United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
April 5, 2018, Plaintiff filed an “Acceptance of
Judgment Pursuant to Fed.R.Civ.P. 68” [ECF No. 166] in
this case. The Court heard the matter on May 17,
Rule 68 provides, in pertinent part,
If, within 14 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.
its Acceptance, Plaintiff filed a copy of the Offer of
Judgment, which provides:
This Offer is expressly conditioned, pursuant to Fed.R.Civ.P.
68, upon the voluntary dismissal with prejudice of all other
individual Defendants in this action (including Christopher
Dickey, JJ Rouanzoin, Jeremy Jenkins, and Michael Diener).
Offer ¶ 3, ECF No. 166-2. The following day, the Court
issued an order denying as moot the Plaintiff's pending
Motion to Amend and concluding, “Judgment pursuant to
Fed.R.Civ.P. 68(a) will be entered at the final resolution of
this case.” Order, ECF No. 167. In so concluding and in
consideration of paragraph 3 of the Offer of Judgment, the
Court anticipated the filing of a notice of voluntary
dismissal of the individual Defendants in this case. Instead,
the Defendants filed the present opposed motion to dismiss
the individual Defendants with prejudice from this case.
opposing the motion, Plaintiff argues that if the individual
Defendants are dismissed, the Court will lose jurisdiction
over these Defendants and, should Commerce City “breach
the terms of its offer, ” Plaintiff will lose the
ability to “seek recourse.” Resp. 1. The Court is
Martinez v. Red's Towing, No. 14-cv-00458-KLM,
2015 WL 328304, at *5 (D. Colo. Jan. 23, 2015), Magistrate
Judge Mix cited a persuasive opinion from the Eastern
District of California:
An offer under Rule 68, “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.” [citation omitted]. “[A]
party who simply misunderstands or fails to predict the legal
consequences of his deliberate acts cannot later, once the
lesson is learned, turn back the clock to undo those
mistakes.” Latshaw [v. Trainer Wortham
& Co., Inc.], 452 F.3d [1097, ] 1102 [(9th Cir.
2006)] (quoting Yapp v. Excel Corp., 186 F.3d 1222,
1231 (10th Cir. 1999).
Id. (quoting Chatman v. Tyner, No.
1:03-cv-06636-AWI-SMS PC, 2010 WL 2867845, at *1 (E.D. Cal.
July 21, 2010). Notably, in Red's Towing, Judge
Mix issued an order during the litigation finding, “If
a plaintiff seeks to attack an offer of judgment after a
notice of acceptance is filed, but before judgment has
actually entered on the matter, ‘the formally more
proper way to approach the problem would be to allow judgment
to be entered and attack the judgment under Rule
60(b)....'” 2015 WL 328304 at *2 (quoting 12 C.
Wright, A. Miller, R. Marcus, Federal Practice &
Procedure § 3004); see also Richardson v. Nat'l
R.R. Passenger Corp., 49 F.3d 760, 765 (D.C. Cir. 1995)
(stating that “the proper way to proceed ... is for the
Defendant to attack the judgment produced by the Rule 68
offer-which upon acceptance is to be automatically entered by
the clerk-under Rule 60”).
citing the Red's Towing opinion here, the Court
does not intend to express or imply that Plaintiff made a
“mistake” in accepting the offer; rather, the
Court concludes that Plaintiff may not simply determine that
one of the offer's terms is no longer
“acceptable” to him once he has filed an
acceptance. See Miranda v. Receivables Performance Mgmt,
LLC, No. 12-cv-02507-MSK, 2013 WL 3958367, at *2 (D.
Colo. Aug. 1, 2013) (“. . . a Rule 68 offer differs
from the typical offer-it has an operative effect regardless
of whether it is accepted or declined and it is not generally
subject to counteroffer or negotiation . . .”). In
addition, if a problem arises with the judgment once entered,
the Plaintiff may attack the judgement under Fed.R.Civ.P. 60.
does not argue that the Defendants engaged in misconduct in
submitting the offer, nor that he was coerced to accept the
offer or, otherwise, executed the acceptance involuntarily.
The Court concludes that, as the offer appears to have been
accepted knowingly and voluntarily, the terms of the offer
should be duly executed.
Defendant's Motion for Forthwith Ruling to Dismiss
Individual Defendants Pursuant to Rule 68 Offer Terms
[filed April 16, 2018; ECF No. 168] is
granted. Plaintiffs claims against the
individual Defendants in this case are dismissed with
prejudice. In addition, the Clerk of the Court shall enter