2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-19-2011

Roberto Lima v. Newark Police Dept

Precedential or Non-Precedential: Precedential

Docket No. 10-1743

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1743

___________

ROBERTO LIMA,

 Appellant

v.

NEWARK POLICE DEPARTMENT; GARRY 

MCCARTHY; SAMUEL DEMAIO; LYDELL JAMES; 

JOSE ALICEA; LIEUTENANT MICHAEL LATORRE

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 08-cv-00426)

District Judge: Honorable Faith S. Hochberg

___________

Argued February 14, 2011

Before: SLOVITER, HARDIMAN and

ALDISERT, Circuit Judges.

(Filed: July 19, 2011)
2

Baher A. Azmy [Argued]

Lori D. Tully

Seton Hall Law School 

833 McCarter Highway 

Newark, NJ 07102-0000 

Edward L. Barocas

American Civil Liberties Union of New Jersey Foundation 

89 Market Street 

P.O. Box 32159 

Newark, NJ 07102-0000 

Attorneys for Appellant

Gary S. Lipshutz [Argued]

City of Newark 

Department of Law 

Room 316 

920 Broad Street 

Newark, NJ 07102-0000

Attorneys for Defendant-Appellee Newark Police 

Department and Garry McCarthy

Brooke Bagley

Ronald J. Ricci

300 Lackawanna Avenue 

Suite 5 

Little Falls, NJ 07424 

Attorneys for Defendants Jose Alicea 

and Michael Latorre

Monica Y. Cho

Law Offices of Bhalla & Cho 
3

333 Washington Street 

Suite 203 

Jersey City, NJ 07302

Attorney for Appellees Lydell James 

and Samuel DeMaio

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Rule 68 of the Federal Rules of Civil Procedure is 

intended to promote the amicable resolution of cases. 

Although it usually serves its intended purpose, Rule 68

presents a trap for the unwary. This trap manifests itself most 

frequently when a defendant erroneously believes that an 

accepted Rule 68 offer of judgment finally resolves a civil 

action, only to be assessed substantial attorney‟s fees and 

costs thereafter by the court.

In this appeal, Plaintiff Roberto Lima argues that the

Rule 68 offer of judgment he accepted did not include 

attorney‟s fees and costs. As in many cases, the question is 

significant because counsel for Lima seek fees well in excess 

of the value of his settled claims.

I
4

A

The historical facts of this case are incidental to the 

issue presented on appeal, so we summarize them only 

briefly. In September 2007, a photographer working for 

Lima‟s Portuguese-language newspaper, Brazilian Voice, 

discovered and photographed a decomposed body covered by 

debris in the Ironbound section of Newark, New Jersey. 

Lima reported the incident to police and showed them the 

crime scene. At the crime scene, two police officers allegedly 

intimidated Lima and the photographer, seized the camera, 

and ordered Lima not to publish any photographs of the 

scene. At the precinct office, Lima gave police a statement

but refused to turn over the original photographs (though he 

offered to make copies for them). Lima further alleged that 

he was handcuffed and released from custody only after he 

agreed to turn over all copies of the photographs. The police 

then followed him to his office where they seized CDs 

containing digital copies of the pictures.

In January 2008, Lima filed suit in New Jersey District 

Court against the Newark Police Department and certain 

police officers. He amended his complaint once to add an 

additional officer, and then again, in January 2009, adding 

Police Director Garry McCarthy, another officer, and a

Monell claim against the City of Newark (collectively, 

Newark).

Lima‟s second amended complaint stated seven causes 

of action arising under both federal and state law and 

concluded with a “PRAYER FOR RELIEF” stating:
5

WHEREFORE, Plaintiff respectfully 

requests judgment against the Defendants as 

follows:

(a) Compensatory and consequential 

damages in an amount to be 

determined at trial;

(b) Punitive damages on all claims 

allowed by law, in an amount to 

be determined at trial;

(c) Attorney‟s fees and costs 

associated with this action;

(d) Any further relief as this Court 

deems just and proper and any 

other relief as allowed by law.

B

Before discovery commenced, and before filing his 

second amended complaint, Lima offered to settle the case for 

“$85,000, and [an] admission of the event; an apology; and 

consent to training.” After some discovery, the filing of the 

second amended complaint, further settlement negotiations, 

and a failed attempt at mediation—during which Lima‟s 

demand went as high as $150,000 and Newark‟s offer went as 

high as $50,000—Newark made a Rule 68 offer of judgment

(Offer). The Offer was attached to a November 8, 2009 email 

stating: “Attached is an Offer of Judgment from the City of 

Newark and Garry McCarthy. The offer is, however, as to all 

defendants and all claims. The City makes this offer with the 
6

intention and expectation that, if accepted, this litigation will 

be resolved in its entirety.” The Offer itself stated:

Pursuant to Rule 68 of the Federal Rules of 

Civil Procedure, Defendants City of Newark 

(and improperly pled “Newark Police 

Department”), and Garry McCarthy, hereby 

offers [sic] to allow Judgment to be entered 

against these defendants in this action in the 

amount of $55,000.00, including all of 

Plaintiff‟s claims for relief against all 

defendants, including those not represented by 

this counsel. This offer of judgment is made for 

the purposes specified in Federal Rule of Civil 

Procedure 68, and is not to be construed as 

either an admission that any of the defendants 

are liable in this action, or that the Plaintiff has 

suffered any damage. This Offer of Judgment 

shall not be filed with the Court unless (a) 

accepted or (b) in a proceeding to determine 

costs (which includes counsel fees that could be 

awarded pursuant to statute).

Lima timely accepted the Offer and simultaneously 

filed a request for judgment seeking “judgment against 

Defendants in the amount of $55,000, with costs to be taxed 

by the Court upon application by Plaintiff pursuant to Rule 

54(d) of the Federal Rules of Civil Procedure and 42 U.S.C. § 

1988.” Upon receiving Lima‟s acceptance of the Offer, 

Newark promptly wrote to the Magistrate Judge assigned to 

the case, stating:

Just to be clear, the Defendants‟ Offer of 

Judgment was for „all of Plaintiff‟s claims 
7

against all defendants.‟ There should be no 

confusion about any remaining claims, whether 

for costs or anything else; no such claims 

remain. But if there is any confusion, let me 

clarify that the Defendants‟ Offer of Judgment 

was not designed to expose the citizens of the 

City of Newark to any further expense other 

than the $55,000 offered.

If the Plaintiff intends to seek costs and 

attorneys fees, the Defendants seek immediate 

relief and clarification from Your Honor.

Lima‟s counsel responded the next day, countering Newark 

by asserting: “The Offer and Plaintiff‟s Acceptance are 

binding, so that the only remaining question for resolution is 

the amount of costs and fees to which Plaintiff is entitled.”

After receiving the aforementioned correspondence, 

the Magistrate Judge ordered counsel to meet and confer, but 

they were unable to come to an agreement. Because the 

parties could not resolve the dispute over fees without judicial 

intervention, the District Court ordered briefing on the matter 

and, on February 22, 2010, entered an order: (1) granting 

Lima‟s “Request for Judgment in the amount of $55,000” and 

(2) denying his “Request to File an Application for Attorneys‟ 

Fees . . . because . . . the Offer of Judgment included 

attorneys‟ fees.” Lima v. Newark Police Dep’t, No. 08-426, 

slip op. (D.N.J. Feb. 22, 2010) (Lima).

In support of its decision, the District Court reasoned 

that “Newark was not silent as to costs, but rather used three 

different phrases to state that the offer was a lump sum, single 

offer to cover all claims in the case and end the litigation 
8

while specifically disclaiming any liability.” Id. at 2-3. The 

three phrases the District Court found significant were:

(1) „Judgment to be entered against these 

defendants in this action in the amount of 

$55,000, including all of Plaintiff‟s claims for

relief against all defendants,‟ in the Offer of 

Judgment, [which] explicitly covers Prayer for 

Relief subpart (c) in the Complaint which 

claims the following relief: „(c) attorney‟s fees 

and costs associated with this action‟;

(2) „This . . . is not to be construed as either an 

admission that any of the defendants are liable 

in this action, or that the Plaintiff has suffered 

any damage,‟ in the Offer of Judgment [, which] 

is a statement that disclaims plaintiff as a 

“prevailing party” under Buckhannon 

principles;

(3) „[I]f accepted, this litigation will be resolved 

in its entirety,‟ in the email conveying the Offer, 

[which] further confirms that Newark‟s offer 

precludes additional litigation regarding 

whether Plaintiff is a “prevailing party” to earn 

an attorney‟s fee award;

Id. For these reasons, the District Court held that the “Offer 

of Judgment, as accepted, is inclusive of costs and fees.” Id.

at 4.
9

II

The District Court had jurisdiction over Lima‟s federal 

claims under 28 U.S.C. § 1331 and supplemental jurisdiction 

over his state law claims under 28 U.S.C. § 1367(a). Lima 

timely appealed the final order of the District Court and we 

have jurisdiction over the appeal pursuant to 28 U.S.C. § 

1291.

“We have plenary review over both legal questions 

regarding the interpretation of Rule 68 and the construction of 

the offer of judgment.” Le v. Univ. of Pa., 321 F.3d 403, 

406 (3d Cir. 2003).

III

A

Rule 68 permits a defendant to include all fees and costs in 

an offer of judgment. The rule states, in relevant part:

(a) Making an Offer; Judgment on an 

Accepted Offer. 

More than 10 days before the trial 

begins, 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 10 days 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. 
10

FED. R. CIV. P. 68 (2009) (italics added).

1

In Marek v. Chesney, 473 U.S. 1 (1985), the Supreme 

Court explained that the phrase “with the costs accrued” 

means that (1) where the underlying statute defines “costs” to 

include attorney‟s fees (as § 1988 does), those fees are 

included as costs for purposes of Rule 68, id. at 10, and (2) 

defendants can make lump sum offers that do not distinguish

between the claim and the costs, id. at 6. The Court 

explained:

The critical feature of [the portion of Rule 68 

stating that a defendant may make an offer 

“with costs then accrued”] is that the offer be 

one that allows judgment to be taken against the 

defendant for both the damages caused by the 

challenged conduct and the costs then accrued. 

In other words, the drafters‟ concern was not so 

much with the particular components of offers, 

but with the judgments to be allowed against 

defendants. If an offer recites that costs are 

included or specifies an amount for costs, and 

the plaintiff accepts the offer, the judgment will 

necessarily include costs; if the offer does not 

state that costs are included and an amount for 

costs is not specified, the court will be obliged 

by the terms of the Rule to include in its 

judgment an additional amount which in its 

discretion, it determines to be sufficient to cover 

the costs . . . . 

 

1 Rule 68 was amended December 2009 to change the 

timeframe from 10 to 14 days.
11

Id. (italics in original, underline added).

In Le v. University of Pennsylvania, 321 F.3d 403 (3d 

Cir. 2003), we had occasion to apply Marek to a Rule 68 offer 

of judgment. There, we stated: “the Supreme Court . . . found 

that „[a]s long as the offer does not implicitly or explicitly 

provide that the judgment does not include costs‟ an offer is 

valid and presumes the defendant will pay costs.” Id. at 409 

(quoting Marek, 473 U.S. at 6) (alteration in original). 

Accordingly, we held that a Rule 68 offer of judgment “for 

the total amount of $50,000, plus costs then accrued” 

unambiguously stated an offer of $50,000 plus costs to be 

determined by the court because the “plain language of the 

offer dictates the result,” even though another part of the offer 

stated that “„the offer [of $50,000 plus costs] shall represent 

and fix the total liability of the [defendants] for any and all of 

plaintiff‟s loss, claims, damages, costs, attorneys‟ fees, or any 

other amounts or expenses recoverable, or potentially 

recoverable, in this action.‟” Id. (alterations in original).

Le‟s holding was based on Marek and on principles 

embodied in our prior cases interpreting settlement offers, 

decided both before and after Marek. Before Marek, we held 

that a suit for attorney‟s fees is foreclosed only when 

expressly stipulated in the settlement agreement: “If the 

parties cannot agree on counsel fees and the losing party 

wishes to foreclose a suit . . . for attorneys fees, it must insist 

that a stipulation to that effect be placed in the settlement 

agreement.” El Club Del Barrio, Inc. v. United Cmty. Corps., 

735 F.2d 98, 101 (3d Cir. 1984). We rejected a “silence 

equals waiver” rule and held that “extrinsic evidence such as 

the course of negotiations” is irrelevant. Id. at 100. See also

Torres v. Metro. Life Ins. Co., 189 F.3d 331, 333 (3d Cir. 

1999) (applying the same rule post-Marek).
12

After Marek was decided, we considered whether a 

plaintiff was entitled to attorney‟s fees under § 1988 

following a non-Rule 68 settlement offer. Ashley v. Atl.

Richfield Co., 794 F.2d 128 (3d Cir. 1986). In Ashley we 

noted:

Where the plaintiff does so prevail, however, in 

the absence of an express waiver, she will be 

deemed to have retained her statutory right to an 

award of reasonable attorney‟s fees. Therefore, 

where a defendant seeks to settle its total 

liability on a claim, it shall be incumbent upon 

the defendant to secure an express waiver of 

attorney‟s fees. Silence will not suffice.

Id. at 138-39. Although the settlement offer in Ashley did 

disclaim liability for “costs,” we held that it was not 

controlled by Marek because the settlement offer was not 

made pursuant to Rule 68. Id. at 140-41 (citing Marek, 473 

U.S. at 6).

Similarly, in Torres we held that a plaintiff was 

entitled to attorney‟s fees after a non-Rule 68 settlement 

agreement, despite an extensive release of 

all claims, charges, or demands asserted or 

assertable in the Pending Lawsuit, and all 

claims, charges, or demands arising from or 

relating to Plaintiff's relationship of any kind 

with the Released Parties, including without 

limitation any rights or claims Plaintiff may 

have under Title VII of the Civil Rights Act of 

1964, as amended, and the Civil Rights Act of 

1991.
13

189 F.3d at 333. We determined that this language did not 

“„clearly‟ waive plaintiff‟s right to attorney‟s fees.” Id. at 

333 n.3 (quoting El Club Del Barrio, 735 F.2d at 99). We 

also held that the “clear import of El Club Del Barrio and 

Ashley is that it does not matter whether the parties discussed 

the issue of attorney‟s fees or believed the settlement 

agreement waived such a claim. All that matters is whether 

the agreement expressly stipulates that the prevailing party‟s 

claim for fees is waived. If it does not, then the claim 

survives.” Id. at 334.

Our sister courts of appeals have read Marek to require 

that a Rule 68 offer of judgment must explicitly state that 

costs are included; otherwise those costs must be determined 

by the court. See McCain v. Detroit II Auto Fin. Ctr., 378 

F.3d 561, 564 (6th Cir. 2004) (holding that defendant‟s 

“silence on the subject of costs in its Rule 68 offer means that 

true costs are recoverable,” although attorney‟s fees were not 

recoverable because the operative statute did not classify 

them as costs); Nordby v. Anchor Hocking Packaging Co., 

199 F.3d 390, 391-93 (7th Cir. 1999) (“[A]mbiguities in Rule 

68 offers are to be resolved against the offerors,” but the 

instant offer—for “judgment in the amount of $56,003.00 

plus $1,000 in costs as one total sum as to all counts of the 

amended complaint” was unambiguous and therefore 

included costs and fees.); Webb v. James, 147 F.3d 617, 622 

(7th Cir. 1998) (“[T]he effect of Marek is clear. Rule 68 

offers must include costs. If the offer is silent as to costs, the 

court may award an additional amount to cover them. Where 

costs are defined in the underlying statute to include 

attorney‟s fees, the court may award fees as part of costs as 

well.”); Erdman v. Cochise County, 926 F.2d 877, 879-81

(9th Cir. 1991) (holding that a defendant‟s drafting error 
14

failing to explicitly include fees would be held against it and 

plaintiff could seek additional award of fees); Arencibia v. 

Miami Shoes, Inc., 113 F.3d 1212, 1214 (11th Cir. 1997) 

(“The Supreme Court has held that when a Rule 68 offer is 

silent as to costs, the district court should award appropriate 

costs in addition to the amount of the offer.”).

In sum, a valid Rule 68 offer of judgment necessarily 

includes costs and attorney‟s fees either explicitly or 

implicitly. When the costs are stated explicitly in the offer of 

judgment, the offeror is not subject to any additional liability. 

When, however, the offer of judgment is silent as to fees and 

costs, they must be fixed by the court after the offer of 

judgment is accepted. Extrinsic evidence of the parties‟ 

subjective intent is not admissible to determine whether a 

Rule 68 offer of judgment includes costs.

B

Here, the District Court found that Newark‟s Offer 

included attorney‟s fees because it “was not silent as to 

costs.” In concluding that Newark “used three different 

phrases to state that the offer was a lump sum, single offer to 

cover all claims in the case and end the litigation while 

specifically disclaiming any liability,” the District Court was 

influenced by improper considerations and misread the plain 

language of the Offer. Lima, No. 08-426 at 3. Although the 

District Court‟s conclusion is understandable inasmuch as it 

is possible that Newark intended attorney‟s fees to be 

included in the Offer, we hold that the District Court 

committed an error of law because the Offer did not explicitly 

include attorney‟s fees or costs.
15

As an initial matter, we note that the District Court 

erred by considering evidence extrinsic to the Offer in 

violation of El Club Del Barrio, 735 F.2d at 100, and by 

considering the subjective intentions of the parties in 

violation of Torres, 189 F.3d at 333. The District Court 

found that the phrase “„if accepted, this litigation will be 

resolved in its entirety,‟ in the email conveying the Offer, 

further confirms that Newark‟s offer precludes additional 

litigation regarding whether Plaintiff is a „prevailing party‟ to 

earn an attorney‟s fee award.” Lima, No. 08-426 at 3

(emphasis added). This was error because an email to which 

the Offer is attached is extrinsic to the Offer; it does not 

inform whether the Offer itself explicitly includes fees and 

costs. El Club Del Barrio, 735 F.2d at 100.

In fact, the complete sentence from the email 

conveying the offer—“The City makes this offer with the 

intention and expectation that, if accepted, this litigation will 

be resolved in its entirety.”—describes Newark‟s “intention 

and expectation,” not a term of the Offer. The parties‟ 

subjective intentions and expectations are not proper factors 

to consider when interpreting an offer of judgment. See 

Torres, 189 F.3d at 334 (The “clear import of El Club Del 

Barrio and Ashley is that it does not matter whether the 

parties discussed the issue of attorney‟s fees or believed the 

settlement agreement waived such a claim. All that matters is 

whether the agreement expressly stipulates that the prevailing 

party‟s claim for fees is waived. If it does not, then the claim 

survives.”). For the same reason, we give no weight to 

Newark‟s argument that various Newark principals filed 

affidavits stating that they intended fees to be included, while 

Lima did not file any affidavits as to his subjective 

understanding of the offer at the time he accepted it. 
16

Appellee Br. 28-30 (“[Q]uite simply, neither Plaintiff nor his 

counsel ever said anything about what they believed the Offer 

of Judgment meant, or did not mean. No one ever said they 

believed it included costs, or that it did not include costs.”). 

Neither the email accompanying the Offer nor the affidavits 

can be considered because they are extrinsic evidence of the 

subjective intentions of a party.

Perhaps influenced by these improper considerations, 

the District Court erred in its reading of the Offer. The Court

determined that the phrase “„Judgment to be entered against 

these defendants in this action in the amount of $55,000, 

including all of Plaintiff‟s claims for relief against all 

defendants,‟ in the Offer of Judgment, explicitly covers 

Prayer for Relief subpart (c) in the Complaint which claims 

the following relief: „(c) attorney‟s fees and costs associated 

with this action.‟” Lima, No. 08-426 at 3. Thus, the District 

Court found that “claims for relief” included the “Prayer for 

Relief,” even though the “Prayer for Relief” was not part of a 

particular claim or count in the complaint.

As a matter of law, it cannot be said that the 

ambiguous, catchall phrase “all of Plaintiff‟s claims for 

relief” explicitly covers attorney‟s fees and costs. For that 

reason, it does not fulfill the requirement established by El 

Club Del Barrio, Marek, and Torres. Nor is it the most 

reasonable reading of the phrase in light of Supreme Court 

precedent. A request for attorney‟s fees under § 1988 is 

collateral to the main cause of action and attorney‟s fees 

cannot “fairly be characterized as an element of „relief‟ 

indistinguishable from other elements.” White v. N.H. Dep’t

of Emp’t Sec., 455 U.S. 445, 452 (1982). “Unlike other 

judicial relief, the attorney‟s fees allowed under § 1988 are 

not compensation for the injury giving rise to an action. 
17

Their award is uniquely separable from the cause of action to 

be proved at trial.” Id.

The District Court also found that the phrase “„[t]his . . 

. is not to be construed as either an admission that any of the 

defendants are liable in this action, or that the Plaintiff has 

suffered any damage,‟ in the Offer of Judgment is a statement 

that disclaims plaintiff as a „prevailing party‟ under 

Buckhannon principles.” Lima, No. 08-426 at 3; see

Buckhannon Bd. & Care Home, Inc. v. W. Va. DHHS, 532 

U.S. 598, 603 (2001). The District Court reasoned from this 

standard disclaimer of liability that “an application for 

attorneys‟ fees in this case would require significant 

additional litigation to determine whether, under the standards 

developed in [Buckhannon] and Truesdell v. Philadelphia 

Housing Authority, 290 F.3d 159 (3d Cir. 2002), Lima would 

be considered a „prevailing party‟ entitled to an award of 

attorneys‟ fees in this case.” Lima, No. 08-426 at 4. In 

making this determination, the District Court once again 

appears to have been influenced by Newark‟s intentions—

namely to conclude the litigation—from which it reasoned 

that Newark could not have meant to leave open the 

possibility of further litigation regarding Lima‟s status as a 

prevailing party. Those intentions should not have been 

considered, and absent that consideration, we cannot say that 

the disclaimer of liability was an explicit statement that the 

Offer included fees and costs.

A “„prevailing party‟ is one who has been awarded 

some relief by the court.” Buckhannon, 532 U.S. at 603. “To 

be eligible to make a prevailing-party claim under § 1988, the 

plaintiff must, „at a minimum, ... be able to point to a 

resolution of the dispute which changes the legal relationship 

between itself and the defendant.‟” Singer Mgmt.
18

Consultants, Inc. v. Milgram, --- F.3d ----, 2011 WL 

2342733, at *4 (3d Cir. 2011) (en banc) (quoting Tex. State 

Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 

792 (1989)). “The fact that [a party] prevailed through a 

settlement rather than through litigation does not weaken her 

claim to fees.” Maher v. Gagne, 448 U.S. 122, 129 (1980). 

“Nothing in the language of § 1988 conditions the District 

Court‟s power to award fees on full litigation of the issues or 

on a judicial determination that the plaintiff‟s rights have 

been violated.” Id. Whether one was the prevailing party 

depends on whether the resolution resulted in a “judicial 

action,” Singer, --- F.3d ----, 2011 WL 2342733, at *4, that 

effected a “material alteration of the legal relationship of the 

parties,” Truesdell, 290 F.3d at 163 (quoting Tex. State 

Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 

792-93 (1989)). “„[T]he degree of the plaintiff‟s overall

success goes to the reasonableness of the award . . . not to the

availability of a fee award vel non.‟” Truesdell, 290 F.3d at

166 (quoting Tex. State Teachers, 489 U.S. at 782). Thus, the 

Offer‟s disclaimer of liability does not establish that it

included fees and costs, particularly because Lima‟s status as 

a putative prevailing party was to be made after the District 

Court determined whether the Offer included fees, and should 

not have been considered in making that determination in the 

first instance. Id.

Here, the Offer was valid and was silent as to fees and 

costs. That fact begins and ends our analysis. In interpreting 

a Rule 68 offer of judgment, courts must not consider 

extrinsic evidence or the intentions of the parties. Nor can 

they allow their awareness of such irrelevant facts to 
19

influence their interpretations of the plain language of the 

Offer.2

 

2 Newark argues that even if the District Court erred, 

Lima waived his right to appeal because he invited the error. 

After the Offer had been accepted, and while the parties were 

disputing the issue of attorney‟s fees, they also disagreed 

about whether Lima should undergo an independent medical 

examination. In a joint letter regarding re-scheduling the 

independent medical examination, Lima wrote:

Plaintiff will receive either (a) $55,000 in toto

or (b) $55,000 plus reasonable costs and 

attorneys [sic] fees. Though Defendants offered 

to withdraw the Offer following Plaintiff‟s 

acceptance, Plaintiff declined, willing to accept 

either possibility as ordered by the Court.

The doctrine of “invited error” refers to “[a]n error that a 

party cannot complain of on appeal because the party, 

through conduct, encouraged or prompted the trial court to 

make the erroneous ruling.” BLACK‟S LAW DICTIONARY 622 

(9th ed. 2009). That is to say, “[w]hen a litigant takes an 

unequivocal position at trial, he cannot on appeal assume a 

contrary position simply because the decision in retrospect 

was a tactical mistake, or perhaps a candid but regretted 

concession.” Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 

116-17 (3d Cir. 1992). Lima‟s representation in the joint 

letter was neither “an unequivocal position” on this issue nor 

an invitation to the District Court to rule against him. 

Therefore, Lima did not waive the issue or invite the District 

Court‟s error.
20

IV

For the foregoing reasons, we will reverse the order of 

the District Court and remand the matter for a determination 

of reasonable attorney‟s fees and costs pursuant to 42 U.S.C. 

§ 1988.