Madsen v. Jacoby ( 2024 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA JOHN MADSEN, et al., Plaintiffs, Case No. 3:21-cv-00123-JMK vs. ORDER REGARDING POST- RUSSELL LEE JACOBY, et al., VERDICT MOTIONS Defendants. Pending before the Court are several post-verdict motions. At Dockets 107 and 108 the parties filed cross-motions for attorney’s fees. At Docket 111 Defendants filed a renewed motion for judgment as a matter of law, and at Docket 112 they filed a motion requesting a new trial. The Court first will address Dockets 111 and 112, and then will address the competing motions for attorney’s fees. As set forth below, Defendants’ Motions are DENIED. Plaintiffs’ Motion for Attorney’s Fees is GRANTED IN PART and DENIED IN PART. I. BACKGROUND A. Pre-October 9, 2020 Stephen Lake Lodge (“the Lodge”) is a remote lodge accessible by bush plane which provides access to world class hunting and fishing.1 In approximately 2001, John Madsen visited the Lodge as a customer and paid for a guided hunt.2 Subsequently, in 2012, Mr. Madsen and his business partner, Geoffrey Rubin, purchased the Lodge.3 In 2015, Mr. Madsen bought out Mr. Rubin’s interest in the Lodge.4 Mr. Madsen operated the lodge as a profitable outfitting business.5 As an outfitter, Mr. Madsen would book the hunts, but did not go out into the bush with customers.6 Instead, customers would be assisted in their hunts by licensed guides.7 Mr. Madsen worked closely with one registered guide, Nick Pierskalla, and a team of licensed guides who worked underneath Mr. Pierskalla.8 The guides, including Mr. Pierskalla, were independent contractors.9 For business reasons, the Lodge and the outfitting business were separated into different limited liability companies.10 Stephan Lake Holdings LLC (“SLH”) owned the real property, including the Lodge, and Stephan Lake Adventures LLC (“SLA”) was the outfitting business.11 1 Docket 126 at 8. 2 Id. at 7. 3 Id. at 9. 4 Id. at 11. 5 Id. at 11–13. 6 Id. at 13–14. 7 Id. 8 Id. at 10–11, 20–21. 9 Id. at 4. 10 Docket 127 at 14–15. 11 Id. At some point, Mr. Madsen became interested in selling the Lodge because he wanted to distance himself from the demands of running SLA.12 In the spring of 2020, Mr. Madsen and Defendants began negotiations to sell the Lodge.13 From the beginning of those negotiations, Mr. Madsen intended to retain an ownership interest in SLH so he could recreate at the Lodge.14 Defendants operate an outfitting business in Arizona where they guide hunts.15 Defendants’ Arizona operation benefits from many repeat customers.16 Defendants’ Arizona operation also depends heavily on social media.17 In contemplating the purchase of SLA/SLH, Defendants intended to follow their Arizona business model and market the Lodge through social media as well as to customers who previously had visited.18 After the parties had negotiated the basic terms that ultimately would be finalized, Defendants traveled to Alaska to perform a due diligence trip.19 Defendants incurred various expenses, such as air fare, lodging, and hunt permits, while performing their due diligence trip.20 The due diligence trip took place from August 21, 2020, through September 2, 2020, overlapping with the moose hunt in Alaska.21 The due diligence trip 12 Docket 126 at 13. 13 Docket 128 at 35. 14 Docket 127 at 8–9. 15 Docket 128 at 11–13. 16 Id. at 12–13. 17 Id. at 24–25. 18 Id. at 25–26. 19 Id. at 15–16. 20 Id. at 17. 21 Docket 126 at 19. was important, not only for Defendants to see the Lodge, but also to develop a relationship with Mr. Pierskalla.22 B. October 2020 through December 18, 2020 On October 9, 2020, the parties signed a contract titled “Agreement for Purchase, Sale and Assignment of Membership Interests”23 (the “Sale Contract”). The Sale Contract provided a purchase price of $1,500,000.00 for the sale of Mr. Madsen’s entire interest in SLA, as well as 95 percent of Mr. Madsen’s interest in SLH.24 The Sale Contract structured some of the payments from Defendants to Mr. Madsen based on the underlying debt Mr. Madsen owed to Mr. Rubin which encumbered the real property SLH owned.25 The Sale Contract required Plaintiffs to provide Defendants with “[e]xisting client list for SLA and SLH for all past clients.”26 The Sale Contract also required SLA retain all marketing materials, including social media accounts for Defendants’ benefit.27 Mr. Madsen did not keep a running list of clients who visited the Lodge.28 Instead, Mr. Madsen provided Defendants with hunt records that Mr. Pierskalla had available, dating back to 2019.29 Mr. Madsen told Defendants they could obtain hunt records prior to 2019 by contacting the Alaska Department of Fish and Game.30 22 Id. at 21. 23 Docket 110-1. 24 Id. at 3. 25 Id. at 4. 26 Id. at 6. 27 Id. at 9. 28 Docket 126 at 22–25. 29 Id. 30 Id. at 26. Mr. Madsen did not maintain social media accounts for the Lodge and did not have access to the Lodge’s Facebook account.31 From mid-October through mid-December 2020, Defendants acted as owners of the Lodge.32 During this time, Defendants did not travel to the Lodge or personally occupy it, but instead arranged for Mr. Patrick Schille to look after it.33 In October 2020, Defendants communicated with Mr. Pierskalla regarding available hunts near the Lodge, as well as appropriate wages for guides.34 Subsequently, on December 7, 2020, Mr. Pierskalla messaged Defendants expressing frustration that Defendants had been looking for another registered guide.35 Mr. Pierskalla explained that he had been waiting for Defendants to make him an offer for pre-season consulting services and that he would not be providing any more assistance until his employment and compensation details were ironed out.36 In early December 2020, Defendants called Mr. Madsen and recorded the conversation, without Mr. Madsen’s knowledge.37 On the recorded phone call, Defendants again asked Mr. Madsen about the client list required by the Sale Contract and expressed disappointment that the list only contained hunt logs.38 On that same phone call, Defendants also asked about social media, websites, and marketing; Mr. Madsen indicated 31 Docket 127 at 11–12. 32 Docket 129 at 26–28. 33 Id. 34 Docket 122-2 at 15. 35 Id. at 20. 36 Id. at 20–21. 37 Docket 129 at 35. 38 Docket 128 at 28–31. he did not have access to any social media or marketing for the Lodge.39 On December 14, 2020, Defendants terminated the Sale Contract and indicated they would vacate the Lodge by December 18, 2020, and would not make any future payments.40 Defendants asked their agent, Mr. Schille, to take a video to document the condition of the premises before he departed from the Lodge.41 C. Late December 2020 through Spring 2021 Mr. Stephen Hastings had worked with Mr. Madsen since 2018 and transported clients out to the Lodge.42 In December 2020, Mr. Hastings was checking on his own remote cabin, which is in the vicinity of the Lodge.43 During this time, he flew over the Lodge and observed an aircraft on the landing strip near the Lodge in the process of loading propane canisters.44 Sometime in late December, Mr. Madsen asked Mr. Hastings to check on the Lodge because Defendants “had essentially abandoned it.”45 Mr. Hastings observed that trash, food, extension cords and generators all had been left out.46 Mr. Hastings reported his observations to Mr. Madsen.47 Mr. Madsen asked Mr. Hastings to return and clean up the Lodge.48 Mr. Hastings returned in a small aircraft and attempted to pack the snow on 39 Id. at 31–32. 40 Id. at 33; Docket 129 at 14. 41 Docket 129 at 13–15. 42 Docket 128 at 2. 43 Id. at 10. 44 Id. 45 Id. at 3–4. 46 Id. at 4. 47 Id. at 5. 48 Id. the runway which would allow for a larger aircraft to land.49 Mr. Hastings was unable to pack the airstrip because the machine used to do so was not functional.50 Mr. Hastings observed the machine in working condition several months earlier when he helped winterize the Lodge.51 Mr. Hastings also noticed a four wheeler was left in a state of disrepair at the Lodge.52 As was the case with the other machine, Mr. Hastings had used the four wheeler in the fall of 2020 and experienced no issues with it at that time.53 When Mr. Madsen took back possession of the Lodge from Defendants, many of the consumables had been used and not restocked.54 This included several 500- gallon gasoline tanks, a 1,000-gallon generator tank, a 300-gallon tank for the water heater, a 250-gallon fuel tank for the boats, and a handful of small gas cans. There also were roughly 25 propane canisters weighing between 40 and 100 pounds that were removed from the Lodge and not returned.55 D. Legal Proceedings In February 2021, Plaintiffs filed suit against Defendants in the Superior Court for the State of Alaska.56 In May 2021, Defendants removed the case to the U.S. District Court for the District of Alaska.57 On September 28, 2022, Plaintiffs sent an Offer 49 Id. at 5–6. 50 Id. at 6–7. 51 Id. at 7. 52 Id. at 8. 53 Id. at 8–9. 54 Docket 126 at 28–30. 55 Id. at 30. 56 Docket 1-1. 57 Docket 1. of Judgment to Defendants.58 The Offer of Judgment would have awarded $125,000.00 to Defendants and resolved the case in its entirety. 59 Defendants did not accept the Offer of Judgment, and the case proceeded to trial. At Docket 68, Defendants filed their Final Witness List, which included Mr. Schille. On the morning of the first day of trial, Defendants requested Mr. Schille be permitted to testify telephonically because “there’s a lot of flooding. And for him to be able to get here, he would have to do a lot of things, including going down a river, hiking nine miles and then maybe getting a bush plane.”60 Plaintiffs opposed Mr. Schille participating telephonically, and asked the Court to hear from Mr. Schille directly before making a final decision.61 Plaintiffs noted that no affidavit to support their assertion was attached to Defendants’ Motion at Docket 93.62 The Court inquired about the testimony Defendants intended to elicit from Mr. Schille and Defendants answered that Mr. Schille would be testifying about the videos he took of the Lodge at the time possession of the Lodge went from Defendants to Mr. Madsen.63 When Mr. Schille called in telephonically, the Court asked why he was unable to testify in person.64 Mr. Schille said nothing of adverse flooding conditions, only that the trip would be inconvenient for him, but noted that if one Defendant drove from Anchorage to Talkeetna to pick him up he would be able 58 Docket 107-1. 59 Id. 60 Docket 125 at 6. 61 Docket 126 at 2–3. 62 Id. 63 Docket 127 at 4. 64 Id. at 5. to testify in person.65 Accordingly, the Court denied Defendants’ request for Mr. Schille to testify telephonically.66 Mr. Schille was not called as a witness.67 Defendant Shawn Morrison authenticated that videos recorded by Mr. Schille were true and accurate representations of the Lodge based on his personal knowledge, and articulated that the videos were taken by Mr. Schille at his request.68 Over an objection by Plaintiffs, the Court allowed the videos to be entered into evidence and instructed the jury that the videos were only relevant if the jury found that Mr. Schille recorded the videos in accordance with Mr. Morrison’s instructions.69 On cross examination, Plaintiffs pointed out that Mr. Morrison did not have personal knowledge of when the videos were recorded.70 At Docket 81, the Court directed the parties to file proposed special verdict forms by July 13, 2023. At Docket 90, Defendants objected to the use of a special verdict form. The Court commented that “there are a lot of confusing aspects as to this case, both the claims, counterclaims, and affirmative defenses.”71 On the first day of trial it was not clear to the Court whether Defendants were raising misrepresentation as an affirmative defense, a separate tort claim, or both.72 The Court decided to employ a special verdict form to provide the jury with a framework upon which to make its determination.73 65 Id. at 5–6. 66 Id. at 6. 67 Docket 101. 68 Docket 129 at 9–17. 69 Id. at 17–19. 70 Docket 132 at 4–8. 71 Docket 125 at 3. 72 Id. at 8–9. 73 Id. at 4. On the second day of trial, the Court further discussed with the parties the difference between the affirmative defense of misrepresentation and the tort of misrepresentation.74 Specifically, Plaintiffs explained that the jury instruction regarding the affirmative defense of misrepresentation should come before the instruction regarding the tort of misrepresentation.75 Plaintiffs took this position because, if the jury found that the affirmative defense was applicable, there should be an instruction regarding ratification, because ratification only applies to the affirmative defense and not to stand-alone tort claims.76 Defendants argued that the special verdict form should prompt the jury to consider the tort of misrepresentation, even if they found in Defendants’ favor for the affirmative defense of misrepresentation.77 Defendants explained that application of the affirmative defense would limit Defendants’ damages to the value of deposit of the Sale Contract while proving the tort of misrepresentation would permit recovery of earlier costs incurred by Defendants in preparing to enter the Sale Contract, such as costs associated with the due diligence trip.78 On the morning of the fifth day of trial, the Court discussed several modifications the parties had requested to the Jury Packet.79 After incorporating the requested modifications, the Court explained that the Jury Packet would be finalized later that day and that counsel for both parties would have a chance to review and “put on the 74 Docket 126 at 31–32. 75 Id. at 32. 76 Id. 77 Id. at 33–35. 78 Id. at 34. 79 Docket 129 at 2–5. record any objections that they might have to that final packet.”80 After the parties reviewed the finalized Jury Packet, the Court asked Defendants if they had “any issues with the final jury packet that need to be discussed.”81 Counsel for Defendants responded they did not have any issues with the finalized Jury Packet, including the special verdict form.82 During closing arguments, Defendants asked the jury to fill out the special verdict form by answering “no” to question one and then skipping questions two through five, and answer question six.83 On July 25, 2023, the jury reached a verdict.84 Before ushering the jury into the courtroom, the Court met with the parties to discuss the procedure for reading the verdict.85 Counsel for Defendants, appearing virtually,86 indicated he had no problem with the normal procedure outlined by the Court.87 The jury was ushered into the courtroom, the Court received the unanimous verdict and read it into the record.88 The jury found that Defendants did not breach the Sale Contract, but that Defendants did breach the covenant of good faith and fair dealing, and awarded one dollar to Plaintiffs.89 The jury further 80 Id. at 5. 81 Docket 132 at 13. 82 Id. 83 Docket 129 at 43–45. 84 Docket 100-4; Docket 105. 85 Docket 131 at 2–3. 86 Counsel for Defendants requested permission to give closing arguments immediately after the close of evidence. Plaintiffs agreed to the unorthodox procedure and the Court granted Defendants’ request. Counsel for Defendants gave closing argument on day five of trial, and then left the District of Alaska. On day six of trial, Plaintiffs gave closing arguments. See Docket 129 at 22–24; Docket 130 at 1–3. 87 Docket 131 at 3. 88 Id. at 4. 89 Docket 105 at ¶¶ 1, 6–7. found that Plaintiffs had not made intentional misrepresentations to Defendants, but that they had made negligent misrepresentations to Defendants, and awarded one dollar to Defendants.90 The Court then asked both parties if they wanted the jury polled, to which the parties responded they did not.91 Subsequently, the Court asked each party if there was anything that needed to be addressed.92 Counsel for Defendants stated, “Not at the moment, Your Honor. I have a feeling there may be some motions filed at later date on our account.”93 Both sides filed motions seeking attorney’s fees and costs under a provision in the Sale Contract. Defendants also filed motions seeking judgment as a matter of law pursuant to Federal Rule of Civil Procedure (“FRCP”) 50 and a new trial pursuant to FRCP 59. II. LEGAL STANDARD A. FRCP 50 FRCP 50(a) provides that “[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may,” grant a motion for judgment as a matter of law (“JMOL”).94 If a court does not grant the moving party’s JMOL, the moving party may renew its motion after trial pursuant to FRCP 50(b).95 The 90 Id. at ¶¶ 12, 14–15. 91 Docket 131 at 6. 92 Id. 93 Id. 94 Fed. R. Civ. P. 50(a). 95 Fed. R. Civ. P. 50(b). standard for JMOL “‘mirrors’ the summary judgment standard,”96 meaning that “[t]he district court may not weigh evidence or make credibility determinations,”97 and must “view the evidence in the light most favorable to the nonmoving party [] draw[ing] all reasonable inferences in that party’s favor.”98 “A jury’s verdict must be upheld if it is supported by evidence adequate to support the jury’s conclusion, even if it is also possible to draw a contrary conclusion.”99 JMOL is inappropriate unless the “evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict.”100 B. FRCP 59 Under FRCP 59, a court may grant a motion for a new jury trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.”101 While FRCP 59 does not enumerate the grounds on which a new trial may be granted, courts are “bound by those grounds that have been historically recognized.”102 “Historically recognized grounds include, but are not limited to, claims that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other 96 Reed v. Lieurance, 863 F.3d 1196, 1204 (9th Cir. 2017) (internal quotation marks omitted) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, (2000)). 97 Dees v. Cnty. of San Diego, 960 F.3d 1145, 1151 (9th Cir. 2020) (quoting E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009)). 98 Id. (quoting Go Daddy Software, Inc., 581 F.3d at 961). 99 Bridge Aina Le’a, LLC v. Land Use Comm’n, 950 F.3d 610, 624 (9th Cir. 2020) (quoting Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)). 100 Id. (quoting Castro v. County of Los Angeles, 833 F.3d 1060, 1066 (9th Cir. 2016) (en banc)). 101 Fed. R. Civ. P. 59(a)(1)(A). 102 Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003)). reasons, the trial was not fair to the party moving.”103 Courts considering a motion for new trial may “weigh the evidence and assess the credibility of witnesses.”104 If a verdict is “contrary to the clear weight of the evidence,” a district court should set aside the verdict and grant a motion for new trial.105 III. DISCUSSION A. Defendants’ Renewed Motion for JMOL Defendants argue that “[n]o evidence or arguments concerning the breach of implied good faith and fair dealing was ever submitted to the jury” and that, because the jury found in Defendants’ favor for their negligent misrepresentation claim, the agreement was void as a matter of law.106 Plaintiffs respond that they provided sufficient evidence for the jury to find in their favor concerning breach of the implied covenant of good faith and fair dealing.107 The Court construes Defendants’ arguments as (1) a sufficiency of the evidence argument and (2) a challenge to the special verdict form provided to the jury.108 103 Id. (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)). 104 Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (citing Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371–72 (9th Cir. 1987)). 105 Molski, 481 F.3d at 729. 106 Docket 112 at 3–4. 107 Docket 117 at 5–6. 108 Docket 118 at 4 (“However, given the erroneous special verdict form, the jury was permitted to disregard the law and enter an inappropriate compromise verdict . . . the jury was never specifically asked if Defendants were able to prove whether the Agreement was void.”). 1. Implied covenant of good faith and fair dealing Defendants argue that Plaintiffs provided no evidence or argument regarding Defendants’ breach of the implied covenant of good faith and fair dealing.109 Plaintiffs argue that because the covenant of good faith and fair dealing is implied in every contract and does not alter the expectations to a contract, evidence regarding contract negotiations, formation, execution, and performance, or lack thereof, all are relevant for establishing a claim for breach of the covenant.110 Defendants’ assertion is not supported by the record. Jury instruction number 21 outlines the elements for breach of the implied covenant of good faith and fair dealing stating in relevant part: Defendants breached the implied promise of good faith and fair dealing if you find that it is more likely true than not true that: (1) Defendants intentionally deprived Plaintiffs of a benefit of the Sale Contract; or (2) Defendants deprived Plaintiffs of a benefit of the Sale Contract by acting in a manner that a reasonable person would regard as unfair.111 Drawing all inferences in favor of Plaintiffs, it is clear that Plaintiffs provided sufficient evidence to support the jury’s verdict that Defendants breached the implied covenant of good faith and fair dealing. Plaintiffs provided evidence that Mr. Madsen stood to benefit from the Sale Contract financially and in his personal life. Mr. Madsen was to receive $1,500,000.00 as 109 Docket 112 at 3–4. 110 Docket 117 at 5. 111 Docket 104 at 23. the purchase price under the Sale Contract.112 Defendants’ payments to Mr. Madsen were to coincide with payments Mr. Madsen owed on a deed of trust encumbering SLH.113 Mr. Madsen stood to gain financial flexibility, not only from the overall purchase price, but also the structure of the payments. Under the Sale Contract, Mr. Madsen retained a five percent ownership interest in SLH.114 During trial, Mr. Madsen testified that his five percent ownership interest would enable him to recreate at the Lodge in a personal capacity without paying to stay at the Lodge.115 By contrast, the Sale Contract transferred the entire ownership interest in SLA.116 Mr. Madsen testified that he was selling the business arm of the Lodge in its entirety because he intended to reduce the demands on his time and attention.117 Thus, Mr. Madsen stood to benefit personally by retaining access to an area where he enjoyed recreating, without having the stresses associated with running SLA.118 Plaintiffs provided evidence to support a finding that Defendants had acted in a manner that a reasonable person would view as unfair. Defendants could not run the outfitting operation without Mr. Pierskalla.119 However, Mr. Pierskalla felt mistreated by his prospective employers and demanded to sort out his employment details before he would continue working with Defendants.120 Plaintiffs pointed out that the relationship 112 Docket 110-1 at 3. 113 Id. at 4. 114 Id. at 3. 115 Docket 127 at 9 (explaining that Mr. Madsen would pay for consumables, but other than that would not pay for operating costs or be entitled to profits generated by SLA). 116 Docket 110-1 at 3. 117 Docket 126 at 13; Docket 127 at 9. 118 Docket 126 at 8; Docket 127 at 9. 119 Docket 129 at 32 (“[W]e couldn’t ink this deal if Nick didn’t s[t]ay on. Nick was to stay on so that there would be some continuity.”). 120 Docket 122-2 at 20–21; Docket 129 at 29–30. between Mr. Pierskalla and Defendants soured on or around December 7, 2020,121 just days before Defendants informed Plaintiffs that they were going to vacate the lodge and cease future payments.122 Plaintiffs argued that Defendants realized they were in “deep trouble” and decided to walk away from the Sale Contract after they had soured their relationship with Mr. Pierskalla, using the client list and social media access as pretextual excuses.123 When control of the Lodge was returned by Defendants, there was significant damage to the vehicles; the premises was covered with trash; roughly 25 propane tanks were missing; and Plaintiffs had used, but not replaced, much of the consumables on site, such as gasoline.124 The jury may have believed Plaintiffs’ theory, namely that Defendants mishandled their relationship with Mr. Pierskalla, and, when the relationship soured, Defendants decided to renege on their obligations under the Sale Contract.125 It is also plausible that the jury believed Defendants removed propane tanks, damaged equipment, and left trash on the premises before vacating the lodge.126 Based on these facts, there was adequate evidence for the jury to find Defendants’ actions and motivations to be objectively unfair. Defendants’ assertion that Plaintiffs provided no evidence or argument to support a finding that Defendants breached the implied covenant of good faith and fair 121 Docket 129 at 29–30. 122 Id. at 42–43. 123 Docket 130 at 3–4. 124 Docket 128 at 4–11; Docket 126 at 27–30. 125 Docket 130 at 3–4. 126 Docket 128 at 4–11; Docket 126 at 27–30. dealing is incorrect. Because the record contains sufficient evidence to support the jury’s finding, the Court cannot grant Defendants’ Renewed Motion for JMOL.127 2. Special verdict form Defendants argue that flaws in the special verdict form empowered the jury to disregard the law and prevented the jury from determining whether the underlying contract was void.128 Question one of the special verdict form asks the jury to determine whether Defendants breached the Sale Contract and, if they answer “no,” the form directs the jury to skip questions two through five, and answer question six regarding the implied covenant of good faith and fair dealing.129 After the close of trial and the dismissal of the jury, Defendants now take issue with this procedure because their affirmative defenses contained in questions two, three, and four were skipped by the jury as a result of the jury’s answer to question one.130 The Court finds that Defendants have waived this argument by failing to raise it before the jury was dismissed. When a “moving party argues that the jury has rendered a verdict that contains two legal conclusions that are inconsistent with one another, and the moving party does not object before jury discharge,” the party has waived the argument.131 127 Bridge Aina Le’a, LLC, 950 F.3d at 624 (quoting Pavao, 307 F.3d at 918). 128 Docket 118 at 4. 129 Docket 105. 130 Docket 118 at 4. 131 E.g., Kode v. Carlson, 596 F.3d 608, 611 (9th Cir. 2010); Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1028–29 (9th Cir. 2003) (“The failure to raise this issue prior to the return of the verdict results in a complete waiver, precluding our consideration of the merits of the issue.”); Philippine Nat. Oil Co. v. Garrett Corp., 724 F.2d 803, 806 (9th Cir. 1984) (“We hold that PNOC waived its right to object to the verdict by failing to object when the verdict was read.”); Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1331 (9th Cir. 1995) (“We conclude that the district court properly refused to amend the judgment because Home waived its objection to With input and feedback from the parties, the Court created a jury instruction packet (“Jury Packet”) consisting of jury instructions and the special verdict form.132 On the morning of the fifth day of trial the Court met with the parties outside the presence of the jury and discussed several requested modifications to the Jury Packet.133 After incorporating the modifications, the Court explained that the Jury Packet would be finalized later that day and that counsel for both parties would have a chance to review and “put on the record any objections that they might have to that final packet.”134 After the parties reviewed the finalized Jury Packet, Defendants specifically indicated they did not have any issues with the finalized Jury Packet, which included the special verdict form.135 During closing arguments, Defendants asked the jury to fill out the special verdict form by answering “no” to question one and specifically outlining that the jury would then skip questions two through five, and answer question six.136 The jury followed the special verdict form, including the procedure highlighted by Defendants during closing arguments.137 On July 25, 2023, the jury reached a verdict.138 Before ushering the jury into the courtroom, the Court met with the parties to discuss the procedure for reading the the jury’s verdict on its contribution claim by not objecting to the alleged inconsistency prior to the dismissal of the jury.”). 132 See generally Docket 70; Docket 73; Docket 76; Docket 81 (text order); Docket 82; Docket 85; Docket 86; Docket 89; Docket 90; Docket 104; Docket 105; see also Docket 125 at 4; Docket 126 at 30–34; Docket 129 at 2–5. 133 Docket 129 at 2–5. 134 Id. at 5. 135 Docket 132 at 10, 13. 136 Docket 129 at 43–44. 137 Docket 105. 138 Docket 100-4; Docket 105. verdict.139 Counsel for Defendants, appearing virtually,140 indicated he had no problem with the normal procedure outlined by the Court.141 The jury was ushered into the courtroom, the Court received the unanimous verdict and read it into the record.142 The Court then asked both parties if they wanted the jury polled, to which the parties responded they did not.143 Subsequently, the Court asked each party if there was anything that needed to be addressed.144 Counsel for Defendants stated, “Not at the moment, Your Honor. I have a feeling there may be some motions filed at later date on our account.”145 Defendants never objected to the verdict or to the special verdict form contained in the finalized Jury Packet. By not objecting prior to jury discharge, Defendants waived their argument that the special verdict form prejudiced them, and that the verdict was inconsistent. Because Plaintiffs provided sufficient evidence to support the jury’s finding for breach of the covenant of good faith and fair dealing, and Defendants waived their argument regarding the special verdict form/inconsistent verdict, Defendants’ Renewed JMOL is DENIED. 139 Docket 131 at 2. 140 Counsel for Defendants requested permission to give closing arguments immediately after the close of evidence. Plaintiffs agreed to the unorthodox procedure and the Court granted Defendants’ request. Counsel for Defendants gave closing argument on day five of trial and then left the District of Alaska. On day six of trial Plaintiffs gave closing arguments. See Docket 129 at 22–24; Docket 130 at 1–3. 141 Docket 131 at 3. 142 Id. at 4. 143 Id. at 5–6. 144 Id. at 6. 145 Id. B. Defendants’ Motion for New Trial Defendants seek a new trial and argue that “(1) the jury’s verdict is against the great weight of the evidence; (2) the special verdict form prejudiced Defendants; and (3) the jury’s verdict is an improper compromise verdict.”146 Plaintiffs argue that they did provide evidence concerning breach of the implied covenant of good faith and fair dealing and that the jury verdict is not inherently inconsistent.147 1. Sufficiency of evidence Defendants again argue that no evidence was provided to support the jury’s verdict that Defendants breached the implied covenant of good faith and fair dealing.148 Above, the Court examined this argument under the standard applicable to Defendants’ Renewed JMOL. Here, because Defendants seek a new trial, the Court will weigh the evidence to determine whether the “verdict is contrary to the clear weight of the evidence.”149 The jury instructions explained that Defendants breached the implied covenant of good faith and fair dealing if “Defendants deprived Plaintiffs of a benefit of the Sale Contract by acting in a manner that a reasonable person would regard as unfair.”150 Plaintiffs provided evidence of two separate examples of how Defendants acted in a manner that a reasonable person could find unfair. First, Plaintiffs argued that 146 Docket 111 at 2. 147 See generally Docket 117. 148 Docket 111 at 4. 149 Molski, 481 F.3d at 729. 150 Docket 104 at 23. Defendants walked away from the Sale Contract not because of anything Mr. Madsen did, but instead because Defendants had alienated Mr. Pierskalla and Defendants feared they would be left without a registered guide.151 This conclusion is supported by the communication between Mr. Pierskalla and Defendants, as well as the short time period between when Mr. Pierskalla demanded fair compensation and Defendants terminated the Sale Contract.152 Second, Plaintiffs also provided evidence that Defendants left the Lodge in a state of disrepair.153 This included trash strewn about the property, damage to several vehicles, mud tracked throughout the Lodge, dirty dishes left in the Lodge, and removal of propane and propane accessories from the Lodge.154 Defendants argued that they terminated the Sale Contract because Mr. Madsen failed to provide required items under the Sale Contract,155 and provided a video allegedly depicting the condition of the Lodge when it was turned back over to Plaintiffs.156 The jury’s finding that Defendants breached the implied covenant of good faith and fair dealing is not contrary to the clear weight of the evidence. Mr. Morrison testified that he felt reservations because Mr. Pierskalla’s continued assistance was in question.157 While Mr. Morrison blamed the situation with Mr. Pierskalla on 151 Docket 130 at 3–4. 152 Docket 122-2 at 20–21; Docket 129 at 29–30, 42–43. 153 Docket 128 at 4–11; Docket 126 at 27–30. 154 Docket 128 at 4–11; Docket 126 at 27–30. 155 Docket 128 at 19–33. 156 Docket 129 at 9–17. 157 Id. at 38. Mr. Madsen,158 in reviewing the communication between Mr. Pierskalla and Mr. Morrison there is evidence to support the finding that Defendants were responsible for the relationship souring.159 Based on this evidence, the jury reasonably could have concluded that Defendants were motivated to terminate the Sale Contract because of their own actions. Additionally, Plaintiffs provided testimony from witnesses with firsthand knowledge concerning the state of the Lodge when Defendants re-took possession.160 The videos provided by Defendants, especially in the absence of Mr. Schille’s testimony, do not provide a sufficiently strong evidentiary foundation to overshadow Plaintiffs’ testimony. The Court, after evaluating the evidence provided by both parties, finds that the jury’s verdict is reasonable and is not contrary to the clear weight of the evidence. 2. Special verdict form and compromise verdict Defendants allege the jury found that the Sale Contract was void due to misrepresentation and that the special verdict form prejudiced Defendants.161 This is incorrect; the jury did not find that the Sale Contract was void.162 The jury followed the special verdict form and the instructions Defendants gave during closing arguments.163 As discussed above, Defendants waived the opportunity to raise arguments regarding the special verdict form. 158 Id. at 30. 159 Docket 122-2 at 19–21. 160 Docket 128 at 4–11. 161 Docket 111 at 5. 162 Docket 105. 163 Id. 3. Compromise verdict Similarly, Defendants allege that the verdict is a “compromise verdict” and urge the Court to grant a new trial because the damages award was much smaller than Defendants requested.164 Specifically, Defendants repeat their incorrect assertion that the jury found the Sale Contract was void due to misrepresentation and therefore, at a minimum, Defendants should have been awarded $82,100.00 for the deposit under the Sale Contract.165 Plaintiffs argue that Defendants’ theory that the jury’s “compromise verdict” warrants a new trial is novel and unsupported by case law from the Ninth Circuit and the District of Alaska.166 Again, the jury did not find the Sale Contract was void due to misrepresentation.167 Rather, the jury did find Plaintiffs liable for the tort of misrepresentation.168 At trial, Defendants insisted that the special verdict form include both the affirmative defense of misrepresentation and the stand-alone tort claims for misrepresentation. They insisted on this important distinction because application of the affirmative defense would void the Sale Contract and return the deposit, while the tort claims could provide damages from before the Sale Contract, including expenses from the due diligence trip.169 164 Docket 111 at 7–8. 165 Id. at 8. 166 Docket 117 at 10 n.3. 167 Docket 105 at ¶ 3. 168 Id. 169 Docket 126 at 34. Defendants now conflate the tort of misrepresentation with the affirmative defense, stating, “rather than awarding Defendants $82,100 for the deposit, which should have been mandatory per the instructions (as argued by Defendants), Defendants [sic] awarded each party $1.”170 Defendants cite to nothing in the record to support their assertion that awarding $82,100 would be mandatory. In fact, the proposed jury instructions provided by Defendants stated that if the jury were to find in Defendants’ favor, the jury must “decide how much money, if any, will fairly compensate [Defendants].”171 The Jury Packet contained the same language that Defendants provided.172 Defendants’ assertion that the jury was required to award $82,100 if the jury found in their favor is unsubstantiated. Defendants’ belief that the tort of negligent misrepresentation voided the Sale Contract is undermined by Defendants’ previous position: that application of the affirmative defense would void the Sale Contract, whereas the tort of negligent misrepresentation would result in other relief.173 Defendants’ remaining arguments concerning a compromise verdict rely on the same arguments posed in the preceding sections. As noted above, the Court has found there to be sufficient evidence to support a finding that Defendants breached the implied 170 Docket 111 at 8 (“The jury found that the Agreement was void based on Madsen’s negligent misrepresentation; however, rather than awarding Defendants $82,100 for the deposit, which should have been mandatory per the instructions (as argued by Defendants), Defendants [sic] awarded each party $1.”). 171 Docket 73-1 at 7; Docket 86-1 at 1. 172 Docket 104 at 32. 173 Docket 126 at 34. covenant of good faith and fair dealing, and that Defendants have waived their argument concerning the special verdict form. Defendants’ Motion for New Trial is DENIED. C. Cross Motions for Attorney’s Fees Both parties claim to be the prevailing party and thus entitled to costs and attorney’s fees under the Sale Contract.174 Plaintiffs additionally argue that they are entitled to attorney’s fees and costs under Alaska Rule 68 based on their offer of judgment.175 Defendants argue that Alaska Rule 68 does not apply because FRCP 68 governs in federal court, and further argue that FRCP 68 does not permit Plaintiffs to make an offer of judgment in their capacity as Counter-Defendants.176 The Court first will determine the question of prevailing party. The Court then will determine the legal effect of Plaintiffs’ offer of judgment. 1. Prevailing party The Sale Contract contains an attorney’s fees provision which applies if either party retains an attorney “to enforce any provision of this Agreement or to protect its interest in any manner arising under this Agreement, or to recover damages for its breach.”177 The provision entitles the prevailing party to “all reasonable costs, damages and expenses, including related actual attorneys’ fees, expended or incurred.”178 However, if multiple items are disputed with a final decision against each side, the costs and fees 174 See generally Docket 107; see also Docket 108. 175 Docket 107 at 4–6. 176 Docket 108 at 3–4 (quoting Home Indem. Co. 43 F.3d 1322, 1332 (9th Cir. 1995)). 177 Docket 110-1 at 12. 178 Id. shall be apportioned according to “the monetary values of the items decided against each party.”179 District courts follow state rules for awarding attorney’s fees when exercising their subject matter jurisdiction over state law claims.180 Under Alaska law, “[t]he prevailing party to a suit is the one who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of the original contention.”181 “However, there is no ‘immutable rule that the party who obtains an affirmative recovery must be considered the prevailing party.’”182 “Clearly it is within the trial court’s discretion to deny attorney’s fees altogether,” especially where both parties prevail on a main issue and the trial court considers the case to be a “wash.”183 In this case, each side prevailed on one claim and was awarded a single dollar.184 The Court can find no better example of a “wash.”185 Neither side is the prevailing party under the Sale Contract. Both sides argue that the clause within the attorney’s fees provision apportioning costs based on the value of the respective claims 179 Id. 180 U.S. ex rel. Rebar Placement Co. v. GBC, L.L.C. Contractors, No. A03-73 CV JWS, 2005 WL 846211, at *1 (D. Alaska Jan. 18, 2005); see also D. Alaska Loc. Civ. R. 54.2; Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 972 (9th Cir. 2013); Northon v. Rule, 637 F.3d 937, 938 (9th Cir. 2011) (internal quotations omitted) (“State laws awarding attorneys’ fees are generally considered to be substantive laws under the Erie doctrine and apply to actions pending in federal district court when the fee award is connected to the substance of the case.”). 181 Tobeluk v. Lind, 589 P.2d 873, 876 (Alaska 1979) (quoting Buza v. Columbia Lumber Co., 395 P.2d 511, 514 (Alaska 1964)). 182 Id at 877 (internal quotation marks omitted) (quoting Owen Jones & Sons, Inc. v. C.R. Lewis Co., 497 P.2d 312, 313–14 (Alaska 1972)). 183 Id at 877–89; see also Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1242 (Alaska 2013). 184 Docket 105 at ¶¶ 6–7, 14–15. 185 Schultz 301 P.3d at 1242. does not apply.186 Therefore, Defendants Motion for Attorney’s Fees is DENIED. Plaintiffs’ Motion for Attorney’s Fees under the Sale Contract is DENIED. 2. Offer of judgment Plaintiffs assert that they are entitled to attorney’s fees pursuant to Alaska Rule 68 because they made an offer of judgment to Defendants, which Defendants rejected.187 Defendants argue that Alaska Civil Rule 68 does not apply because FRCP 68 should govern this diversity action.188 Defendants also argue that FRCP 68 “applies only to offers of judgment made by a defendant.”189 Essentially, Defendants argue that Plaintiffs should receive no benefit from their offer of judgment that Defendants rejected. The Court will determine: (1) whether FRCP 68 forecloses recovery under Alaska Civil Rule 68; and (2) whether FRCP 68 permits Plaintiffs to make an offer of judgment in these circumstances. (a) FRCP 68 and Alaska Rule 68 Defendants argue that, because this Court sits in diversity, Alaska Rule 68 is inapplicable, and that the issue is moot because the Sale Contract contains an attorney’s fees provision.190 Plaintiffs argue that the Court should apply Alaska Rule 68 because state laws entitling a party to attorney’s fees are substantive rather than procedural.191 186 Docket 107 at 3; Docket 108 at 3. 187 Docket 107 at 4–5. 188 Docket 108 at 3. 189 Id. at 4 (quoting Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1332 (9th Cir. 1995)). 190 Docket 110 at 3–4. 191 Docket 109 at 5–6. Under FRCP 68, when a party makes an offer of judgment at least 14 days before trial, the offer is denied and 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.”192 The plain language of FRCP 68 only entitles the offeror to costs.193 In situations where a federal court is applying state substantive law, state law generally will govern an award of attorney’ fees.194 In addressing this issue, the Ninth Circuit explained that “[t]he Supreme Court’s construction of [FRCP] 68 in Marek v. Chesny . . . governs an award of post-offer attorneys’ fees” Marek applies to both federal statutes and state statutes granting attorney’s fees.195 Marek looked to the underlying statute which permitted recovery of attorney’s fees to determine whether those fees were considered “costs for purposes of [FRCP] 68.”196 If the underlying state law considers attorney’s fees as costs, then FRCP 68 applies to those fees and forecloses recovery.197 If, however, the underlying state law considers attorney’s fees separate from costs, then FRCP 68 does not apply to those fees and a party may be entitled to fees if they comply with the relevant law which entitles the party to such fees.198 Alaska law does not consider attorney’s fees as part of costs.199 When Alaska Rule 68 applies, the offeree must pay “all costs” and a percentage of attorney’s fees based 192 Fed. R. Civ. P. 68. 193 Id. 194 Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1024–25 (9th Cir. 2003) (citing Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000)). 195 Id. at 1026–28. 196 Marek v. Chesny, 473 U.S. 1, 9 (1985). 197 Haworth v. State of Nev., 56 F.3d 1048, 1051 (9th Cir. 1995). 198 Id. 199 Alaska R. Civ. P. 68. on when the offer of judgment was made.200 Under Marek, FRCP 68 does not apply to the attorney’s fees sought by Plaintiffs pursuant to Alaska Rule 68. Instead, the procedure outlined in FRCP 54 permits a party to seek attorney’s fees, provided the moving party timely files and specifies the grounds entitling them to attorney’s fees.201 In Cheffins v. Stewart, the Ninth Circuit permitted Stewart to recover attorney’s fees based on a Nevada law entitling a party to recover attorney’s fees if an offer of judgment is rejected.202 The Cheffins court noted that even where the offer of judgment did not satisfy the requirements of FRCP 68, Stewart could recover attorney’s fees through FRCP 54 because the offer of judgment satisfied the underlying Nevada state law.203 Therefore, the Court will examine whether Plaintiffs complied with Alaska Rule 68 and FRCP 54. Alaska Rule 68 applies when a party makes an offer of judgment at least ten days before the start of trial and the offer is rejected.204 “The offer may not be revoked in the 10 day period following service of the offer.”205 “If the judgment finally rendered by the court is at least 5 percent less favorable to the offeree than the offer,” the offeror is entitled to all costs and a percentage of the offeror’s attorney’s fees.206 On September 28, 2022, Plaintiffs made an offer of judgment to Defendants that would have “resolve[d] all claims between all parties.”207 The offer of judgment remained open for 14 days and would 200 Alaska R. Civ. P. 68. 201 Fed. R. Civ. P. 54. 202 825 F.3d 588, 597 (9th Cir. 2016). 203 Id. 204 Alaska R. Civ. P. 68(a). 205 Id. 206 Alaska R. Civ. P. 68(b). 207 Docket 107-1 at 1. have paid $125,000.00 to Defendants.208 Defendants rejected the offer, and on July 17, 2023, the case went to trial.209 The jury awarded Defendants one dollar; this award is much less favorable than the offer of judgment made by plaintiffs.210 Therefore, Plaintiffs complied with Alaska Rule 68. Plaintiffs made their offer of judgment more than 90 days before the first day of trial and more than 60 days after initial disclosures were due, entitling them to all costs and 50 percent of Plaintiffs’ attorney’s fees incurred after the offer of judgment was made.211 FRCP 54 requires that a “claim for attorney’s fees” be made by motion, filed within 14 days of judgment being entered, specify the “grounds entitling the movant to the award,” and provide the amount sought or a fair estimate of the amount sought.212 On July 26, 2023, the Court entered judgment.213 Nine days later, on August 4, 2023, Plaintiffs filed their Motion for Fees and Costs.214 Plaintiffs’ Motion for Fees and Costs explained the grounds they believe entitled them to their attorney’s fees and costs.215 Plaintiffs provided a rough estimate of the amount sought.216 Thus, Plaintiffs complied with FRCP 54.217 208 Id. at 1–2. 209 Docket 94. 210 Compare Docket 107-1 with Docket 105 at ¶¶ 6–7, 14–15. 211 Alaska R. Civ. P. 68; compare Docket 107-1 with Docket 12 and Docket 94. 212 Fed. R. Civ. P. 54. 213 Docket 106. 214 Docket 107 at 6. 215 Id. at 1–5. 216 Id. at 5. 217 See generally Docket 107. Because attorney’s fees are considered separately from costs under Alaska substantive law, and FRCP 68 only applies to costs, the Court considered Plaintiffs’ request for attorney’s fees under Alaska Rule 68. Plaintiffs’ offer of judgment complied with Alaska Rule 68, and their Motion for Fees and Costs complied with FRCP 54. Plaintiffs are entitled to 50 percent of their attorney’s fees pursuant to Alaska Rule 68 from the date the offer of judgment was made. Defendants’ argument that the issue is moot based on the attorney’s fees provision in the Sale Contract is unpersuasive. Defendants rely on caselaw concerning attorney’s fees provisions and the application of Alaska Rule 82.218 The caselaw does not discuss whether a provision for attorney’s fees has any effect on application of Alaska Rule 68.219 Alaska Rule 82 states in relevant part: “Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney’s fees calculated under this rule.”220 Under this language, if the parties agree to a provision for attorney’s fees, Alaska Rule 82 is inapplicable. Alaska Rule 68, however, does not limit recovery based on the presence of a provision for attorney’s fees.221 The Court disagrees with Defendants, the attorney’s fees provision in the Sale Contract does not prevent application of Alaska Rule 68 in the general sense.222 218 Docket 110 at 4. 219 Bernie’s Pharmacy, Inc. v. AmerisourceBergen Drug Corp., No. 3:18-CV-00183- TMB, 2019 WL 5156273 (D. Alaska May 1, 2019). 220 Alaska R. Civ. P. 82. 221 Alaska R. Civ. P. 68. 222 The Court notes that it is unclear the effect an attorney’s fees provision may have on Alaska Rule 68(c), which discusses the potential amount of attorney’s fees to which a party may be entitled. Under Alaska Rule 68(c), an offeror who satisfies the requirements of Alaska Rule 68(b) is entitled to whichever is greater, the attorney’s fees calculated using Alaska (b) FRCP 68 and counter-defendants Defendants argue that FRCP 68 does not permit Plaintiffs to make an offer of judgment in their capacity as counter-defendants.223 Plaintiffs argue that the express language of FRCP does not distinguish between Plaintiffs and Defendants, but instead only requires that a party be defending against a claim. Under FRCP 68, if “a party defending against a claim” makes a valid offer of judgment which is denied, and 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.”224 FRCP 68 provides an incentive for parties defending against a claim to make reasonable settlement offers early in litigation.225 The specific language, “a party defending against a claim,” as opposed to just “defendants,” indicates that any party who finds themselves defending against a claim may benefit from the incentive scheme provided in FRCP 68.226 Rule 68(b) or the attorney’s fees calculated using Alaska Rule 82. Where Alaska Rule 82 does not apply, if the parties have agreed to an attorney’s fees provision it is unclear whether Alaska Rule 68(c) could entitle Plaintiffs to a greater amount than that specified under Alaska Rule 68(b). Neither party has raised this issue, and Plaintiffs’ request for attorney’s fees pursuant to Alaska Rule 68 clearly presumes application of Alaska Rule 68(b). See Docket 107 at 4–5 (“Given the timing of when the Rule 68 offer was made, the Plaintiffs would be entitled to 50% of their actual attorney’s fees after the date of the offer being made pursuant to ARCP 68(b)(2).”). The Court has found no caselaw on this issue. Therefore, the Court takes no position on how Alaska Rule 68(c) applies in situations where there is an agreement between the parties concerning attorney’s fees, such as the provision in the Sale Contract. 223 Docket 108 at 4 (quoting Home Indem. Co. 43 F.3d 1322, 1332 (9th Cir. 1995)). 224 Fed. R. Civ. P. 68. 225 Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1024 (9th Cir. 2003). 226 Fed. R. Civ. P. 68(a). In Simon v. Intercontinental Transp. (ICT) B.V., Simon sued the owners of a boat, ICT, for injuries he suffered while working as a stevedore on the boat.227 Simon’s employer, MTC, had been paying workmen’s compensation for Simon’s injuries.228 After Simon and ICT began settlement negotiations, MTC formally appeared and requested a lien against Simon’s potential recovery against ICT.229 Simon, the original plaintiff, made an offer of judgment to MTC, which MTC rejected.230 After judgment issued, the district court concluded that FRCP 68 was satisfied and ordered MTC to pay costs to Simon.231 In reviewing MTC’s appeal, the Ninth Circuit noted that Simon was permitted to make an offer of judgment under FRCP 68 for MTC’s claim even though he also was a plaintiff in the action.232 Defendants’ reliance on Home Indem. Co. v. Lane Powell Moss & Miller is misplaced. In Home Indem. Co. an insurance company, Home Indemnity Co. (“Home”), sued for legal malpractice against the firm which had represented them in an underlying action; there were no claims against Home.233 Because Home was a plaintiff and was not defending any claims, FRCP 68 did not permit Home to benefit from its offer of judgment.234 227 Simon v. Intercontinental Transp. (ICT) B.V., 882 F.2d 1435, 1437 (9th Cir. 1989). 228 Id. 229 Id. 230 Id. at 1438. 231 Id. 232 Id. at 1439. 233 Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1325 (9th Cir. 1995). 234 Id. at 1332. Plaintiffs made their offer of judgement in accordance with FRCP 68. The offer of judgment was made more than 14 days before the start of trial and permitted Defendants to accept it anytime within 14 days from when it was served.235 Plaintiffs’ offer of judgment was for $125,000.00236 and Defendants received only one dollar for their claims against Plaintiffs at trial.237 Pursuant to FRCP 68, Plaintiffs are entitled to costs incurred after the offer was made. Because Plaintiffs complied with the requirements outlined in FRCP 68, they are entitled to costs permitted under the FRCP from the date the offer was made, pursuant to FRCP 68. Based on Plaintiffs’ offer of judgment, they also are entitled to 50 percent of their reasonable actual attorney’s fees from when the offer was made, pursuant to Alaska Rule 68 and FRCP 54. Plaintiffs request leave to supplement their Motion for Attorney’s Fees with an accounting of attorney’s fees incurred in the post-verdict motion practice.238 FRCP 68 does not include a cutoff date for costs once judgment is entered.239 Similarly, Alaska Civil Rule 68 does not include a cutoff for attorney’s fees once judgment is entered.240 The Court will permit Plaintiffs to recover any costs and attorney’s fees incurred in the post- verdict motion practice. Plaintiffs are directed to file revised accountings of their costs and attorney’s fees from the date of their offer of judgment. Because Plaintiffs are entitled to 235 Docket 107-1. 236 Id. 237 Docket 105 at ¶ 15. 238 Docket 117 at 11. 239 Fed. R. Civ. P. 54. 240 Alaska R. Civ. P. 68. costs pursuant to FRCP 68, and attorney’s fees pursuant to FRCP 54 in connection with Alaska Rule 68, Plaintiffs should provide two separate accountings, one for costs and one for attorney’s fees. IV. CONCLUSION For the reasons stated above: Defendants Motions at Dockets 108, 111, and 112 are DENIED; Plaintiffs Motion at Docket 107 is GRANTED IN PART and DENIED IN PART. IT IS SO ORDERED this 3rd day of April, 2024, at Anchorage, Alaska. /s/ Joshua M. Kindred JOSHUA M. KINDRED United States District Judge