When making a Rule 68 offer of judgment, it is essential that the offeror clearly state whether attorney fees and costs are included in the final offer. This principle was highlighted in Louie Medina v. Gilbert Mega Furniture after the Ninth Circuit awarded the plaintiffs more than $20,000 in addition to the amount agreed upon in the defendant’s Rule 68 offer of judgment. No. CV-16-04033-PHX-SPL, 2019 WL 3778406 (D. Ariz. Aug. 12, 2019).
Plaintiffs Michael Innes and Larry Berisford filed a notice accepting defendant Gilbert Mega Furniture’s offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure. Then, after the court dismissed the case, the plaintiffs sought an order to refile a motion for attorneys’ fees and costs. The defendant objected on the basis that the parties’ discussions surrounding the offer of judgment showed a mutual understanding that it would include attorney fees and costs.