Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wagner v. City of Omaha

United States District Court, Eighth Circuit

December 10, 2013

ROBERT WAGNER, Plaintiff,
v.
CITY OF OMAHA, et al., Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, District Judge.

This matter is before the court on plaintiff's motion for judgment on Rule 68 Offer and Acceptance, Filing No. 94, and the motion to strike motion for judgment on Rule 8 Offer filed by defendants City of Omaha, Jackie Dolinsky, and Aaron Pennington, Filing No. 98. Plaintiff alleges in his first amended complaint that the defendant officers used excessive force and failed to intervene in the use of force during his arrest at the Creighton University Medical Center on May 29, 2011. See Filing No. 64. Plaintiff also alleges that the City of Omaha has a policy and practice of not adequately investigating or disciplining police officers for excessive force. Plaintiff pleaded the following counts against each of the defendants: Count I, excessive force; Count II, conspiracy; Count III, failure to intervene; and Count IV, indemnification against the City of Omaha.

Plaintiff contends that on July 31, 2013, these three defendants served a Rule 68 Offer of Judgment on the plaintiff offering to allow judgment to be entered against "all or any one or more of them" on "one or more" of plaintiff's claims against them in the amount of $16, 000 plus costs and reasonable fees. Plaintiff argues that on August 12, 2013, he accepted the offer as to plaintiff's claim for failure to intervene against defendant Dolinsky. Pursuant to Rule 68, plaintiff filed a notice of offer and acceptance. Plaintiff contends that the Rule 68 Offer is clear and unambiguous. He argues that the plaintiff could choose to accept judgment against "any one" of these three defendants on "any one" of plaintiff's claims against the defendant for $16, 000, and that this language is in the disjunctive "or." The use of the disjunctive, argues plaintiff, allows him to choose judgment against all three defendants or just one or just two of them. See Utility Automation 2000, Inc. v. Choctawhatchee Elec. Co-op., Inc., 298 F.3d 1238, 1244 (11th Cir. 2002) ("Rule 68 requires that the responsibility for clarity and precision in the offer must reside with the offeror."); Sanchez v. Prudential Pizza, Inc., 709 F.3d 689, 694 (7th Cir. 2013) ("Whether the ambiguity is accidental or strategic, Rule 68 must be interpreted to prevent such strategic use of ambiguity by construing an ambiguous offer against the offered defendant's interests, whether the question arises from the offer's acceptance or rejection."). Plaintiff further relies on the Eighth Circuit which stated:

Rule 68 leaves no discretion in the district court to do anything other than enter judgment once an offer of judgment has been accepted. By directing that the clerk shall enter judgment after proof of offer and acceptance has been filed, the explicit language of the Rule indicates that the district court possesses no discretion to alter or modify the parties' agreement.

Perkins v. U.S. West Communications, 138 F.3d 336, 338 (8th Cir. 1998).

The offer of judgment served on plaintiff by defendants states in relevant part:

PURSUANT TO Federal Rule of Civil Procedure 68, without admitting any allegation, the Defendants Dolinsky, Pennington, and City of Omaha offer to allow judgment to be taken against all or any one or more of them in favor of the Plaintiff on the following terms.
1. Judgment on one or more of the Plaintiffs' claims in the total cumulative amount of sixteen thousand dollars and no cents ($16, 000.00); and,
2. Reasonable taxable costs accrued to this date to be determined by the court in accordance with local rules; and,
2. [sic] Reasonable attorney fees accrued to this date to be determined by the court in accordance with 42 U.S.C. ยง 1988 and pertinent case law.

Filing No. 95, Ex. A. Thereafter, plaintiff served these three defendants an Acceptance of Rule 68 Offer of Judgment which stated:

Pursuant to Federal Rule of Civil Procedure 68, Plaintiff Robert Wagner accepts Defendant Dolinsky's offer of judgment on the terms offered by her:
1. Judgment only on Plaintiff's claim of failure to intervene only against Defendant Dolinsky in the total cumulative amount of sixteen thousand dollars and no cents ($16, 000.00); and,
2. Reasonable taxable costs accrued to July 31, 2013, the date of service of the Rule 68 Offer of Judgment, in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.