Marek v. Chesney – Case Brief
Marek v. Chesney, 473 US 1 (1985).
Facts: Marek (D) and two other defendants were police officers. The officers killed Chesney’s (P) son in the course of a response to a domestic disturbance call.
Chesney filed suit against the officers under 42 USC § 1983 and state tort law. Chesney made a timely offer for settlement of $100,000 prior to trial. D rejected the offer and P was awarded $5,000 on the wrongful death claim, $52,000 for the violation under 42 USC § 1983, and $3,000 in punitive damages. P entered a request for $171,692.17 for costs and attorneys’ fees under Rule 68.
D opposed the claim based on FRCP 68, which shifts the costs incurred subsequent to a settlement offer which are not exceeded by the amount of the ultimate recovery. D argued that “costs” under Rule 68 included attorneys’ fees. The judge denied post-offer costs and P appealed. The Court of Appeals reversed, rejecting what it termed the mechanical linking of Rule 68 to 42 USC § 1988. It stated that while the District Court’s reading was logical, Congress would not have wanted the effectiveness of 1988 blunted because of a little known rule of court. The Supreme Court granted certiorari.
Issue: 1) Does the term “costs” under Rule 68 include attorneys’ fees awardable under 42 U.S.C. 1988? 2) Do attorney’s fees incurred by a plaintiff subsequent to an offer of settlement under FRCP 68 have to be paid under 42 U.S.C. 1988 when the plaintiff recovers a judgment less than the offer?
Holding and Rule (Burger): 1) Yes. The term “costs” under Rule 68 includes attorney’s fees awardable under 1988. 2) No. Attorneys’ fees incurred by a plaintiff subsequent to an offer of settlement under FRCP 68 do not have to be paid under 42 U.S.C. 1988 when the plaintiff recovers a judgment less than the offer.
Rule 68 provides that if a timely pretrial offer of settlement is not accepted and judgment is not more than the offer, the offeree must pay the costs incurred after the making of the offer. P sued under 42 U.S.C. 1983, and under section 1988 a prevailing party may be awarded attorney’s fees as part of the costs. The court stated that the drafters of Rule 68 were aware of the American Rule regarding attorney fees and aware that statutes were capable of defining costs to include attorney’s fees. The reasonable inference then is that the term “costs” in Rule 68 was intended to refer to all costs properly awardable under the relevant substantive statute or other authority.
Rule 68 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. This policy favors neither plaintiffs nor defendants and expresses a clear policy favoring settlement of all lawsuits. The court held that because of this neutrality it saw no reason why Civil Rights plaintiffs who reject a settlement offer more favorable than what is recovered at trial should be treated any differently.
Dissent (Brennan): “Costs” has a well settled meaning and in the context of the federal rules should be interpreted uniformly in accordance with the definition of costs set forth in 28 U.C.C. 1920. When Federal Rules are intended to encompass attorney’s fees, they do so explicitly. Eleven different provisions of the Rules authorize a court to award attorney’s fees as “expenses” demonstrating that the drafters knew the difference and intended there be a difference between “expenses” and “costs”.