding that a
plaintiff may clarify the terms of an offer before making a decision without running the risk of
prematurely or inadvertently rejecting the offer).
Evergreen's Offer proposed a judgment amount of $100,000.00 "excepting only costs
accrued." However, this case differs from the facts outlined in Bosley because, prior to Working
Girls's acceptance of the Offer, Evergreen notified Working Girls that its intent was to extend an
offer of $100,000 inclusive of attorneys' fees. Thus, Working Girls knew that the Offer was
ambiguous and/or contrary to the intent of Evergreen and there was no agreement. Therefore,
the Noticeof Acceptance (ECF No. 10) will be struck and the case willgo forward.
III. CONCLUSION
For the above reasons, the Court will GRANT the Motion to Strike. Working Girls's
Motion for Attorneys' Fees will be DENIED AS MOOT.
Let the Clerk send a copy of this Memorandum Opinion to all counsel of record. An
appropriate Order shall issue.
/S/
ENTERED this
/ 0
day ofJuly2014.
James R. Spencer
Senior U.S. District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?