This guest post is from the colleagues of our Butler Snow bloggers, written by Beth Roper, Megan Donaldson, and Denise Lee. It first appeared in their firm online publication “Pro Te Solutio.” Bexis read it and thought it would make a worthy addition to the Blog, and they graciously agreed. Our authors collaborated to collect the law from all 50 states on offers of Judgment. As always, our guest bloggers deserve all the credit (and any blame) for their efforts.
**********
Most states have an offer of judgment provision, and many of them are patterned after Federal Rule of Civil Procedure 68 (Maryland, Illinois, New Hampshire, Ohio, Pennsylvania, and Virginia are the exceptions without such provisions). Unlike Fed. R. Civ. P. 68, some states allow either party—not just the defendant—to make an offer of judgment. Even more significantly, a few states also allow a rejected offer to serve as an independent basis for an award of attorney’s fees. Federal courts in diversity cases do not always apply state statutes, but in some cases, these statutes have been deemed substantive and have been applied in federal court. See Spencer v. Ottosen Propellar & Accessories, Inc., 2019 WL 1090776, at *2 (D. Alaska Jan. 15, 2019)) (holding Alaska R. Civ. P. 68 was substantive law and thus to be applied in federal cases based on diversity jurisdictions); Zamani v. Carnes, 2009 WL 2160569, at *3 (N.D. Cal. July 20, 2009) (“Although [Cal. Code. Civ. P. 998] is a state rule, offer of judgment rules appear to be ‘substantive’ for Erie purposes.”); Am. Home Assurance Co. v. Weaver Aggregate Transport, Inc., 89 F. Supp.3d 1294 (M.D. Fla. 2015) (applying the Florida’s offer of judgment statute); Wheatley v. Moe’s Southwest Grill, LLC, 580 F. Supp.2d 1324 (N.D. Ga. 2008) (applying Georgia’s offer of judgment rule).
Recovery of attorney’s fees is one of the most significant factors that increases the value of making an offer of judgment. In this survey, we first address states that allow attorney’s fees after a rejected offer—although some of these statutes only allow for a limited fee collection. We then discuss offers of judgment that are more like Fed. R. Civ. P. 68, permitting awards of costs only.Continue Reading Guest Post − A 50 State Survey of State Law Concerning Offers of Judgment