Robert Kubiak v. County of Ravalli

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT EDWARD KUBIAK, No. 21-35542
Plaintiff-Appellee,
D.C. No.
v. 9:20-cv-00036-
DWM
COUNTY OF RAVALLI; STEPHEN
HOLTON; DARYL PETZ,
Defendants-Appellants. OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted March 18, 2022
Las Vegas, Nevada
Filed May 3, 2022
Before: Andrew J. Kleinfeld, D. Michael Fisher, * and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Fisher
*
The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2 KUBIAK V. COUNTY OF RAVALLI
SUMMARY **
Civil Rights/Civil Procedure
The panel affirmed the district court’s judgment in favor
of plaintiff, entered in accordance with defendants’ Federal
Rule of Civil Procedure 68 offer of judgment, in an action
brought pursuant to 42 U.S.C. § 1983 challenging plaintiff’s
arrest and detention.
After plaintiff brought his civil rights suit against the
County of Ravalli and others, the County filed a motion for
summary judgment on all claims. Several weeks later, while
its motion was still pending, the County made plaintiff a
Rule 68 offer of judgment for $50,000 plus costs and
attorney’s fees. Before Rule 68’s fourteen-day window had
closed, the district court—which did not know the County
had made the offer—granted the summary judgment motion.
But the court did not enter final judgment. Rather, it said that
judgment would be entered “in due course” after it issued a
reasoned opinion. Within an hour of the entry of this order,
plaintiff accepted the County’s offer of judgment. The
district court held that, under Rule 68, it was bound by the
offer of judgment and entered judgment for plaintiff in the
amount of $50,000 plus costs and fees.
The panel held that under the plain text of Rule 68, the
district court properly entered judgment according to the
County’s offer of judgment. The panel’s review of the rule
showed that it was designed to function in a mechanical
manner. A Rule 68 offer, once made, is non-negotiable; it is
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
KUBIAK V. COUNTY OF RAVALLI 3
either accepted, in which case it is automatically entered by
the clerk of court, or rejected, in which case it stands as the
marker by which the plaintiff’s results are ultimately
measured. Nor does the text of the rule admit of exceptions
to the fourteen-day period during which an offer of judgment
remains open.
COUNSEL
Maureen H. Lennon (argued) and Mitchell A. Young,
MACo Defense Services, Helena, Montana, for Defendants-
Appellants.
Shandor S. Badaruddin (argued), Shandor S. Badaruddin
PC, Missoula, Montana, for Plaintiff-Appellee.
OPINION
D.M. FISHER, Circuit Judge:
Under Federal Rule of Civil Procedure 68, a defendant
may make an offer of judgment to a plaintiff. An offer of
judgment is essentially a settlement offer, but by virtue of
the rule, it has unique features: the plaintiff may accept it at
any time within fourteen days after receiving it, and if he
does, the district court must enter judgment accordingly.
Robert Kubiak brought a civil rights suit against the
County of Ravalli, the Ravalli County Sheriff’s Office, and
others. The County filed a motion for summary judgment on
all claims. Several weeks later, while its motion was still
pending, the County made Kubiak a Rule 68 offer of
judgment for $50,000 plus costs and attorney’s fees. Before
4 KUBIAK V. COUNTY OF RAVALLI
Rule 68’s fourteen-day window had closed, the District
Court—which did not know the County had made the
offer—granted the summary judgment motion. But the
Court did not enter final judgment. Rather, it said that
judgment would be entered “in due course” after it issued a
reasoned opinion. Within an hour of the entry of this order,
Kubiak accepted the County’s offer of judgment. The
District Court held that, under Rule 68, it was bound by the
offer of judgment. Judgment was thus entered for Kubiak in
the amount of $50,000 plus costs and fees. The County
appeals. We affirm.
I.
The genesis of this case was a Temporary Order of
Protection entered against Robert Kubiak. A sheriff’s deputy
concluded that Kubiak violated the terms of the Order when
he served a motion, by mail, on the woman who had sought
protection. Kubiak was arrested and held overnight in the
Ravalli County Detention Center.
In March 2020, Kubiak sued the county, its sheriff, and
the sheriff’s deputy (to whom we refer, collectively, as “the
County”) under 42 U.S.C. § 1983. “Section 1983 creates a
‘species of tort liability’ for ‘the deprivation of any rights,
privileges, or immunities secured by the Constitution.’”
Manuel v. City of Joliet, 137 S. Ct. 911, 916 (2017) (quoting
first Imbler v. Pachtman, 424 U.S. 409, 417 (1976), then
42 U.S.C. § 1983). Kubiak claimed, among other things, that
his arrest and detention violated his First, Fourth, and
Fourteenth Amendment rights.
On April 20, 2021, the County filed a motion for
summary judgment. On June 3, 2021, the County made
Kubiak a Rule 68 offer: judgment would be entered against
the defendants for $50,000 plus costs, including reasonable
KUBIAK V. COUNTY OF RAVALLI 5
attorney’s fees. The offer stated that if it was “not accepted
within the time prescribed by Rule 68(a), Fed. R. Civ. P., it
[would be] deemed withdrawn pursuant to Rule 68(b).” Rule
68(a) provides a fourteen-day window for acceptance of an
offer of judgment.
Less than a week after the offer, on June 9 at 4:09 p.m.,
the District Court entered an order stating that Kubiak’s
claims failed and that “Defendants’ motion for summary
judgment . . . is GRANTED.” The order further provided,
“A reasoned decision will follow in due course. Judgment
will be entered at that time.” When the District Court entered
this order, it did not know about the County’s outstanding
Rule 68 offer. This comports with Rule 68 procedures: the
defendant serves its offer on the plaintiff but does not file it
with the court. See Fed. R. Civ. P. 68(a). The offer is filed
only upon acceptance. Id.Six minutes after the District Court entered its non-final
order granting summary judgment, the County’s counsel
emailed Kubiak’s counsel: “Given the Court’s ruling
granting our Motion for Summary Judgment, the Offer of
Judgment is hereby withdrawn.” Within an hour, Kubiak
filed with the Court a notice of acceptance of the offer of
judgment.
The County objected to the entry of judgment and
requested that the District Court “deem the Offer a nullity as
of the issuance of its Order granting summary judgment to
Defendants.” The District Court overruled the County’s
objection, relying on two cases we will discuss further.
Citing Collar v. Abalux, Inc., 895 F.3d 1278, 1284 (11th Cir.
2018), the District Court said that the County’s Rule 68 offer
would have been mooted only “if judgment had been entered
in [the County’s] favor.” Then, citing Perkins v. U S West
Communications, 138 F.3d 336, 339 (8th Cir. 1998), the
6 KUBIAK V. COUNTY OF RAVALLI
Court reasoned that, because the summary judgment order
said that judgment would be entered sometime in the future,
the offer of judgment was required to remain open for the
full fourteen-day period provided by Rule 68. The Court
ordered that, “[p]ursuant to Rule 68, the Clerk will enter
judgment for Kubiak.” The clerk did so.
II.
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 (federal questions) and 1343 (civil rights actions).
We have jurisdiction under 28 U.S.C. § 1291 (final decisions
of district courts). We review de novo both the construction
of a Rule 68 offer and the interpretation of the Federal Rules
of Civil Procedure. Erdman v. Cochise County, 926 F.2d
877, 879 (9th Cir. 1991); Cal. Scents v. Surco Prods., Inc.,
406 F.3d 1102, 1105 (9th Cir. 2005).
III.
“We employ the ‘traditional tools of statutory
construction’ to interpret the Federal Rules of Civil
Procedure.” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121,
1125 (9th Cir. 2017) (citation omitted). “[O]ur first step is
thus determining whether the language at issue has a plain
meaning.” Id. (internal quotation marks, alteration, and
citation omitted). We read words and phrases “not . . . in
isolation, but with an eye toward the purpose and context of
the statute.” Id. (internal quotation marks and citation
omitted). “An interpretation that gives effect to every clause
is generally preferable to one that does not.” Id. (citation
omitted).
The parameters of an offer of judgment are as follows:
KUBIAK V. COUNTY OF RAVALLI 7
At 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. If, within 14 days 1 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.
Fed. R. Civ. P. 68(a). The rule goes on to say that that “[a]n
unaccepted offer is considered withdrawn.” Fed. R. Civ. P.
68(b). A Rule 68 offer is more consequential than a run-of-
the-mill settlement offer: “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.” Fed. R. Civ. P. 68(d).
Thus, “a plaintiff who receives a Rule 68 offer is in a
difficult position, because a Rule 68 offer has a binding
effect when refused as well as when accepted; this results
from the Rule’s cost-shifting mechanism, which becomes
operative upon failure to accept.” Radecki v. Amoco Oil Co.,
858 F.2d 397, 402 (8th Cir. 1988) (internal quotation marks
and citation omitted). The stakes for a plaintiff receiving a
Rule 68 offer are “especially high in civil rights cases.”
Erdman, 926 F.2d at 880. Because a prevailing § 1983
plaintiff may ordinarily receive “a reasonable attorney’s fee
1
“Until amendment in 2009, the rule allowed ten days to decide
whether to accept an offer of judgment. In 2009, Rule 68(a) was amended
as part of an overall review of timing provisions in the Civil Rules to
extend the 10-day period to 14 days.” 12 Charles Alan Wright, Arthur R.
Miller & Richard L. Marcus, Fed. Prac. & Proc. § 3004 n.1 (3d ed. 2014).
8 KUBIAK V. COUNTY OF RAVALLI
as part of the costs,” 42 U.S.C. § 1988(b), attorney’s fees in
a § 1983 suit “are subject to the cost-shifting provision of
Rule 68.” Marek v. Chesny, 473 U.S. 1, 9 (1985). So if a
§ 1983 plaintiff turns down a Rule 68 offer, goes to trial, and
wins a judgment less favorable than the rejected offer, he
loses his entitlement to attorney’s fees as of the date of the
offer. See id. at 12.
Rule 68 can be a high-stakes proposition for defendants,
too. “It is widely accepted that ‘[t]he [Rule 68] offer, once
made, is non-negotiable. . . .’” Beauchamp v. Anaheim
Union High Sch. Dist., 816 F.3d 1216, 1223 (9th Cir. 2016)
(quoting Nusom v. Comh Woodburn, Inc., 122 F.3d 830, 834
(9th Cir. 1997)). In addition, we have “repeatedly
emphasized that Rule 68 offers of judgment are ‘analyzed in
the same manner as any contract,’” so “‘any ambiguities are
construed against the drafter.’” Miller v. City of Portland,
868 F.3d 846, 851 (9th Cir. 2017) (quoting Erdman,
926 F.2d at 880).
Rule 68 allows no discretion on the part of the district
court. If the plaintiff accepts a Rule 68 offer, “it is
automatically entered by the clerk of court.” Beauchamp,
816 F.3d at 1223 (quoting Nusom, 122 F.3d at 834). There is
broad agreement on this aspect of the rule. See, e.g., Mei
Xing Yu v. Hasaki Rest., Inc., 944 F.3d 395, 400 (2d Cir.
2019) (“Rule 68(a)’s command that the clerk must enter
judgment is mandatory and absolute.”); Ramming v. Nat.
Gas Pipeline Co. of Am., 390 F.3d 366, 371 (5th Cir. 2004)
(“the district court did not have the discretion to refuse to
enter the Offer of Judgment” or change its terms); Mallory
v. Eyrich, 922 F.2d 1273, 1279 (6th Cir. 1991) (the district
court’s function is “ministerial rather than discretionary”).
KUBIAK V. COUNTY OF RAVALLI 9
A.
Under the plain text of Rule 68, the District Court
properly entered judgment according to the County’s offer
of judgment. Our review of the rule, above, shows that it was
designed to function in a mechanical manner. A Rule 68
“offer, once made, is non-negotiable; it is either accepted, in
which case it is automatically entered by the clerk of court,
or rejected, in which case it stands as the marker by which
the plaintiff’s results are ultimately measured.” Nusom,
122 F.3d at 834. Nor does the text of the rule admit of
exceptions to the fourteen-day period during which an offer
of judgment remains open. Rule 68 simply provides that
“[i]f, within 14 days after being served, the [plaintiff] serves
written notice accepting the offer,” the acceptance may be
filed and judgment must be entered, Fed. R. Civ. P. 68(a);
“[a]n unaccepted offer is considered withdrawn,” Fed. R.
Civ. P. 68(b).
According to the rule’s text, then, an offer must remain
open for fourteen days, and it may be either accepted or
rejected. No other outcome (such as negotiation or
revocation) is contemplated. If the parties file a notice that
the plaintiff has accepted the offer, the clerk “must then enter
judgment.” Fed. R. Civ. P. 68(a). The rule contains no
exception for the entry of a non-final order granting
summary judgment on all claims, and we decline to create
one. Hillis v. Heineman, 626 F.3d 1014, 1017 (9th Cir. 2010)
(“Only the most compelling of reasons will persuade us to
imply an exception” when “interpreting the Federal Rules of
Civil Procedure.”).
The County argues that, under the plain language of the
rule, it is “a party defending against a claim” that “may serve
on an opposing party an offer to allow judgment.” Fed. R.
Civ. P. 68(a). After the grant of summary judgment, the
10 KUBIAK V. COUNTY OF RAVALLI
County asserts, there was nothing left to defend—so it and
its co-defendants were no longer “part[ies] defending against
a claim,” Fed. R. Civ. P. 68(a).
The County certainly was “defending against a claim”
when it made the offer of judgment, before summary
judgment had been granted, and the rule does not state or
imply that the defendant must be in the same position during
the entire pendency of the offer. Nor can it be said that a
defendant is no longer “defending” after winning summary
judgment, since much can go wrong for the defendant
between a summary judgment decision and a final judgment.
In sum, under the plain text of Rule 68, the District Court
properly entered judgment for Kubiak.
B.
Our conclusion is supported by other Circuits’ uniform
interpretations of the rule.
Kubiak relies on the Eighth Circuit’s 1998 decision in
Perkins v. U S West Communications, 138 F.3d 336, while
the County relies on the Eleventh Circuit’s 2018 decision in
Collar v. Abalux, Inc., 895 F.3d 1278. Perkins and Collar
are distinguishable because in those cases, the district courts
both granted summary judgment and entered final judgment
while Rule 68 offers were outstanding. Perkins, 138 F.3d
at 337–38; Collar, 895 F.3d at 1280–81. Thus, the plaintiffs
in those cases accepted the Rule 68 offers not only after
summary judgment was granted, but after final judgment
was entered. Here, of course, despite the grant of summary
judgment, the District Court had not yet entered final
judgment when Kubiak accepted the Rule 68 offer. Despite
this key distinction, the reasoning of Collar and Perkins is
KUBIAK V. COUNTY OF RAVALLI 11
helpful. And, though the cases arrive at opposite
conclusions, both support affirmance here.
In Perkins, the Eighth Circuit held that the plaintiff could
accept the offer of judgment within the rule’s acceptance
period, despite the entry of final judgment. “Rule 68,” the
Court said, “leaves no discretion in the district court to do
anything other than enter judgment once an offer of
judgment has been accepted.” Perkins, 138 F.3d at 338. The
Court held that “[b]y directing that the clerk shall enter
judgment after proof of offer and acceptance has been filed,”
the rule’s plain language “indicates that the district court
possesses no discretion to alter or modify the parties’
agreement.” Id. The Eighth Circuit concluded that “the plain
language of Rule 68 mandates that an offer of judgment
remain valid and open for acceptance for the full ten-day
period outlined in the Rule despite an intervening grant of
summary judgment,” i.e., final judgment. Id. at 339.
The Eleventh Circuit, by contrast, held that Rule 68
offers do not survive the entry of final judgment because
“Rule 68(a) provides a method of pretrial dispute resolution
where no judgment has yet been entered.” Collar, 895 F.3d
at 1283. The rule “does not direct the clerk to vacate or
amend an earlier final judgment.” Id. The Eleventh Circuit
concluded that “[a] defendant is no longer ‘defending against
a claim’ after a district court enters a final judgment in its
favor. . . . [T]he entry of a final judgment ends the operation
of Rule 68(a).” Id. at 1284 (quoting Fed. R. Civ. P. 68(a)).
Notably, though, the Court stated that, in general—absent
the entry of final judgment—if a Rule 68 offer “is timely
accepted by the plaintiff, . . . . the clerk of court performs the
ministerial act of entering a judgment.” Id. at 1283 (quoting
Marek, 473 U.S. at 6). In other words, in the usual case, the
entry of judgment under Rule 68 is mandatory.
12 KUBIAK V. COUNTY OF RAVALLI
A D.C. Circuit case also supports affirmance. There, the
defendant made a Rule 68 offer of judgment and then learned
that the plaintiff’s medical claims might be unfounded.
Richardson v. Nat’l R.R. Passenger Corp., 49 F.3d 760, 762
(D.C. Cir. 1995). The defendant attempted to withdraw the
offer. Id. The D.C. Circuit, citing Rule 68’s “rather finely
tuned procedure,” noted that an offer of judgment imposes
potentially costly consequences on the plaintiff and, “[i]n
return, the plaintiff . . . is guaranteed 10 days to ponder the
matter (as though the plaintiff had paid for a 10-day option).”
Id. at 765. Therefore, the Court held, “a Rule 68 offer is
simply not revocable during the 10-day period.” Id.We agree with all of our sister Circuits to have
considered the questions posed by this case: an offer of
judgment must remain open for the full period provided by
Rule 68 and, when a notice of acceptance is filed, the clerk
must enter judgment accordingly. Perkins, 138 F.3d at 338–
39; Collar, 895 F.3d at 1283; Richardson, 49 F.3d at 765.
And our decision is in line with several other Circuits who,
while not specifically considering whether a Rule 68 offer
must remain open for the full acceptance period, have
uniformly agreed with us that a district court must enter
judgment when acceptance of a Rule 68 offer is filed.
Beauchamp, 816 F.3d at 1223 (Ninth Circuit); Mei Xing Yu,
944 F.3d at 400–01 (Second Circuit); Ramming, 390 F.3d at
371 (Fifth Circuit); Mallory, 922 F.2d at 1279 (Sixth
Circuit). We need not weigh in on the split between Perkins
(Eighth Circuit) and Collar (Eleventh Circuit) over whether
Rule 68 continues to operate after final judgment, because
we are not presented with that circumstance.
The Eighth Circuit, in concluding that the plaintiff could
accept the Rule 68 offer after the entry of final judgment,
emphasized the fact that the defendant landed where it did
KUBIAK V. COUNTY OF RAVALLI 13
through its own litigation choices. Perkins, 138 F.3d at 339–
40. By making a Rule 68 offer, the defendant “assumed the
risk that the District Court would rule favorably on [the]
summary judgment motion during the . . . period for
acceptance of its Rule 68 offer. [The defendant] took the
chance that it could bring an end to this litigation” for the
amount of its offer and “was unpleasantly surprised to find
that, had it waited . . . , it could have brought an end to this
litigation for much less.” Id. The same thing happened here.
While the sequence of events that played out in the District
Court leads to a harsh result for the County, we agree with
other Circuits that the language of Rule 68 must control.
C.
The County offers three other arguments for reversal.
Each fails to overcome the plain text of Rule 68.
1.
First, the County argues that the District Court’s grant of
summary judgment fully and finally disposed of the case, so
there was nothing left to defend. For the purposes of the Rule
68 analysis, the County contends, the summary judgment
order amounted to a final order.
The County is correct that “the primary purpose of Rule
68 is to encourage settlements, and it should be construed
with this objective in mind.” Lang v. Gates, 36 F.3d 73, 76
(9th Cir. 1994). And we agree that Kubiak got an opportunity
that does not seem to be envisioned by Rule 68: because of
flukes in timing and in the District Court’s handling of the
summary judgment motion, he was able to make a
knowledgeable choice between the District Court’s ruling
and the County’s offer of judgment. We decline, however,
to extend Lang to the facts of this case.
14 KUBIAK V. COUNTY OF RAVALLI
In Lang, the defendants in a § 1983 civil rights action
made a Rule 68 offer, which both plaintiffs did not accept.
Id.at 74. Nine months later, the parties settled—not pursuant
to Rule 68—for the same amount as the Rule 68 offer. Id. As
part of the settlement, the plaintiffs dismissed their action
with prejudice. Id. By its terms, Rule 68 shifts costs where
“the judgment that the offeree finally obtains is not more
favorable than the unaccepted offer.” Fed. R. Civ. P. 68(d)
(emphasis added). The plaintiffs voluntarily dismissed their
suit, so they did not obtain a judgment. See Lang, 36 F.3d at
74. Even so, the district court applied Rule 68, and because
the settlement was “not more favorable than the unaccepted
[Rule 68] offer,” Fed. R. Civ. P. 68(d), the court awarded
fees only up to the date of the offer, see Lang, 36 F.3d at 74.
We affirmed, concluding that Rule 68(d) cost-shifting
applied because “an order of dismissal with prejudice . . . , if
not in form a judgment for defendants, is certainly one in
substance.” Id. at 76. The County argues that we should
apply Lang and conclude that the District Court’s summary
judgment order was, in substance, a final judgment for the
defendants that nullified their outstanding Rule 68 offer.
As we have explained at some length, though, the plain
text of Rule 68 required the County’s offer of judgment to
be open for fourteen days and required the District Court to
enter judgment for Kubiak when the notice of acceptance
was filed. See Briseno, 844 F.3d at 1125 (holding that federal
rules are construed in accordance with their language); see
also Delta Air Lines, Inc. v. August, 450 U.S. 346, 352–56
(1981) (interpreting Rule 68 according to its plain language);
Marek, 473 U.S. at 5–7 (same). The County’s preferred
outcome cannot be squared with Rule 68’s text. Lang held
that a dismissal with prejudice is equivalent to a final
judgment for Rule 68 purposes, but said nothing about a non-
KUBIAK V. COUNTY OF RAVALLI 15
final order that grants summary judgment. See 36 F.3d at 76.
Therefore, Lang does not control.
The Eleventh Circuit’s Collar decision, upon which the
County relies, does not support the County’s interpretation
of what constitutes a final judgment. Collar defined a final
judgment as an appealable order that “ends the litigation on
the merits and leaves nothing more for the court to do but
execute the judgment.” 895 F.3d at 1283 (quoting Green
Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86 (2000)).
Here, the County could not have appealed from the order
granting summary judgment. By its own terms, that order
was not a final judgment—the judgment was to be entered
“in due course.” Unlike in Collar, there was more for the
District Court to do: as the Court wrote in its order, it needed
to issue “[a] reasoned decision.” And much can happen in
the course of writing a reasoned decision; a judge may even
change his or her mind about the correct outcome. Therefore,
Collar does not support the argument that the summary
judgment order was close enough to a final judgment.
2.
Second, the County argues that, as a matter of Montana
contract law, the offer of judgment did not result in a valid
contract and therefore should be deemed ineffective. The
County reasons that Montana law requires consideration for
the formation of a valid contract, but when the summary
judgment order was entered, the consideration evaporated. 2
2
Minutes after the District Court granted summary judgment, the
County’s counsel emailed Kubiak’s counsel: “Given the Court’s ruling
granting our Motion for Summary Judgment, the Offer of Judgment is
hereby withdrawn.” However, the County has been very clear, both in its
brief and at oral argument, that it does not make a contract-law argument
16 KUBIAK V. COUNTY OF RAVALLI
The County is correct that “Rule 68 offers of judgment
are ‘analyzed in the same manner as any contract.’” Miller,
868 F.3d at 851 (quoting Erdman, 926 F.2d at 880). And it
is also correct that, under Montana law, there must be
consideration—that is, each party to a contract must “confer
some legal benefit and/or incur some detriment.” Mont. Pub.
Emp.’s Ass’n v. Off. of Governor, 898 P.2d 675, 678 (Mont.
1995); Mont. Code Ann. § 28-2-102 (“It is essential to the
existence of a contract that there be . . . a sufficient cause or
consideration.”).
But offers of judgment differ from ordinary contracts in
key ways, so we do not import contract law wholesale into a
Rule 68 analysis. To name one distinction, “‘Rule 68 offers
differ from contracts with respect to attorney fees’; as to
them, any waiver or limitation must be clear and
unambiguous.” Nusom, 122 F.3d at 833 (quoting Erdman,
926 F.2d at 880). Another distinction is that the district court
clerk “must . . . enter judgment” when a party files an
accepted Rule 68 offer—the court may not stop to decide
whether there is consideration. Fed. R. Civ. P. 68 (a); see
also, e.g., Beauchamp, 816 F.3d at 1223 (entry of judgment
by the clerk is automatic). Therefore, Montana contract law
does not overcome the mandatory operation of Rule 68.
3.
Third, the County argues that it could not have drafted
an offer that would have insulated it from an unexpected
entry of summary judgment. Kubiak, on the other hand,
contends that the County was the master of its offer and
points to the Eighth Circuit’s statement implying that a
that the offer of judgment could not be accepted because it was
withdrawn.
KUBIAK V. COUNTY OF RAVALLI 17
defendant may condition its Rule 68 offer “upon the District
Court’s not granting [the] motion for summary judgment.”
Perkins, 138 F.3d at 339.
The County responds that, notwithstanding the Eighth
Circuit’s comment in Perkins, it would have been futile to
include such a condition in the offer. The County questions
whether such a condition would be compatible with Rule 68.
The answer to that is unclear. We have held that a Rule 68
offer may be conditioned on acceptance by all plaintiffs.
Lang, 36 F.3d at 75. But conditioning an offer on the district
court not granting summary judgment could be incompatible
with Rule 68 if its effect is to shorten the fourteen-day
acceptance period.
In any event, the County did not attempt to condition its
offer on the non-grant of summary judgment, so the
permissibility of such a condition cannot be decided now.
D.
We conclude with a brief note about what we do not
decide today. First, as we have made clear, we express no
view on whether an entry of final judgment would nullify an
outstanding Rule 68 offer. And second, we do not decide the
fate of Rule 68 offers in “exceptional factual situations,”
such as when the plaintiff’s claim is fraudulent. Colonial
Penn Ins. Co. v. Coil, 887 F.2d 1236, 1240 (4th Cir. 1989).
This appeal does not present those issues, so we do not
consider them.
IV.
For all these reasons, we AFFIRM.