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NRCP 68 and Nevada Offers of Judgment

Posted by: on Wed, Jan 07, 2015

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In Fleischer v. August, 103 Nev. 242, 737 P.2d 518 (1987), the Nevada Supreme Court held that an offeree was not entitled to seek additional costs after accepting an offer of judgment
which expressly stated that it included costs.  The offer was for “fifty
thousand dollars ($50,000), just as in the case at bar, plus costs.
Despite the offeror’s counsel stating that the offer of judgment was for a flat
sum, the offeree filed and served a notice of acceptance of the offer and a
memorandum of costs and a proposed judgment which included costs the amount of
$4,958.24 on top of the $50,000.

 

The district court in Nevada entered the judgment submitted and the appeal ensued.  The offeree contended that the offer had to be for $50,000 plus the costs.  The
offeror argued that the specific wording of the Offer of Judgment was clear and
unambiguous and was even clarified later in a phone conversation.  The
court agreed with the offeror.

 

The Nevada Supreme Court relied upon authority from the United States Supreme Court in Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 87 L.Ed. 2d 1 (1985), wherein the Supreme Court had held that if an offer of judgment recites that costs are included or
specified in a particular amount, and the plaintiff accepts the offer of
judgment, then the judgment will necessarily include the costs.  Only
where the offer of judgment does not state that costs are included or indicate
the specific amount of costs will the court determine the costs.

 

The Nevada Court agreed with the U.S. Supreme Court that a defendant would be reluctant to make an offer of judgment under Rule 68 if he were not allowed to make an offer that would
represent his total liability and the specific terms included if later accepted.  Likewise, carried to other scenarios, a defendant would be reluctant to make an offer of judgment contingent on a dismissal of the other defendants if the plaintiff could simply later move to add new defendants or retain all of the original defendants, in spite of the clear language to the contrary
contained in the offer of judgment.  The policy of Rule 68 is to encourage
settlements, particularly after an acceptance, and such judgments should not be
lightly set aside by the trial courts.

 

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