APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Rya W. Zobel, U.S. District Judge.
Marsha V. Kazarosian, with whom Kazarosian Costello & O'Donnell LLP was on brief, for appellant.
Raquel D. Ruano, with whom Charles D. Boddy was on brief, for appellee City of Lawrence.
Andrew J. Gambaccini for appellee John Romero.
Before Thompson, Circuit Judge, Souter, [*] Associate Justice, and Barron, Circuit Judge.
BARRON, Circuit Judge.
Federal Rule of Civil Procedure 68 allows a party defending against a claim to make an offer of judgment that, if accepted within 14 days, must be enforced upon the filing of the offer, the acceptance, and proof of service. Fed.R.Civ.P. 68. In so providing, the Rule describes the offer that may be made under the Rule as one "to allow judgment on specified terms, with the costs then accrued." Id. The dispute in this case turns largely on that last phrase -- "with the costs then accrued" -- and the significance that should be attributed to it.
The offeror here, the City of Lawrence ("the City"), is defending in a civil rights action brought by a plaintiff who was sexually assaulted by one of the City's police officers. Prior to trial, the City made a Rule 68 offer of judgment for $300, 000 that was silent as to whether that amount was inclusive of the plaintiff's costs or not. Then, within the 14-day period for acceptance, the City attempted to clarify its offer by sending an "amended" offer of judgment that contained the same language as the first offer with an additional sentence stating that the offer was "also inclusive of any costs and fees incurred to date, including attorney's fees." Following this attempted clarification, but before the 14-day period expired, the plaintiff purported to accept the unamended version of the offer. In communicating her acceptance to the City, she informed the City that she would be separately moving for fees and costs. The plaintiff then filed the unamended offer, her purported acceptance, and proof of service with the District Court.
The City moved to strike that filing on the ground that the plaintiff's acceptance was invalid. The District Court granted the motion. In reaching that conclusion, the District Court held that, in consequence of the City's purported clarification of the initial offer, there was no meeting of the minds between the parties as to any offer of judgment. The District Court thus proceeded to address the merits of the defendants' motion for summary judgment, which the District Court granted on the ground that the police officer was not acting "under color of state law" in committing the assault on the plaintiff.
The plaintiff now appeals. She contends that she was entitled to accept the City's original Rule 68 offer and to treat it as a complete offer exclusive of costs. She also contends that the District Court erred in granting summary judgment on the basis of its holding that the officer was not acting under color of state law. Because we agree with the plaintiff's first argument, we reverse and remand for entry of judgment in accordance with Rule 68.
The plaintiff is Coeurd'Alene LaPierre. Her lawsuit arose out of an incident in which she was sexually assaulted by
City Police Officer Kevin Sledge. Sledge was prosecuted for the incident and, in January 2011, was convicted of rape and three counts of indecent assault and battery. In September 2011, LaPierre sued Sledge, the City, and City Police Chief John Romero in Massachusetts Superior Court. Romero and the City removed the case to federal court in November of that year. Sledge never entered an appearance below, and default was entered against him.
On September 5, 2014, after the defendants had moved for summary judgment but before the District Court had ruled on that motion, the City sent a letter to LaPierre's counsel. That letter expressly purported to be an offer of judgment "[p]ursuant to Fed.R.Civ. P. 68." The letter stated that the City offered "judgment against the City of Lawrence and dismissal of all claims against any other Defendant in exchange for $300, 000 payable over three (3) years." ...