Kubiak v. County of Ravalli
Once a party makes a settlement offer in the form of an offer of judgment under Federal Rule of Civil Procedure 68, they cannot withdraw it! In Kubiak v. County of Ravalli, 32 F.4th 1182, 1187-92 (9th Cir. 2022), the Ninth Circuit recently held that a Rule 68 offer of judgment remains open for 14 days, as provided by the federal statute.
The defendant (the “County”) presented the plaintiff Robert Kubiak with an offer of judgment while its motion for summary judgment was pending. The offer of judgment provided that the County would pay $50,000 to Mr. Kubiak, plus his attorneys’ fees and court costs. Shortly after the County conveyed this offer of judgment, the district court issued an order granting the County’s summary judgment motion. The order stated that a judgment would be entered in the County’s favor “in due course,” after the district court issued a reasoned opinion.
Approximately six minutes after entry of the order granting summary judgment, the County wrote to Kubiak’s counsel to stress that the offer of judgment was “withdrawn.” Within the next hour, Kubiak filed an acceptance of the offer of judgment with the district court. The County lodged an objection, yet the district court entered judgment in Kubiak’s favor, explaining that pursuant to Rule 68, it was bound by the offer of judgment.
The County appealed, but the Ninth Circuit affirmed the lower court’s judgment. The appellate court explained that Rule 68 is designed to function in a mechanical manner. Kubiak, supra, 32 F.4th at 1188. Once made, a Rule 68 offer of judgment cannot be retracted — it is either accepted by the other side within 14 days or it automatically expires when that time period has run.
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