Advanced Topic – Federal Rule of Civil Procedure 68

A few days ago I was approached with a Federal Rule of Civil Procedure 68 (hereinafter “Rule 68”) offer of settlement. The defendants in the case had filed a modest offer in the court.

A Rule 68 offer is an interesting proposition. They are two things you can do when you are the plaintiff and receive such an offer.

Accept: you can call the opposing attorney and notify them you accept their offer and will sign a settlement.

Delcine: you can file a Notice of Opposition to Offer of Settlement in the court, or you can simply ignore the offer as they have a time limit.

The purpose of the Rule 68 is to settle cases so they do not go to trial.

If you are a pro se litigant, there are risks to not accepting this offer of settlement. To understand you first need to read Rule 68:

More than 10 days before the trial begins, 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. If, within 10 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment [….] 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.

What this means is that you could pay the defendant’s legal fees if you do not end the case with a judgement greater than the offer. In consumer cases such as a FDCPA claim, the offer is often the maximum of the statutory damages possible. FDCPA=$1000 per defendant. If you don’t have any actual damages, this offer may well be worth your while. If the offer is more than the statutory damages of your case and you dont allege any actual damages, this offer is better than you are likely to get in a judgement. The example I was shown recently was such a situation and the offer was too good to pass up.

Let me know if you have any questions.

Fight the Good Fight, Boiler

  1. Wow, honestly in those few short paragraphs you made a Civil Procedure rule easy to understand. I now feel like I know a little more about the legal system and maybe even more my rights. Thanks.

  2. Matt,
    Glad this clarified the rule to you. It is a pretty simple rule of civil procedure that you may see in FDCPA, FCRA or TCPA cases like we deal with on this site.
    Please let me know if you have any questions or if I can be of further assistance to you.

  3. Matt hit it right on the head this definition of Civil Procedure68 was so easy to understand and so simple. I look forward to reading more on your blog and finding out how we can help ourselves when legal problem arise.

  4. Nash,

    Thanks for the comment. I tried to write a short description for Rule 68 to inform people. Let me know if there are other rules you would like to examine.

    Thanks, Boiler.

  5. It seems the hazard inherent to a Rule 68 offer cannot be overstated. It’s reportedly become a trendy defensive weapon precisely because it can simultaneously raise the plaintiff’s exposure while lowering that of the defense in the long term.

    I’m afraid the rule citation here is outdated. Time calculation in FRCP was overhauled almost three years ago to eliminate messy disputes over weekends and holidays adjusting time limits and action dates. Now everything is measured in calendar days, which padded out the time periods in Rule 68 from 10 days to 14.

    Revised Deadlines in the Federal Rules of Civil Procedure

    In my recent research I have seen the older ten day version cited a lot, even within sources which should ostensibly know better. My interest in such a minutia was quite personal, as I was recently served an Offer of Judgment and alarmed by the discrepancies seen in casual search engine results. While I keep current PDF copies of federal and state RCP handy, it never hurts to be slightly paranoid about a detail which could cost you four figures and up.

  6. While an OoJ looks sort of like a surrender, it does not mean the defense will exit gracefully. I think discussion of the aftermath of a “68” settlement would be useful, particularly on the taxation of costs. You can chuck a stone blindfolded and hit a case, supposedly ended by a judgment offer, stuck in the mud while the defense throws a whiny tantrum over the plaintiff’s legal bills. The corpo defense lawyers are chafed because a prevailing FDCPA plaintiff fee-shifts everything to the loser, and federal RCP yields to what another law says about fee-shifts anyway. Fortunately the majority opinion is that FDCPA “costs” include the lawyer’s fees.

    What remains maddeningly vague is how a pro se winner should present an accurate set of costs. Without a pinstriper’s bill, the pro se person has obvious court expenses like filing fees and process service. But there may be other losses to a fuel tank, toll booths, parking meters, USPS Certified fees, communications, paid time lost at a job, and so on. A fair Rule 68 offer will include “reasonable costs” for the defendant to absorb, and it is hard to imagine any of the above not being reasonable — compared to a fat legal firm bill — so long as nothing is overclaimed.

    For my present need, however, I have found no clear guide apart from references to certain state laws. It is also not clear that one could argue costs equal actual FDCPA damages when a Rule 68 offer already proposes to match “all relief demanded”. Mainly I’d like to avoid setting a court hearing and going to the mat for a difference of opinion of less than a C-note. But as an incurable bargain hunter I am allergic to paying more than I should for my prosecution costs, however modest.

        • R47,
          I think I was caught up in the information you provided and missed the question.

          I started out only asking for the $350 filing fee in costs. After two lawsuits I started asking for $500. I have never been asked to break that down into specifics but would name postage, parking and such… Also, no one has contested the $500.

          Often, Pro Se people want to get attorney’s fees. To the best of my knowledge this does not happen. If someone knows different please post a federal case #.

          Thanks, Boiler

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