Nope. The party seeking fees pursuant to a rejected Rule 68 Offer of Judgment still has the burden of showing a proper offer was made, was served, and was not accepted.
After what appears to have been 3+ years of contentious copyright infringement litigation, Plaintiffs were awarded $1,015.20 in damages against Defendants. Plaintiffs owned copyrights in certain artwork, and Defendants had used this artwork in connection with certain "paint parties." After this damage award, the parties engaged in various motion practice seeking sanctions and costs against each other. The Court summarized the case's posture as follows:
Although this case presented fairly straightforward issues of copyright infringement, the case proceeded in anything but a straightforward manner. The nearly 400 docket entries in this case contain a plethora of motions for extensions of time and modification of deadlines, and other filings before the Court that can be best described as unprofessional and unnecessary squabbling between the parties. The tone of the parties’ papers was so poor, that early in the litigation the Magistrate Judge admonished the parties to “confine their presentations to facts and law that are relevant to the Court’s determination of the issues presented in the parties’ papers. Counsel shall refrain from caustic comments and characterizations of the motive of any party or counsel.” (Doc. 90, pp. 2–3). Unfortunately, this advice went unheeded, and the case dragged on for another three years.
After deciding neither sides' behavior rose to the level warranting sanctions, the Court addressed Defendants' argument that it was entitled to recover its fees and costs because Defendants had allegedly served an Offer of Judgment pursuant to Fed. R. Civ. P. 68 to settle the case for $2,500 -- more than Plaintiffs recovered at trial. Problem is, Defendants did not attach a copy of the offer of judgment that was purportedly served.
Instead, Defendants referenced an "Exhibit 1" in their briefing. But Defendants did not attach an exhibit to the brief. Instead, Defendants filed a brief that exceeded the page limits set by local rules and was admonished by the Court for doing so. (The Court struck a few portions of the brief and refused to consider them in order to bring the brief's page count back into the 25-page limit set by the rules.)
The Court noted that it was not responsible for hunting for the evidence a moving party seeks to use to support its position:
The burden does not fall on this Court to ferret through the ballooned docket in this case to find evidence supporting Bloomington’s claims for fees and costs. By failing to attach a Rule 68 offer to its Motion for fees, or to otherwise direct the Court where to find the document in the record, Bloomington has not carried its burden of establishing it is entitled to fees under Rule 68.
Notwithstanding this admonition, the Court did search through the various docket entries and find something labeled "offer of judgment." But there was not sufficient evidence showing such a document was served in accordance with the rules. As such, the request for fees pursuant to Rule 68 were denied.
The Court then went through an analysis of Plaintiffs' request for recoverable costs, and awarded $4,482.95 as recoverable costs.
Motions for sanctions, denied. Motion for fees, denied. Motion for taxation of costs, granted.
Duncanson v Bloomington, Case No. 6:14-cv-704-PGB-KRS (M.D. Fla. Aug. 23, 2018) (J. Byron)
Woodrow “Woody” Pollack is a partner in the Tampa office of Shutts & Bowen, where he is a member of the Intellectual Property practice group. Woody is Board Certified in Intellectual Property Law by The Florida Bar. He focuses his ...
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