Miller v. City of Portland

Defendant’s Rule 68 offer of judgment resulted in a binding contract whereby plaintiff was to receive reasonable attorney fees to be awarded by the court; consequently, court could not revisit whether fee award was permitted, only what sum would be reasonable.  Plaintiff accepted defendant’s Rule 68 offer of judgment in an action under 42 USC 1983.  The offer was of $1,000 in damages plus “reasonable attorney fees to be awarded by the court.”  When the plaintiff applied to the court for a fee award, he was denied because, the court found, his $1,000 recovery was de minimis, not warranting a fee award under 42 USC 1988.  Held, reversed.  When plaintiff accepted the Rule 68 offer, a contract was formed, and that contract provided for an award of reasonable attorney fees by the court without reference to whether fees would otherwise have been recoverable.  Hence, the only question for the court to decide on the fee motion was how much to award, not whether any statute permitted a fee award apart from the parties’ contract.

Ninth Circuit Court of Appeals (Tashima, J.); August 22, 2017; 2017 WL 3597012

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