NRCP 68 and Nevada Offers of Judgment
Posted by: Mark Albright on Wed, Jan 07, 2015Share this post
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.
About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.
Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.