thousand dollars movie probably made an offer of judgment pursuant to all sixty eight four hundred fifty thousand champion declined that offer parties and went to trial and the jury returned a verdict of one hundred three thousand ruby brings disappear here now with regard to the underlying marriage the concerning the post verdict proceedings concerning the allocations of risk and the allocation of cost under will sixty eight in the post trial motions really the court stated that you look to whether or not there isn't a substantive statute or other authority that provides a definition for cost in this case there was such a statute i don't how cold one twenty three therefore decision whether or not to accept it allocates risks and potential costs in a fixed man at that time in other words the parties don't have to wait until judgment to know who will bear the cost other than other than to determine what the final judgment will be so in other words there will be a comparison of the end of the day of the judgment and the offer and of the offer re the plaintiff has to understand that if they decline the offer then they will be responsible and it's good news as a rule that has a mandatory application to provide the syllogism provide strength to the rule particularly in cases like this where there has been a legislative decision to abrogate the so called american rule that each side bears its own attorney's fees and what mary has to say in this regard is that in situations where the american rule has been abrogated and there are something like five dozen federal statutes and i don't know how many states act around the circuit and around the country that do so in those circumstances it is appropriate to look state procedural context and this was one of the issues that was brief but well and i think it creates some interesting and somewhat complicated sort of eerie issues or maybe more like a hanna versus palmer issue because  i think there's no question here that will sixty eight the federal sixty eight applies in that with regard to the interpretation of that rule hannah requires that we look to federal law with regard to the underlying below where an idaho court ever held that the plaintiffs prevailed for the purposes of obtaining attorney fees notwithstanding having failed to improve on an offer of judgment to try that may just be because the issue hasn't been presented to the idaho but and under the the basic statute they sued under one would think they'd have some right to some fees and were saying rule sixty eight as a rule fifty eight or six logical result of the majority's opinion in that case would be exactly what ruby is arguing here the plaintiffs would have to pay defendants attorney's fees and in fact he says i don't know in this hard to imagine a way you avoid it given what majority say his concern in america was with civil rights plaintiffs who are precisely the sorts of plaintiffs who we don't want to scare out of court because they don't tend to have a lot of resources and we want them to bring claims because they act almost as private attorney thanks for the seventh circuit because that's where i practiced but i disagree respectfully with them in this one incident in harbor motor some circuit did say they recognized what they believed to be a split in the in the circuit in which i have to equal i actually think if you incorporate this prevailing party notion into the definition of costs you end up in a circumstance where defendants are almost worse off with the legislators abrogated the american rule than in party in that instance because you wouldn't have the bright line test that rule sixty eight lays down we would have had the very litigation we ended up having on the motion to amend the judgment and i believe it would have probably come out the way that it did where the court ruled that think is that true and had the court determined that they were the prevailing party otherwise maybe this answers your question the other way to this issue was before the court because our offer did include pre op or fees and so the court did have to make a determination absent the offer of judgment did they prevail and he exercised discretion to determine that they did not prevail i want to make one quick last point in that have to do with idaho law if the court was going to adopt the concept of a prevailing party from the idaho statute i think it would have a group that did take into account how idaho courts conduct the prevailing party analysis and in the i don't supreme court's decision in leavitt i hope from court  under a heading prevailing party for purposes of awarding costs under rule sixty eight offer of judgment make that determination entirely based on the comparison of the judgement and the offer of judgement which is different than how idaho normally conducts a prevailing party analysis and a necklace the court actually sees it twice because the trial court did it one way compare the judgement and the offer and then that appellate court the supreme court there that it was going didn't address those issues although we could brief that i think if he had he would have realized that under the able to construct a prevailing party in the context of a rule sixty eight offer ruby should have been awarded its taxable cost and of risk and and i think that is inherently a federal to the extent there was going to be a state component of the substantive right impact that i think that's where i would and that's another instance in which you could argue that a right is created through the usual rules but but there is a uniform application of the rule and decades back i think the church schools point that it can sometimes be harsh the context of the of the offer of judgment the other thing i think is important to work through is that rule sixty eight doesn't change who prevail will sixty merely shifts who is entitled to costs in the same way that rule fifty into determines who is entitle to cost i think one of the mistakes that the magistrate judge made here was by incorporating that notion of prevailing party which is really just prefatory language that exists in just about every  determine who was the prevailing party the issue becomes did he make the right decision as to who was the prevailing party in this case this is a diversity action that was brought in state court was removed to federal court and it is based on state law are the state statute that underlies the attorney fees in this case is idaho code twelve dash one twenty subsection three and they're in a diversity action in federal court the federal court is that there does have to be a determination person foremost who is the prevailing party and particularly because the statute that we're relying on and i think that both parties are of relying on specifically requires that there be a prevailing party determination and for their bit to be appealing party determination there is two different situations where you have to determine when and after a judgment comes in was their prevailing party pre our first and was their prevailing party record properly recognized the need to make the determination however we would submit to this court that he made the improper determination that champion protos was not the prevailing party in this case the appellant suggests that rule sixty eight in federal rules has a bright line rule that once the offer is made and rejected and the plaintiff gets an award less than the offer then there's a  meaning of the federal statute that says prevailing pretty gets these but under the rule sixty eight fees are included in costs by virtue of state law take that approach to where if you reach those conclusions yes if you reach the conclusion that the person for most of the substantive statute allows attorney fees asc taxes cost in this case it does not the way the statute reads is that the prevailing party is entitle to fees and i think where the rules enabling act comes into play you you can't look at the federal rule you have to look at how i do hold plays idaho lar and in this case idaho has consistently held that you can not get fees under twelve one twenty seven and three unless you are the prevailing party and i think that if you cross the line is they simply because a matter of judgement was made pursuant to federal rule now that the other party who did not prevail at trial who had judgment taken against them now gets fisa i think there is an expansion and a violation of the enabling act yes and your plans argument if there is a rule that you lose prevailing party status i think that the in the cases cited by counsel and by the appellant in everything goes directly against that first and foremost in america case they still made a prevailing party determination simply because there was an offer of judgment made they didn't specifically say that the plaintiff was not the prevailing party and i think it's interesting and very important to note that they didn't make that analysis in this case the account would like this court not to make the prevailing party now says that if they think that it's not even a political here but in reality it has to be a flexible in order for them to recover fees under the idaho code the cases that were also side of that were out of jurisdiction the first circuit court case of only be utilized if there's a prevailing party there is another case that we've cited in our brief and weaver and that case the court will know if read mackie's that we have a case there was a rule sixteen after a judgment made and the plaintiff was still considered the prevailing party now most recently in the prevailing party analysis you have to determine ok who is the prevailing party and in this is generally the rule in that federal district court in the district of idaho the prevailing party is is the one who successfully prosecute the action more successfully defense against it prevails on the merits of the main issue and on one in whose favor the decision or verdict is rendered and judgment entered well in this case and there are there's a three part inquiry that the article courts have used to determine the prevailing party in terms of determining cost and fees in that case the court said that the the three party inquiry was one that the result obtained in relation to the receipt reliefs i have to be considered whether there were multiple claims or issues and then third the extent to which view the party prevailed on each issue a claim this court has adopted that language in the j contract on various rounds and on various points first and foremost they said that the person who entered into the contact contract lacked the authority didn't have agency to make a contract they said that it violated the statute of frauds and  has several other affirmative defenses that this contract didn't even exist so at that point what champion was left to do was certainly just live it gave the matter several things happen through the course of that letter stick from coun stamped discovery was sent depositions were taken and ultimately a motion for summary judgment was filed on this issue as to whether or not champion really had in forcible contract the judge made a decision as a matter of law added whether or not it was commercially practiced impractical to do or to fulfill the terms of the contract and also attend said the champion never tendered its onions so all of those issues went before the jury at the trial the jury clearly found in favor of champion produce they said they were asked in the special a rather tori's was their car they were told in a jury instruction that there was a valid forcible contract they were asked whether champion produce complied with the terms of the contract they said yes i did really robinson comply with the terms of the contract they said no did i really rather to show that it was commercially impractical to fill the terms of the contract the jury said no they said well did champion tender the onions and he said yes they said did champion cancel the contract and they said no what the jury said is champion produce waived one portion of the contract and that portion of the contract was the amount or the quantity amount under one term but then the jury came back and said but we don't think really robinson lived up to its terms and we think champion prose is damaged and we're going to give them in excess of one hundred thousand dollars well throughout the entire course of the litigation really robinson was complaining claiming that they never had a contract so in terms of who prevailed in this case champion produce didn't come out with just a dollar or a thousand dollars a suggested and in some of the cases that the rule sixty eight applies they came out with one hundred thousand dollars and that's pretty significant the state of idaho applying those standards to the seacoast this case and also that just th they waived the contract in part and to the extent which we prevailed ad trial we received a verdict in excess of one hundred thousand dollars now the interplay now between rule sixty eight and the judgment that we got the appellant would like sixty eight under the federal rules only allows attorney fees to be taxed as costs if there's a substantive statute that allows it and in this case there's not and so i don't think it would be applied differently in idaho if there were a substantive statute that allowed attorneys fees it would be applied differently but rule sixty eight does not have a bright line rule in idaho that says you are a manically get your attorney fees the idaho courts have specifically address whether or not a rule offer after sixty eight judgement affects the prevailing party status and council cites the latter case for the proposition that it automatically shifts and there is no prevailing party a simple enough line idaho and i urge the court to read that case been a factor in determining which party prevailed it is clear that it is not the only or even most significant factor to be determined or considered so you know i don't know how they interpret the prevailing party rule offers operative sixty eight there is a policy around rule sixteen why it is there and it's to virtually prop settlement encourage settlement and and shift some risk to the other side for pursuing with a geisha and and in the sense that where there's an offer of made of one hundred fifty thousand dollars as there was in this case and the jury verdict was one hundred three thousand dollars you're in a situation where you might have done better might have done better had you taken the offer of judgment well in this case  would submit that that's not the case because the district court made an error in his application of rule sixty eight in this case as the federal court application of rule sixty eight goes it's the final judgment obtained that is weighed against the offer forty and i think it brings the prevailing party analysis and factors even closer together to where the real offer of judgment would have been less a factor it's just it should have been one of the factors the court determined not  confused me for a minute the the offer of judgment that we had i was basically in to include the interest cost and attorney fees and that was the rule at the after a judgment that was similar to champion pro that for to make the determination as to what the balance should have been we must include the interest the cost in attorney fees by the on language of the after of judgment and the court would not do that in this case if the court would have done that playing clued in the interest the cost and fee judgment was another to this issue about the prevailing party it is confusing because what merrick says is all costs properly war of all under the substance statute or other authority should be included as fees i think that's the wrong reading a properly awarded will i think the proper reading a problem of properly award of all is that in this type of case this is the kind of thing kind of cost that can be that create or bridge substantive rights in the sense that it can't either make someone pay someone else's fees or else not be entitled to fees that they would otherwise be entitled otherwise wouldn't have been and i also think that it would really fundamentally undermine the role that sixty sixty really does have to school mention that you use this rule in practice it is a very potentially a very significant rule in practice but what gives it its significance is it's a fear that someone has to pay for a deposition transcript or hobby or or one of the other types of costs that come under twenty eight u s c nine hundred twenty what gives that force and particularly in cases that abrogate the american rule is this potential that you're going to have to pay the other side's lawyers doesn't exist in every case and only this is where the legislature has determined the cost can be defined  that's clear in the record that cherubim would have to pay back over to ruby if we ruled for ruby champion produce would have to pay approximately two hundred forty thousand dollars for three months of litigation so did not make the proper determination of the prevailing party what would your feel what would be the fees that championed just order of magnitude for the period before the offer of the attorney's fees were approximately forty thousand just put it on your desk and you get to do it and last and always i would ask that the court do remain out a portion of this back to the district court for the district court to make a determination about the reasonableness of fees and i want us to champion pretty thank you