UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Antonio King,

Plaintiff

v. Civil No. 04-cv-356-SM

Opinion No. 2008 DNH 057

Cesar Rivas; Theresa Pendleton;

and James O’Mara, Jr.,

Superintendent of the

Hillsborough County

Department of Corrections,

Defendants

O R D E R

Antonio King, a former pretrial detainee in the Hillsborough

County House of Corrections (the “HOC” or “jail”), brought this

civil rights action against seven defendants, all associated with

the jail, for violating his constitutional rights. See 42 U.S.C.

§ 1983. Essentially, King claimed that Corrections Officer Cesar

Rivas falsely accused him of being part of a group of inmates

that rushed Rivas, apparently intent on taking him hostage, while

Rivas was making rounds on a cell block. According to King, as a

result of Rivas’s false accusation, the other defendants

physically assaulted him, subjected him to unfair prejudgment in

a disciplinary hearing, improperly and punitively reclassified

him to a more restricted status within the jail, and subjected

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him to abusive and unconstitutional conditions of confinement as

punishment for institutional rules violations he did not commit.

Prior to trial, King voluntarily dismissed his claims

against four of the seven named defendants. The case went to

trial against defendants Rivas, Pendleton, and O’Mara (in his

official capacity as superintendent of the jail). The jury

returned a verdict in King’s favor against Rivas, and awarded

King $1 in nominal damages and $500 in punitive damages. 

Verdicts were returned in favor of the two other defendants,

Pendleton and O’Mara.

The court granted plaintiff’s post-trial motion to set aside

the nominal damages award against Rivas, and ordered a new trial

on damages. Specifically, the court concluded that the verdict

was decidedly against the weight of the evidence and, based upon

the jury’s findings on liability, King was entitled to recover

compensatory damages for his established injuries (unwarranted

punishment). The parties stipulated to the $500 punitive award,

so the retrial was limited to compensatory damages. On retrial

the jury awarded King $5,000 in compensatory damages, making his

total recovery, exclusive of costs and attorney’s fees, $5,500. 

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King now seeks to recover his costs and attorney’s fees, as

a prevailing party in a civil rights action brought pursuant to

§ 1983. See 42 U.S.C. § 1988. Rivas and those defendants who

were either dropped from the suit or obtained favorable verdicts

at trial object, and themselves move for an award of costs and

attorney’s fees.

Background

This is one of several suits, arising out of the same

incident, brought by pretrial detainees at the Hillsborough

County House of Corrections against Corrections Officer Rivas,

Disciplinary Officer Theresa Pendleton, Jail Superintendent James

O’Mara, Jr., and others. In some cases verdicts were returned in

favor of the inmate(s) against just Rivas (this one); against

just Pendleton and O’Mara (Paladin and West v. Rivas, et al.,

Civil No. 05-cv-079-SM); and against all three (Surprenant v.

Rivas, 424 F.3d 5 (1st Cir. 2005)). In other cases, the parties

reached settlement agreements before trial.

This case was filed on September 22, 2004. Shortly

thereafter, on January 24, 2005, the defendants, in accordance

with the provisions of Fed. R. Civ. P. 68, extended a joint offer

of judgment, which provided: 

Case 1:04-cv-00356-SM Document 137 Filed 03/26/08 Page 3 of 25
1 The parties do not dispute the fact or terms of the Rule

68 offer, but only plaintiff provided a copy of the offer, and

that was an unexecuted draft version. The parties were directed

to file a copy of the original which has now been done. But, the

parties note that the original offer was intentionally

“unsigned.” Since plaintiff’s counsel and defendants’ counsel

agree that the unsigned offer, as filed, is “to be recognized by

the Court as the actual Offer of Judgment,” it will be so taken.

4

The defendant[s] offer[] judgment to be paid to the

plaintiff, Antonio King, in the amount of ten thousand

dollars ($10,000), exclusive of any attorneys fees and

costs accrued prior to this offer, the reasonable and

necessary character of which is to be determined by the

Court.

* * *

The Offer’s amount is to be in total settlement of this

action with said judgment herein to have no effect

whatsoever except in settlement of this case.

* * *

In the event of either the expiration or rejection of

this Offer, and should any amount ultimately recovered

by final judgment be less than ten thousand dollars

($10,000), exclusive of costs, the provisions of Rule

68 shall govern the allocation of costs and fees.1

Arguing that King recovered less than the amount offered,

defendants say he cannot recover either taxable costs or

attorney’s fees incurred after the date of the offer and, indeed,

under the cost-shifting provisions of Rule 68, he must pay

defendants’ taxable costs after that date. Defendants also seek

an award of attorney’s fees related to the retrial on damages,

apparently on grounds that plaintiff could have avoided the

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2 Stylistic changes to Rule 68 have since been made,

effective December 1, 2007.

5

inadequate damages award and the necessity of a retrial on

damages, had he objected to the jury instructions at the first

trial.

Discussion

I. Rule 68 Offer of Judgment and Defendants’ Costs and Fees.

When defendants extended their offer of judgment, Rule 68,

entitled “Offer of Judgment,” provided in pertinent part:

At any time more than 10 days before trial begins, a

party defending a claim may serve upon the adverse

party an offer to allow judgment to be taken against

him for the money or property or to the effect

specified in the offer, with costs then accrued . . . . 

If the judgment finally obtained by the offeree is not

more favorable than the offer, the offeree must pay the

costs incurred after the making of the offer.

Fed. R. Civ. P. 68 (emphasis supplied).2 

It is settled law in this circuit that “a plaintiff who

refuses an offer of judgment, and later fails to obtain a more

favorable judgment, must pay the defendants’ post-offer costs.” 

Crossman v. Marcoccio, 806 F.2d 329, 333 (1st Cir. 1986). The

obvious point of Rule 68 is to promote settlement of federal

civil litigation by encouraging parties to soberly consider the

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risks and costs of litigation and to exercise reasoned judgment

in weighing the likelihood of obtaining a greater recovery at

trial than the sum offered in settlement. Id. at 332 (citing

Marek v. Chesny, 473 U.S. 1, 5 (1985) (“The Rule prompts both

parties to a suit to evaluate the risks and costs of litigation,

and to balance them against the likelihood of success upon trial

on the merits.”)).

It is equally well-settled that “costs,” for purposes of

Rule 68, include attorney’s fees properly awarded to prevailing

parties in civil rights cases under 42 U.S.C. § 1988, as are

sought here. Marek, 473 U.S. at 5. And, “it is immaterial

whether the offer recites that costs are included, whether it

specifies the amount the defendant is allowing for costs, or, for

that matter, whether it refers to costs at all. As long as the

offer does not implicitly or explicitly provide that the judgment

not include costs, a timely offer will be valid.” Id. at 6.

Here, defendants made a timely offer of judgment that, at

least on one level, was fairly clear. King was offered judgment

in the amount of $10,000, plus taxable costs and reasonable

attorney’s fees he had incurred to date (as determined by the

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3 Plaintiff does not challenge the language used in the

offer and seemingly accepts that the words “exclusive of any

attorneys fees and costs accrued prior to this offer, the

reasonable and necessary character of which is to be determined

by the Court” are properly understood to mean that defendants

offered costs and fees accrued to date in an amount to be

determined by the Court, in addition to a $10,000 payment to

plaintiff.

7

court) in exchange for dropping all claims against all

defendants.3

The $5,500 judgment later obtained by King is plainly less

favorable than the $10,000 defendants jointly offered in

settlement under Rule 68. Accordingly, it would seem that Rule

68 operates to preclude King from recovering costs and attorney’s

fees incurred by him after the offer was extended, and imposes on

him the affirmative obligation to pay defendants’ costs incurred

after the offer was made. See Crossman, supra.

King seeks to avoid that result, however, on two grounds. 

First, he says the unapportioned joint offer under Rule 68 was

invalid, because it was imprecise, ambiguous, and not comparable

to the verdict he actually obtained against Rivas at trial. 

Second, he argues that the verdict he obtained is more favorable

than the joint offer because, although less in amount, the

verdict carries a valuable attribute — precedential value — which

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might prove useful in related plaintiffs’ cases, whereas the

settlement offer explicitly disclaimed liability.

Plaintiff’s latter argument lacks merit. Under Rule 68, an

offer of judgment is properly compared only to the judgment

finally obtained. Spencer v. General Elec. Co., 894 F.2d 651,

664 (4th Cir. 1990) (“a trial court should consider only the

terms of the ‘judgment finally obtained’ by the offeree, and

nothing more.”), overruled on other grounds by Farrar v. Hobby,

506 U.S. 103 (1992). To be sure, judgments that include

declarative or injunctive relief, in addition to damages, may

prove more favorable than a monetary offer, even though the

monetary recovery is less than was offered. See generally

Garrity v. Sununu, 752 F.2d 727, 731-32 (1st Cir. 1984). But

here, no injunctive or other equitable relief was obtained at

trial, and whatever preclusive effect King’s judgment might have

in other cases would not seem to add any measurable value to his

recovery. Neither the determination of liability on Rivas’s

part, nor plaintiff’s concomitant sense of vindication, is a

proper basis upon which to compare defendants’ Rule 68 offer and

the judgment obtained at trial. See, e.g., Jolly v. Coughlin,

1999 WL 20895 *8 (S.D.N.Y. January 19, 1999).

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Plaintiff’s first challenge, however, does have merit. King

says the unapportioned joint offer, made by all seven defendants,

is imprecise and cannot rationally be compared to the single

judgment obtained against Rivas alone. Because there is no way

to determine how the offer should be apportioned, either among

the seven defendants, or the various claims, he says it is

necessarily invalid: 

The question is not whether King’s $5,500 verdict is

greater than the $10,000 offer - it clearly is not. 

Rather, the question is whether King’s $5,500 verdict

against Rivas on Count 1 is greater than the part of

the $10,000 offer on behalf of all defendants for all

claims which was intended to settle the Count I claim

against Rivas. We do not know the answer to that

question and we cannot decipher the answer from

defendants’ unapportioned offer. 

Plaintiff’s memorandum (document no. 123) at 8 (emphasis in

original). 

Defendants’ offer of judgment was clear on one level: all

defendants sued by plaintiff offered, jointly, to settle all

claims, in toto, for $10,000 plus costs and attorney’s fees

accrued as of the date of the offer. The entire amount offered

was to be paid to King (not split between or among two or more

plaintiffs), and the offered amount was in settlement of all

claims brought against all defendants. But King is right to

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point out that the in toto offer cannot be apportioned among the

offerees on any basis other than speculation.

King points to precedent in which courts have, under

discrete circumstances, found unapportioned joint offers made

under Rule 68 to be invalid, because they were ambiguous and not

amenable to easy comparison to the plaintiff’s recovery at trial. 

Those cases vary in their approach, and some are easily

distinguishable. For example, in Gavoni, et al. v. Dobbs House,

Inc., 164 F.3d 1071 (7th Cir. 1999), a single defendant’s

unapportioned offer of $10,000 to three plaintiffs was held

invalid because the individual plaintiffs, who recovered a total

of $6,500 at trial (two plaintiffs recovered $2,000 each and the

third recovered $2,500), could not have assessed the

individualized values of the offer; they simply had no way of

knowing how much of the offered $10,000 each would receive, so

each plaintiff could not weigh the amount offered to her against

her own assessment of a likely recovery at trial. In this case,

however, King was the sole plaintiff. The entire amount offered

was to be paid to him in settlement of all of his claims.

In Johnston v. Penrod Drilling Co., 803 F.2d 867 (5th Cir.

1986), two defendants made a joint Rule 68 offer, which the

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plaintiff rejected. Plaintiff later settled with one defendant

and proceeded to trial against the second, obtaining judgment for

an amount less than the joint offer. The Fifth Circuit declined

to shift costs under Rule 68, primarily on equitable grounds. 

While, strictly speaking, under Rule 68, a partial settlement

amount should not be added to the judgment amount, and then that

total compared to the offer, still, given that the amount

recovered by plaintiff, when added to the settlement amount,

exceeded the Rule 68 offer, the Fifth Circuit was not inclined to

shift costs. After all, the plaintiff’s overall recovery was

more than the amount jointly offered in settlement. The court

also noted that the pre-trial settlement with one defendant

likely affected the trial dynamics in a substantial way — the

jury might have altered its assessment of plaintiff’s

contributory negligence had both defendants been found at fault. 

So, the court found, at least implicitly, that the later verdict

against one defendant could not be reliably compared to the joint

offer. Here, King faced no assertion of contributory negligence

and did not settle any claims with any of the named defendants

prior to trial.

The Seventh Circuit’s decision in Harbor Motor Co. v. Arnell

Chevrolet-Geo, Inc., 265 F.3d 638 (7th Cir. 2001), however,

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provides solid support for plaintiff’s position. In that case,

the court pointed out that because plaintiffs generally face

serious consequences if they reject an offer extended under Rule

68 (cost-shifting and possible loss of attorney’s fees), there

must be “a clear baseline from which plaintiffs may evaluate the

merits of their case relative to the value of the offer.” Id. at

647 (quoting Gavoni, 164 F.3d at 1076). In Harbor Motor Co., two

separate defendants, Arnell and the Post-Tribune, initially made

individual offers to settle a copyright infringement case — the

Post-Tribune offered $7,500 and Arnell $2,500 - which offers were

rejected. Subsequently, however, the two defendants made an

unapportioned joint Rule 68 offer to settle all claims in the

case for $20,100. That joint offer was rejected as well, and the

case went to trial.

At trial the Post-Tribune was granted judgment as a matter

of law before the case went to the jury, and a verdict was

returned against Arnell alone, in the amount of $12,500. In

declining to shift costs in favor of Arnell under Rule 68, the

Seventh Circuit concluded that there was:

no way to compare the $20,100 offer of judgment made

jointly by the Post-Tribune and Arnell with the $12,500

judgment that Harbor obtained against Arnell alone. 

For example, did the parties intend to apportion the

offer equally? Or did they envision another division,

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4 Even if a plaintiff prevailed against all offerees at

trial, it might still be necessary to apportion the offer to

determine which costs (possibly including fees) should be

shifted.

13

one more commensurate with their varying degrees of

responsibility?

Id. at 648.

The opinion in Harbor Motor Co. addresses the very problem

presented here. The joint unapportioned Rule 68 offer made by

the defendants to King is very difficult to compare to the

judgment King obtained against Rivas alone. The Seventh Circuit

noted that there may be circumstances in which a joint offer can

be reliably apportioned and then compared to a judgment against

one or more of the offerees. But, more often than not,

unapportioned joint offers, even those made to a single

plaintiff, will not effectively trigger cost-shifting under Rule

68 should the plaintiff prevail against only some of the offerees

at trial.4 The court concluded that:

We need not go as far as to conclude, however, that

Rule 68 always requires an exact delineation of the

manner in which damages are to be apportioned among

multiple parties. There might be circumstances where

it would be clear to the district court how a

settlement is to be shared among offerors and/or

offerees. This, however, is not such a case.

Id. at 649.

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Nor is this such a case. A critical problem here is that

the defendants were sued on different legal theories, based upon

discrete factual circumstances, and they were not jointly liable

to the plaintiff. As the jury’s verdict established, Rivas was

individually liable for making a false accusation designed to

effect the imposition of unwarranted punishment on plaintiff, a

pretrial detainee. But Disciplinary Officer Pendleton was found

not liable on an entirely different claim involving different

facts — that she deprived plaintiff of his right to due process

during the disciplinary proceedings that followed the false

accusation. And, Superintendent O’Mara was found not liable,

also under different factual circumstances, on yet another

different claim — that the jail imposed unconstitutional

conditions of confinement upon plaintiff.

Defendants Pendleton and O’Mara are entitled to recover

their costs not because plaintiff failed to obtain a judgment

against one or more of the seven offerees in an amount more

favorable than the joint amount offered, but because Rule 68 does

not apply to them. They prevailed on the merits and are entitled

to claim costs for that reason under Fed. R. Civ. P. 54. For

example, had plaintiff’s judgment against Rivas been $10,500

(i.e., more than the joint, unapportioned Rule 68 offer),

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Pendleton and O’Mara would hardly be called upon to pay part of

plaintiff’s attorney’s fees or costs related to his case against

Rivas under Rule 68, given their prevailing party status. Each

would justifiably point out that, under any conceivable

apportionment of the joint offer, plaintiff failed to obtain

judgment against either of them more favorable than the offer,

since he recovered nothing against them, and at least something —

some apportioned amount — was offered by each. And, as

prevailing parties, they would not be subject to the fee shifting

provisions of 42 U.S.C. § 1988.

Just as plaintiff is not entitled to recover attorney’s fees

under § 1988 incurred in bringing his claims against Pendleton

and O’Mara, he is entitled to recover attorney’s fees under §

1988 with respect to his claims against Rivas, because he

definitely is a prevailing party with respect to that case. 

Unless, that is, Rule 68 operates to shift the cost burden from

the date of Rivas’s offer through judgment. We know what the

judgment was — $5,500. But, we do not know what Rivas offered. 

Plainly, the joint offer of $10,000 was for all claims against

all defendants. And, just as plainly, under any conceivable

apportionment plaintiff did not obtain a more favorable judgment

against the other six defendants, since each was either dismissed

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or obtained a defendant’s verdict at trial. But some unknown

part of the joint offer is properly attributable to those claims,

and the remainder to the case against Rivas.

Put another way, suppose the offer is properly apportioned

as follows (and, of course, this is mere speculation): nothing

for the claims against the four dismissed defendants, and onethird of the $10,000 total ($3,333.33) for each of the three

defendants who went to trial (Rivas, Pendleton, and O’Mara). 

Under that circumstance, plaintiff’s judgment in the amount of

$5,500 was more favorable than the offer by Rivas, and he would

be entitled to recover his costs (including attorney’s fees) from

Rivas. As noted, Rule 68 does not apply to a defendant who

prevails, and § 1988 does not shift a plaintiff’s attorney’s fees

to a prevailing defendant. A prevailing party-defendant recovers

costs (and not just those incurred after the Rule 68 offer) by

operation of Rule 54.

To be sure, some courts have indicated a willingness to be

flexible in enforcing joint unapportioned offers made by multiple

defendants under Rule 68, at least where the defendants share an

identity of interests, and the sum offered is from a single

payor. For example, the Third Circuit, in Le v. University of

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Pennsylvania, 321 F.3d 403 (3d Cir. 2003), affirmed a district

court’s enforcement of an unapportioned joint Rule 68 offer made

to a single plaintiff. Le involved claims of discrimination and

retaliation by a professor against his employer, a University,

and his immediate faculty supervisor. The court thought it

important that the two defendants in that case “did not make an

offer to multiple plaintiffs, nor were there other amounts [i.e.,

settlements] besides the jury verdict to compare.” Id. at 408. 

Consequently, the court reasoned that “[plaintiff] knew from the

outset what amount would be compared with his future judgment.” 

Id. The Third Circuit also recognized that the two defendants

(plaintiff’s employer and his direct supervisor) shared a unique

relationship — the University’s and supervisor’s pocketbooks,

relative to that case, were one and the same:

The District Court found that dismissing [plaintiff’s]

claims against [the supervisor] was not fatal to the

offer of judgment because [plaintiff] could expect that

all costs would be borne by the University. 

Given the single identity of the defendants, failure to

apportion between the University and [the supervisor]

was not fatal to the offer. A decision to the contrary

could promote the addition of improper defendants so

that their eventual dismissal would negate any

legitimate Rule 68 offer made by the proper defendants. 

Likewise, the need to apportion between the retaliation

and discrimination claims is unnecessary where, as

here, only one plaintiff receives an offer pertaining

to both claims. The jury returned a verdict for

[plaintiff] on the retaliation claim, but not on the

discrimination claim. The offer applied to both claims

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in toto and the total judgment of $35,000 awarded can

easily be compared to the Rule 68 Offer of $50,000 plus

costs.

Id. at 408-09 (citation and footnote omitted).

Le is perhaps distinguishable on practical grounds. The

Third Circuit saw the discrimination and retaliation claims as

essentially brought against one defendant — the plaintiff’s

employer (the University) — who bore complete financial

responsibility for any judgment entered against either named

defendant.

A similar approach was taken by the district court in Jolly

v. Coughlin, 1999 WL 20895 (S.D.N.Y. 1999), under factual

circumstances similar to those found in this case. As here, the

plaintiff in Jolly, an inmate, named seven individuals associated

with the jail as defendants in a civil rights suit, brought

pursuant to 42 U.S.C. § 1983. Jolly sought damages and

injunctive relief for alleged violations of his constitutional

rights, related to the conditions of his confinement. Before

trial began, Jolly voluntarily dismissed claims against four

defendants, and proceeded to trial against the remaining three. 

The jury returned verdicts against two defendants (in amounts of

$5,000 and $25,000, respectively), and in favor of the third.

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Prior to trial the defendants made an unapportioned joint

offer under Rule 68 to settle the entire case for $30,360.

Because the recovery at trial ($30,000) was $360 less than had

been offered, defendants invoked the cost-shifting provisions of

Rule 68. Jolly objected, arguing that the unapportioned offer

was ineffective because, among other things, it was ambiguous. 

The district court enforced Rule 68’s cost-shifting provisions,

reasoning that the offer was in settlement of all claims of

injury and the jury’s verdict awarded damages for all of

plaintiff’s injuries. There was no issue of contributory

negligence, and plaintiff’s voluntary dismissal of some named

defendants did not affect either the scope of his injuries or the

jury’s award for those injuries. The court compared the combined

individual judgments obtained against two defendants to the

unapportioned offer made jointly by all seven originally named

defendants.

The Jolly court concluded that whether an offer of judgment

under Rule 68 can properly be compared to the judgment finally

obtained is a question that must be decided on the individual

facts of each case, and determined that:

On the facts of this case, the otherwise valid offer

should not be disregarded because the plaintiff

dismissed four defendants immediately prior to trial

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and did not prove his case with respect to a fifth

defendant. Both the offer of judgment and the verdict

present easily comparable sums and the comparison is

not confused by the fact that the verdict was

ultimately obtained against only two of the defendants

and several defendants were dropped from the case. To

find otherwise would greatly limit the effectiveness of

Rule 68 offers as a settlement tool because it would

give plaintiffs an incentive to join numerous

defendants only to drop one or two prior to trial to

avoid the effect of a Rule 68 offer. 

Jolly, 1999 WL 20895 at *7 (citing Stewart v. County of Sonoma,

634 F. Supp. 773, 776 (N.D. Cal. 1986)).

As the uneven precedent suggests, Rule 68 is not always easy

to apply. As circumstances vary, its application can become

unsure, or even impossible, or its application may be routine. 

The approach to Rule 68 enforcement taken in Jolly and Le is not

binding on this court, and I decline to follow it under the

circumstances of this case.

Requiring multiple defendants, who are not jointly liable,

to identify what portion of a joint offer applies to the case

against each of them, is not overly burdensome. If such

defendants expect to later invoke the cost-shifting provisions of

Rule 68, they each ought to make the anticipated future

comparison between judgment and offer as clear as possible. 

Obviously, having multiple parties on multiple sides of

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litigation is commonplace in federal courts, and unapportioned

global settlement offers are commonplace as well. Indeed, that

is the norm, and such offers undeniably play an effective role in

settling cases. But when such unapportioned joint offers are

rejected, defendants, particularly defendants who are sued under

independent legal and factual theories and who are not jointly

liable — and especially in civil rights or other cases where fees

are included as part of shifted costs under Rule 68 — should

apportion those joint offers, thereby permitting an accurate

comparison between any future judgment and the individual

defendant’s offer. I disagree with the Jolly court’s assessment

that “[t]o find otherwise would greatly limit the effectiveness

of Rule 68 offers as a settlement tool because it would give

plaintiffs an incentive to join numerous defendants only to drop

one or two prior to trial to avoid the effect of a Rule 68

offer.” Jolly, supra, at *7. Indeed, dropping named defendants

before trial would have no effect upon an apportioned joint Rule

68 offer because any later judgment(s) could be easily and

accurately compared to that portion of the joint offer

attributable to the defendant(s) against whom the plaintiff

prevails.

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The Seventh Circuit’s approach in Harbor Motor Co., is the

better one in my view. Rule 68 requires a discrete comparison —

the judgment ultimately obtained to the Rule 68 offer made. The

judgment against Rivas ($5,500) is not properly compared against

the aggregate offer made by seven defendants. Instead, it is

proper to compare that judgment against the amount offered by

Rivas alone under Rule 68. Rivas did make an offer of some

amount. But, was it more or less than $5,500? The circumstances

presented are not such that “it [is] clear to the district court

how [the] settlement [was] to be shared among [the] offerors,”

and, therefore Rule 68's cost shifting provisions cannot by

applied with respect to the plaintiff’s judgment against Rivas. 

Harbor Motor Co., 265 F.3d, at 649.

II. Defendants’ Fees and Costs as Prevailing Parties.

Defendants also seek their own costs for both the first and

second trials, as well as their attorney’s fees for the second

trial. A prevailing party is entitled to recover attorney’s fees

as part of costs in an action brought under § 1983. See 42

U.S.C. § 1988; Marek, 473 U.S. at 9. But civil rights

defendants, even though they might prevail at trial, are not

entitled to an award of attorney’s fees under § 1988 unless the

trial court determines that the plaintiff’s suit was frivolous,

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5 Parenthetically, the court notes that Defendants’

attempt to side-step Crossman by invoking Fed. R. Civ. P. 54(d)

and seeking only those fees incurred during the course of the

retrial on damages also fails. Rule 54, like Rule 68, does not

trump the developed law applicable in determining whether

attorney’s fees are properly awardable in civil rights cases. 

Id. 

23

unreasonable, or without foundation. Crossman, 806 F.2d at 334. 

Plaintiff’s case was hardly frivolous, unreasonable, or without

foundation. Indeed, he prevailed at trial against Rivas and

presented substantial evidence in support of his claims against

Pendleton and O’Mara — evidence that could easily have supported

verdicts against those defendants. And, the retrial on damages

was ordered because the jury’s nominal award was not legally

sustainable given the jury’s specific findings on liability. In

light of those findings, plaintiff was, as a matter of law,

entitled to an award of compensatory damages.5 That plaintiff

did not interpose an objection to the court’s instructions

regarding damages may have precluded his challenging those

instructions except for plain error, but the facts remain that it

is the court’s obligation to properly instruct. And, given the

jury’s liability verdict, plaintiff was entitled to compensatory

damages as a matter of law. Defendants are not entitled to, and

the court declines to award them attorney’s fees related to the

retrial on damages.

Case 1:04-cv-00356-SM Document 137 Filed 03/26/08 Page 23 of 25
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Conclusion

The defendants’ Rule 68 unapportioned joint offer of

judgment cannot be reliably compared to the judgment plaintiff

ultimately obtained at trial against Rivas alone. Accordingly,

the cost-shifting provisions of Rule 68 cannot be applied with

respect to that offer.

King, as the prevailing party in his case against Rivas is

entitled to recover taxable costs and attorney’s fees, but must

pay the taxable costs incurred by the other prevailing

defendants. King’s motion for attorney’s fees and costs

(document no. 123) is, therefore, granted in part and denied in

part. It is granted to the extent it seeks and award of

reasonable costs and attorney’s fees incurred with respect to his

case against Rivas. Defendants’ motion for costs and fees

(document no. 127) is likewise granted in part and denied in

part. It is granted to the extent that those defendants who

prevailed are entitled to an award of reasonable taxable costs

incurred, but denied as to Rivas. In all other respects,

including defendants’ request for attorney’s fees related to the

new trial on damages, the motion is denied. 

Case 1:04-cv-00356-SM Document 137 Filed 03/26/08 Page 24 of 25
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Plaintiff shall file or supplement any objections he might

have to the particular taxable costs sought by defendants within

ten (10) days of the date of this order. Defendants likewise may

file or supplement any specific objections they might have to

taxable costs and attorney’s fees claimed by plaintiff within ten

(10) days of the date of this order.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

March 26, 2008

cc: Michael J. Sheehan, Esq.

Elizabeth L. Hurley, Esq.

John A. Curran, Esq.

Case 1:04-cv-00356-SM Document 137 Filed 03/26/08 Page 25 of 25