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50 State Survey: Offer of Judgment Statutes and Rules

M. Elizabeth Roper, Megan E. Donaldson, Denise S. Lee

Most states have an offer of judgment provision,[1] and many of them are patterned after Federal Rule of Civil Procedure 68. Unlike Fed. R. Civ. P. 68, some states allow either party—not just the defendant—to make an offer of judgment.[2] 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.[3]

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 will first address states that allow attorney’s fees after a rejected offer—although some of these statutes only allow for a limited fee collection. Second, we will discuss offers of judgment that are more like Fed. R. Civ. P. 68, permitting awards of costs only.

Offer of Judgment Statutes that Provide a Basis for Collecting Attorney’s Fees

ALASKA

Offer of Judgment Statute and Rule: Alaska Stat. Ann. § 09.30.065; Alaska R. Civ. P. 68

Offer and Acceptance

  • Either party may initiate an offer of judgment at any time until 10 days before trial. Alaska Stat. Ann. § 09.30.065(a); Alaska R. Civ. P. 68. The offer must be accepted within 10 days after service. Id. If accepted, one of the parties files the offer and notice of acceptance with proof of service with the court clerk. Id.

Rejection and Recovery

  • If the offeree rejects the offer and the judgment is at least 5% less favorable than the terms offered (or, if there are multiple defendants, at least 10% less favorable than the offer), then the offeree must pay “all costs” including “reasonable actual attorney fees incurred by the offeror from the date the offer was made,” filing fee, fees for service of process, costs of taking and transcribing depositions, witness fees, and travel costs. Alaska Stat. Ann. § 09.30.065(a); Alaska R. Civ. P. 79.
  • The percentage of attorney’s fees paid is 75%, 50%, or 30%, depending on when the offer is served. See Alaska R. Civ. P. 68 (b)(1)-(3); Alaska Stat. Ann. § 90.30.065(a)(1)-(3). But a party who receives attorney’s fees under this statute may not also receive allowable fees under Alaska R. Civ. P. 82. See Alaska R. Civ. P. 68 (c); Alaska Stat. Ann. § 90.30.065(b).

ARIZONA[4]

Offer of Judgment Rule: Ariz. R. Civ. P. 68

Offer and Acceptance

  • Either party may initiate an offer of judgment at any time until 30 days before trial. Id. at 68(a)(1). The offer must generally be accepted within 30 days after service. Id. at 68(h)(1). Once accepted, one of the parties files the offer and proof of acceptance with the court. Id. at 68(c).

Rejection and Recovery

  • If the offeree rejects an offer of judgment and obtains a less favorable judgment than the terms offered, then the offeree “must pay as a sanction” 20% of the difference between the amount of the offer and the amount of the final judgment. Id. at 68(g)(1).
  • Arizona’s rule also allows a timely objection (10 days after service) to the validity of any offer by serving the offeror with written notice. Id. at 68(d)(2). See Boyle v. Ford Motor Co., 334 P.3d 219, 221 (Ariz. Ct. App. 2014) (providing examples of validity objections including as to the service of the offer or misstating the terms of the offer).

CONNECTICUT

Offer of Judgment Statute: Conn. Gen. Stat. §§ 52-192a-52-195

Offer and Acceptance

  • In general, any party may initiate an offer of judgment at any time until 30 days before trial. Id. at 52-192a(a); 52-193. Unlike most jurisdictions, Connecticut requires the offeror to file the offer with the court regardless of whether the offeror is the defendant or plaintiff. Id. To accept the offer, the offeree files the acceptance with the clerk within 30 days after notice of the offer. Id. at 52-192(a); 52-194.

Rejection and Recovery

  • Plaintiff’s Offer of Compromise. If a defendant rejects a plaintiff’s offer and the plaintiff obtains a judgment that is at least the same amount as the terms offered, then the court will add an additional 8% annual interest to the plaintiff’s award. Id. at 52-192a(c). Depending on when the offer of compromise was filed, this interest is calculated from the date of filing the complaint (if the offer of compromise was filed no later than 18 months from the date the complaint was filed) or from the date of the offer of compromise was filed (if the offer of compromise was filed later than 18 months from the date the complaint was filed). Id.
  • Defendant’s Offer of Compromise. If a plaintiff rejects a defendant’s offer and fails to obtain a more favorable judgment than the terms offered, then the plaintiff will not only be precluded from recovering his own costs but will also be required to pay the defendant’s costs (including reasonable attorney’s fees). Id. at 52-195(b).
  • Under this statute, the court may award reasonable attorney’s fees (but only up to $350). Id. at §§ 52-192a(c); 52-195(b).

FLORIDA

Offer of Judgment Statute and Rule: Fla. Stat Ann. § 768.79; Fla. R. Civ. P. 1.442

Offer and Acceptance

  • Any party may initiate an offer of judgment. Id. at § 768.79(1); Fla. R. Civ. P. 1.442(c)(3). An offer of judgment must be accepted within 30 days after its service. Id. Once accepted, the offer and acceptance are filed with the court. Id. at 768.79(4).

Rejection and Recovery

  • Defendant as the Offeror. If the plaintiff rejects a defendant’s offer of judgment and receives a judgment that is 25% less than the amount offered or if the judgment is one of no liability, then the defendant will be entitled to reasonable costs, which include “investigative expenses, and attorney’s fees . . . incurred from the date the offer was serviced.” Id. at 768.79(7)(a) (emphasis added). Additionally, if the defendant’s reasonable costs exceed the amount of judgment, Florida law requires the court to enter a judgment for defendant “for the amount of the costs and fees, less the amount of the award to the plaintiff.” Id.
  • Plaintiff as the Offeror. If a defendant rejects a plaintiff’s offer of judgment and the plaintiff receives a judgment that is at least 25% more than the amount offered, then the plaintiff will be entitled to the same reasonable costs as discussed above. Id.
  • As noted in Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 372 (Fla. 2013), “the Florida Legislature enacted section 768.79 to deter individuals from rejecting purportedly reasonable settlement offers through the imposition of the sanctions of costs and attorney’s fees.” (citing Southeast Floating Docks, Inc. v. Auto-Owners Insurance Co., 82 So. 3d 72, 79 (Fla. 2012)).

GEORGIA

Offer of Judgment Statute: Ga. Code Ann. § 9-11-68

Offer and Acceptance

  • Only in tort litigation, any party may initiate an offer of judgment at any time until 30 days before trial. Id. at § 9-11-68(a). In general, the offer must be accepted within 30 days. Id. at 9-11-68(c).

Rejection and Recovery

  • Defendant as the Offeror. If a plaintiff rejects a defendant’s offer of judgment and receives a final judgment that is less than 75% of the amount offered or the final judgment is one of no liability, then the defendant will be entitled to recover reasonable attorney’s fees and litigation expenses incurred from the date that the offer was rejected. Id. at 9-11-68(b)(1).
  • Plaintiff as the Offeror. If a defendant rejects a plaintiff’s offer of judgment and the plaintiff receives a final judgment in an amount that is greater than 125% of the amount offered, then the plaintiff will be entitled to recover reasonable attorney’s fees and litigation expenses incurred from the date that the offer was rejected. Id. at 9-11-68(b)(2).
  • The statute allows offers to be open for less than 30 days. But for a party to be entitled to fees and expenses under Georgia’s Offer of Judgment statute, the offer must have been open for 30 days. Id. at 9-11-68(c).
  • Georgia’s statute “was enacted to encourage litigants in tort actions to make good faith efforts to settle cases in order to avoid unnecessary litigation.” Anglin v. Smith, 853 S.E.2d 142 (Ga. Ct. App. 2020). See also Junior v. Graham, 870 S.E.2d 378, 383 (Ga. 2022) (“an award of attorney fees and litigation expenses under [Ga. Code Ann.] § 9-11-68(b) is properly understood as a sanction that requires the misbehaving party to pay the opposing party’s resulting attorney fees and litigation expenses.” (cleaned up)).

INDIANA

Offer of Judgment Statute and Rule: Ind. R. Trial P. 68 and separately, Ind. Code § 34-50-1-1, et seq. (offer for qualified settlement)  

Offer and Acceptance

  • A defendant may initiate an offer judgment up until 10 days before trial. Id. The plaintiff must accept the offer within 10 days through a written notice. Id. If accepted, either party files the offer and notice of acceptance with proof of service with the court clerk. Id.
  • In addition to offers of judgment, Indiana also recognizes offers for qualified settlement pursuant to Ind. Code § 34-50-1-1, et seq. These offers, by either party, must be made more than 30 days before trial. Id. at § 34-50-1-2.

Rejection and Recovery

  • If the plaintiff rejects an offer of judgment and fails to obtain a judgment more favorable than the amount offered, then the plaintiff “must pay the [defendant’s] costs incurred after the making of the offer.” Id.
  • Costs do not include attorney’s fees and litigation expenses for an offer of judgment. D.S. v. E. Porter Cnty. School Corp., 981 F. Supp. 2d 805, 817 (N.D. Ind. 2013) (“The term ‘costs’ used in Indiana Trial Rule 68 has generally been held not to include attorney’s fees (citing Hanson v. Valma M. Hanson Revocable Tr., 855 N.E.2d 655, 669 (Ind. Ct. App. 2006)); Missi v. CCC Custom Kitchens, Inc., 731 N.E.2d 1037, 1039 (Ind. Ct. App. 2000).
  • If the offeree does not accept the qualified offer of settlement, and the final judgment is less favorable than the terms of the offer, the offeror receives attorney’s fees, costs, and expenses (after the date of the offer)—a key difference from the offer of judgment. Id. at § 34-50-1-6. “However, the award of attorney’s fees, costs, and expenses may not total more than one thousand dollars ($1,000).” Id.

MICHIGAN

Offer of Judgment Rule: Mich. Ct. R. 2.405

Offer and Acceptance

  • Any party may initiate an offer of judgment (or more formally called “offers to stipulate to entry of judgment”) at any time until 28 days before trial. Id. at 2.405(B). The offer must be accepted within 21 days after service of the offer. Id. at 2.405(C)(1). Once accepted, the offeree must file the offer and notice of acceptance with proof of service with the court. Id.

Rejection and Recovery

  • If the adjusted verdict is more favorable to the offeror than the terms offered, then the offeree must pay the offeror’s “actual costs incurred in the prosecution or defense of the action.” Id. at 2.405(D)(1).
  • If the adjusted verdict is more favorable to the offeree than the terms offered, then the offeror must pay the offeree’s “actual costs incurred in the prosecution or defense of the action.” Id. at 2.405(D)(2).
  • Costs may include attorney’s fees. Indeed, the Rule defines actual costs as the “costs and fees taxable in a civil action and a reasonable attorney fee, dating to the rejection of the prevailing party’s last offer or counteroffer, for services necessitated by the failure to stipulate to the entry of judgment.” Id. at 2.405(A)(6); 2.405(D)(3) (“The court may, in the interest of justice, refuse to award an attorney fee under this rule.”).

NEW JERSEY

Offer of Judgment Rule: N.J. Ct. R. 4:58-1-4:58-7

Offer and Acceptance

  • With some exceptions that do not apply in product liability litigation, and only when the relief is “exclusively monetary in nature,” any party may make an offer of judgment more than 20 days before the trial date. N.J. Ct. R. 4:58-1(a). The offer is served on the adverse party and filed with the court. Id. Acceptance must be at any time on or before the tenth day before the trial date (or within 90 days of service, whichever occurs first), and the offeree serves acceptance on the offeror and files a notice of acceptance with the court. Id. at 4:58-1(a)-(b).
  • “Within 7 days after full payment (30 days after date of service of notice of acceptance), the offeror and the offeree shall file a Stipulation of Dismissal with Prejudice as to all claims that are the subject of the accepted offer.” Id. at 4:58-7.

Rejection and Recovery

  • Plaintiff (Claimant) as the Offeror. If the defendant rejects the claimant’s offer and the claimant obtains a money judgment of 120% of the offer or more—excluding prejudgment interest and attorney’s fees—the plaintiff/claimant receives: (1) all reasonable litigation expenses after non-acceptance, (2) prejudgment interest as described in the rule, and (3) reasonable attorney’s fees “for such subsequent services as are compelled by the non-acceptance.” Id. at 4:58-2.
  • Defendant (Party Other than the Claimant) as the Offeror. If the plaintiff (claimant) rejects the non-claimant’s offer, and the claimant obtains a judgment “that is favorable to the offeror as defined by this rule,” (i.e., 80% of the offer or less—excluding prejudgment interest and attorney’s fees) the non-claimant receives the same three awards as described in 4:58-2. Id. at 4:58-3(a)-(b).
  • Both Rules, 4:58-2 and 4:58-3, include an exception for “undue hardship” or “unfairness to the offeree,” and the court can reduce the amount to address this concern.
  • Additionally, pursuant to 4:58-3(c), the non-claimant offeror does not receive any of these awards if (1) the claim is dismissed, (2) a no-cause verdict is returned, (3) nominal damages are awarded, (4) a fee would conflict with policy, or (5) because of undue hardship or unfairness, as under 4:58-2.
  • The New Jersey Rules allow for recovery of attorney’s fees. See also Reid v. Finch, 40 A.3d 100, 102 (N.J. Super. Ct. Law. Div. 2011) (“Both rules [Rules 4:58-2 and 4:58-3] depart from the general ‘American’ rule, which requires that litigants pay their own attorneys’ fees regardless of the outcome at trial,” and “the cost-shifting sanctions attached to the New Jersey rule are much more significant than those attached to the federal rule. A party awarded costs under the New Jersey rule will be awarded both court costs and attorneys fees, while the party may only collect costs under the federal rule.” (citation omitted)).

OKLAHOMA

Offer of Judgment Statutes: Okla. Stat. tit. 12, §§ 1101-1101.1

Offer and Acceptance

  • Oklahoma Statute, Title 12, Section 1101 applies to actions to recover money only and permits the defendant to serve an offer any time before trial and provides 5 days for the plaintiff to accept. Id. Either party files the offer and affidavit of notice of acceptance, “and in either case, the offer and acceptance shall be noted in the journal, and judgment shall be rendered accordingly.” Id.
  • But Oklahoma Statute Title 12, Section 1101.1 applies only to personal injury (and wrongful death) claims, among some other claims not relevant to product liability litigation, for recovery of money “only where the plaintiff demands in a pleading or in trial proceedings for more than One Hundred Thousand Dollars ($100,000.00), or where defendant makes an offer of judgment for more than One Hundred Thousand Dollars ($100,000.00).” Okla. Stat. tit. 12, § 1101.1.
  • The defendant makes the offer at any time more than 10 days prior to trial, and the plaintiff has 10 days to respond. Id. at § 1101.1(1). But the plaintiff then also has the opportunity to make a counteroffer of judgment to which the defendant then has 10 days to accept or reject. Id. at § 1101.1(2).

Rejection and Recovery

  • Where the plaintiff “fails to obtain judgment for more than was offered by the defendant,” defendant is entitled to costs from the time of offer. Attorney’s fees are not included as costs in this section. See Sisk v. Sanditen Invs. Ltd., 662 P.2d 317, 320-21 (Okla. Civ. App. 1983) (“the plain words of § 1101 do not provide for the inclusion of attorney fees as ordinary costs, and we are not free expand their meaning by construction to include attorney fees” (cleaned up)).
  • Either party’s rejection under § 1101.1—plaintiff’s rejection of defendant’s offer or defendant’s rejection of plaintiff’s counteroffer—entitles the party whose offer was better than the judgment obtained to “reasonable litigation costs and reasonable attorney fees” from the date of filing of the offer or counteroffer until the date of verdict. Id. at § 1101.1(3)-(4) (emphasis added).
  • More precisely, for the defendant to receive this award, “the judgment awarded the plaintiff” must be “less than the final offer of judgment” from the defendant. Id. at § 1101.1(3). For the plaintiff to receive this award, “the judgment awarded to the plaintiff” must be “greater than the final counteroffer of judgment.” Id. at § 1101.1(4).

TEXAS

Offer of Settlement Statute and Rule: Tex. Civ. Prac. & Rem. Code Ann. § 42.001-42.005; Tex. R. Civ. P. 167.1-167.7

Offer and Acceptance

  • Texas Rule of Civil Procedure 167.1-167.7 implements the legislative directive in Tex. Civ. Prac. & Rem. Code Ann. § 42.005. The Rule includes many provisions identical to those contained in § 42.001-42.005 and fills in some procedural and timing gaps.
  • A defendant may initiate an offer of settlement but may not do so until filing a declaration to invoke the rule. This must be done no later than 45 days before the case is set for trial.
  • Additionally, the offer also cannot be made 60 days after the later of the offeror’s own appearance or that of the offeree; and generally, with some exceptions, not within 14 days of the trial. Tex. R. Civ. P. 167.2(a), (e)(1)-(3).
  • The Rule does not specify that only a defendant can make an offer, but only a defendant is required to make the requisite declaration; a plaintiff would follow the other timing requirements, as specified. Id.
  • The offeree accepts by serving written notice on the offeror by the deadline specified in the offer (which cannot be sooner than 14 days after service). Id. at 167.2(b)(5); 167.3(b).

Rejection and Recovery

  • If an offeree rejects a settlement offer and receives a “significantly less favorable” judgment on the claims covered by the offer, the offeror is entitled to litigation costs from the time the offer was rejected. Id. at 167.4(a).
  • Plaintiff (Claimant) as the Offeror. A “significantly less favorable” outcome for a rejecting defendant is a judgment of more than 120% of the offer. Id. at 167.4(b)(2).
  • Defendant as the Offeror. A “significantly less favorable” outcome for a rejecting plaintiff (claimant) is a judgment of less than 80% of the offer. Id. at 167.4(b)(1).
  • The Rule specifies the litigation costs that are included in the recovery: “expenditures actually made and the obligations actually incurred—directly in relation to the claims covered by a settlement offer under this rule” fall into four categories: “(1) court costs; (2) reasonable deposition costs, in cases filed on or after September 1, 2011; (3) reasonable fees for not more than two testifying expert witnesses; and (4) reasonable attorney fees.” Id. at 167.4(c)(1)-(4).
  • The Rule also limits the recovery, and includes that, for a case filed after September 1, 2011, “the litigation costs that may be awarded to any party under this rule must not exceed the total amount that the claimant recovers or would recover before adding an award of litigation costs under this rule in favor of the claimant or subtracting as an offset an award of litigation costs under this rule in favor of the defendant.” Id. at 167.4(d)(2). See also id. at (g) (“Litigation costs awarded to a defendant must be made a setoff to the claimant’s judgment against the defendant.”).

WISCONSIN

Offer of Settlement Statute: Wis. Stat. Ann. § 807.01

Offer and Acceptance

  • A defendant may initiate an offer of judgment at any time, but at least 20 days before trial. Id. at § 807.01(1). The plaintiff must accept the offer before trial, or within 10 days of the offer, through a written notice. Id. If accepted, the plaintiff files the offer with proof of service of the notice of acceptance with the clerk, who will render judgment accordingly. Id.
  • In addition to offers of judgment, Wisconsin also has an offer of damages, id. at § 807.01(2), and an offer of settlement, id. at § 807.01(3). An offer of damages is “a written offer that if the defendant fails in the defense the damages be assessed at a specified sum.” Id. at § 807.01(2). An offer of damages is served by the defendant and accepted by the plaintiff on the same timeline as an offer of judgment. Id. at § 807.01(2). An offer of settlement is served by the plaintiff and accepted by the defendant, also on the same timeline as an offer of judgment. Id. at § 807.01(3).

Rejection and Recovery

  • If the plaintiff rejects an offer of judgment and fails to recover a more favorable judgment, “the plaintiff shall not recover costs but defendant shall recover costs to be computed on the demand of the complaint.” Id. at § 807.01(1).
  • If the plaintiff rejects an offer of damages and “the damages assessed in favor of the plaintiff do not exceed the damages offered, neither party shall recover costs.” Id. at § 807.01(2).
  • If the defendant rejects the offer of settlement and the plaintiff recovers a more favorable judgment, “the plaintiff shall recover double the amount of the taxable costs.” Id. at § 807.01(3).
  • Wisconsin’s statute also includes a provision allowing annual interest under the terms specified in § 807.01(4) for calculating interest (1% plus a prime rate based on the federal reserve statistical release) for a rejected offer of settlement where the judgment recovered is “greater than or equal to the amount specified in the offer of settlement.”
  • The costs in Wisconsin’s statute include attorney’s fees, but these fees are limited under Wis. Stat. Ann. § 814.04, which provides for attorney’s fees of $100, $300, or $500, depending on the amount recovered. Alberte v. Anew Health Care Servs., Inc., 685 N.W.2d 614, 617 (Wis. Ct. App. 2004) (interpreting the term “taxable costs” in § 807.01(3)); see also Michael A.P. v. Solsrud, 514 N.W.2d 879 (Table), 1994 WL 32341, at *2 (Wis. Ct. App. 1994) (“The costs referred to in that statute [§ 807.01(1)] include any attorney’s fees.” (citing § 814.04)).

Offer of Judgment Statutes More Analogous to Fed. R. Civ. P. 68

ALABAMA

Offer of Judgment Rule: Ala. R. Civ. P. 68

Offer and Acceptance

  • A defendant may initiate an offer of judgment at any time until 15 days before trial. Id. The offer must be accepted within 10 days after service of the offer. Id. Once accepted, one of the parties files the offer and notice of acceptance with proof of service. Id.

Rejection and Recovery

  • If the plaintiff rejects the offer of judgment and fails to obtain a judgment that is more favorable than the terms offered, then the plaintiff “must pay the costs incurred after the making of the offer.” Id.
  • Costs do not include attorney’s fees. See Atkinson v. Long, 559 So. 2d 55, 58 (Ala. Civ. App. 1990).

ARKANSAS

Offer of Judgment Rule: Ark. R. Civ. P. 68

Offer and Acceptance

  • A defendant may initiate an offer of judgment at any time until 10 days before trial. Id. The offer must generally be accepted within 10 days after service. Id. Once accepted, one of the parties files the offer and notice of acceptance along with proof of service with the court. Id.

Rejection and Recovery

  • If the plaintiff rejects an offer of judgment and obtains a less favorable judgment than the terms offered, then the plaintiff must “pay the cost incurred after the making of the offer.” Id.
  • Costs do not include attorney’s fees. Id. (“For purposes of this rule, the term ‘costs’ is defined as reasonable litigation expenses, excluding attorney’s fees.”).

CALIFORNIA

Offer of Judgment Statute: Cal. Civ. Proc. Code § 998

Offer and Acceptance

  • Any party can initiate an offer of judgment at any time until 10 days prior to trial. Id. at 998(b). The offer must be accepted by either party prior to trial or within 30 days after it is made, whichever occurs first. Id. at (b)(2). Once accepted, the offer as well as proof of acceptance must be filed with the court. Id. at 998(b)(1).

Rejection and Recovery

  • If a plaintiff rejects a defendant’s offer of judgment and fails to obtain a more favorable judgment, then the plaintiff will incur the following consequences: (1) plaintiff cannot recover his or her post-offer costs; (2) plaintiff must pay the defendant’s costs incurred from the time the offer is made; (3) the court may require the plaintiff to pay the defendant’s post-offer expert witness fees; and (4) if the costs awarded under this Rule exceed the plaintiff’s awarded damages, then the net amount will be awarded to the defendant and judgment will be entered accordingly. Id. at 998(c)(1); (e).
  • If a defendant rejects a plaintiff’s offer of judgment and fails to obtain a more favorable judgment, then the defendant must pay the plaintiff’s post-offer costs including expert witness fees. Id. at 998(d).
  • This rule is “a cost-shifting statute that allows the recovery of costs, including attorney fees as costs if there is a contractual or other statutory basis for them. Stated differently, section 998 does not independently create a statutory right to attorney fees.” Linton v. Cnty. of Contra Costa, 31 Cal. App. 5th 628, 634 (2019) (quoting Ford Motor Credit Co. v. Hunsberger, 163 Cal. App. 4th 1526, 1532 (2009)).

COLORADO 

Offer of Judgment Statute: Colo. Rev. Stat. § 13-17-202

Offer and Acceptance

  • Any party may initiate an offer of judgment at any time until 14 days before trial. Id. at § 13-17-202(1)(a). The offer must be accepted within 14 days after it is served. Id. at (1)(a)(III).

Rejection and Recovery

  • If the defendant rejects a plaintiff’s offer of judgment and fails to obtain a more favorable judgment than the terms offered, then the defendant must pay the plaintiff’s actual costs incurred after the offer was made. Id. at (1)(a)(I).
  • If the plaintiff rejects a defendant’s offer of judgment and fails to obtain a more favorable judgment than the terms offered, then the plaintiff must pay the defendant’s actual costs incurred after the offer was made. Id. at (1)(a)(II).
  • Costs do not include attorney’s fees but may include “filing fees, subpoena fees, reasonable expert fees, copying costs, court reporter fees, reasonable investigative expenses and fees, reasonable travel expenses, exhibit or visual aid preparation or presentation expenses, legal research expenses, and all other similar fees and expenses.” Id. at (1)(b).

DELAWARE

Offer of Judgment Rule: Del. Super. Ct. R. Civ. P. 68 

Offer and Acceptance

  • Only a defendant as the “party defending against a claim” may submit an offer of judgment. Id. The offer must be accepted within 10 days. If accepted, either party files the offer and notice of acceptance with proof of service with the court. Id.

Rejection and Recovery

  • If the plaintiff rejects the offer and fails to obtain a more favorable judgment, then the plaintiff must pay the defendant’s costs incurred after making the offer. Id. However, plaintiffs may still recover costs incurred before the offer was made. Wilhelm v. Ryan, 903 A.2d 745, 757 (Del. 2006) (“[T]he offeree will be permitted to recover his costs incurred before the offer of judgment under Rule 54(d), but will be liable for costs incurred after the offer of judgment, including his own, under Rule 68.”) (emphasis added).
  • Costs probably do not include attorney’s fees. See Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 509-10 (Del. 2001) (“Even if Rule 68 were to apply, it does not authorize recovery of attorneys fees”). But see Brooks v. Laird, No. N21C-09-120 VLM, 2023 WL 6460276, at *2 (Del. Super. Ct. Oct. 2, 2023) (“it is well-settled in Delaware that Defendant is entitled to have her costs, including attorney’s fees and expert fees, assessed against Plaintiff” (citing Del. Super. Ct. R. 54 and 68)).

HAWAII 

Offer of Judgment Rule: Haw. R. Civ. P. 68

Offer and Acceptance

  • Any party may initiate an offer of judgment at any time until 10 days before trial. Id. The offer must be accepted within 10 days after service of the offer. Id. If the offer is accepted, then either party files the offer and notice of acceptance with proof of service with the clerk who then will enter a judgment. Id.

Rejection and Recovery

  • If, after rejecting the offer of judgment, the offeree fails to obtain a more favorable judgment than the offer, the offeree “must pay the costs incurred after the making of the offer.” Id.
  • For offer of judgment purposes, costs include all costs defined under Haw. Rev. Stat. § 607-9(b) which include “intrastate travel expenses for witness and counsel, expenses for deposition transcript originals and copies, and other incidental expenses, including copying costs, intrastate long-distance telephone charges, and postage, sworn to by an attorney or a party.”
  • Hawaii’s Rule 68 does not include attorney’s fees. Collins v. S. Seas Jeep Eagle, 952 P.2d 374, 378 (Haw. 1997) (“[W]e hold that ‘costs’ as defined under [Haw. R. Civ. P.] 68, do not include attorneys’ fees.”).

IDAHO

Offer of Judgment Rule: Idaho R. Civ. P. 68

Offer and Acceptance

  • A defendant may initiate an offer of judgment at any time until 14 days before trial. Id. at 68(a). The plaintiff must accept the offer within 14 days after it is served. Id. If accepted, either party files the offer and notice of acceptance with proof of service to the clerk. Id.

Rejection and Recovery

  • If the plaintiff rejects an offer of judgment and fails to obtain an adjusted award that is more favorable than the amount offered, then the plaintiff must pay the defendant’s costs incurred after making the offer. Id. at 68(d)(1)(B)(i). To determine whether a plaintiff received a more or less favorable award, the statute compares the amount in the offer of judgment against the plaintiff’s “adjusted award” which equals the verdict and the plaintiff’s costs and attorney’s fees incurred before service of the judgment. Id. at 68(d)(1)(A).
  • The defendant is still required to pay the plaintiff’s costs, as allowed by Rule 54(d)(1), incurred before the offer was made. Id. at (d)(1)(B)(ii). But see Stewart v. McKarnin, 120 P.3d 748, 750 (Idaho Ct. App. 2005) (“We agree with [the defendant] that Rule 68(b) cannot be applied literally, allowing partial recovery of costs by the defeated plaintiff under Rule 68(b)(ii). In such cases, the prevailing defendant is entitled to full recovery of costs as allowed under Rule 54(d).”)
  • If the plaintiff rejects an offer of judgment but obtains an adjusted amount that is greater than the amount offered, then the defendant must pay the plaintiff’s costs incurred before and after the offer is made. Id. at 68(d)(1)(C).
  • Because Idaho’s Rule 68 is “patterned after Federal Rule 68,” and “Rule 68 is intended to protect a defendant against a plaintiff’s claim for costs where the defendant has made a reasonable offer of judgment and where the verdict recovered by the plaintiff is less favorable than the offer,” “Rule 68 does not include attorney fees.” Vulk v. Haley, 736 P.2d 1309, 1313 (Idaho 1987).

IOWA

Offer of Judgment Statute: Iowa Code §§ 677.1-677.14

Offer and Acceptance

  • A defendant may initiate an offer of judgment (more formally known in Iowa as “offers to confess judgment”) at any time before trial—even before an action has been filed. Id. at 677.1, 677.4, 677.7. Once a defendant submits an offer to the plaintiff, the plaintiff has 5 days to accept the offer. Id. at 667.8, 677.9. Iowa law also permits defendants to make offers conditional on whether the defendant prevails in defending the claim. Id. at 677.11.

Rejection and Recovery

  • Offers to Confess Before Action Is Filed. If the plaintiff rejects a “pre-action” offer after notice “of [the offer’s] amount, and of the time and place of making it” and fails to obtain a judgment more than the amount offered, then the plaintiff will be required to pay “all costs of the action.” Id. at 677.2.
  • Offers to Confess After Action is Filed. If the plaintiff rejects such an offer and fails to obtain a more favorable judgment, then the plaintiff will not only be precluded from recovering his or her own costs but will also be required to pay the defendant’s costs incurred after making the offer. Id. at 677.10, 677.13.
  • Costs do not include attorney’s fees. Weaver Constr. Co. v. Heitland, 348 N.W.2d 230, 233 (Iowa 1984) (“We believe the legislative intent of chapter 677 is clear; attorney fees are not included in the cost-shifting which the statute allows because attorney fees are not explicitly mentioned in the statute.”).

KANSAS 

Offer of Judgment Statute: Kan. Stat. Ann. § 60-2002(b) 

Offer and Acceptance

  • A defendant may initiate an offer of judgment at any time more than 21 days before trial begins. Id. Within 14 days after service of the offer, the plaintiff may accept the offer through a written notice. Id. If accepted, either party files the offer and notice of acceptance with proof of service with the clerk. Id.

Rejection and Recovery

  • If the plaintiff rejects an offer of judgment and fails to obtain a judgment more favorable than the amount offered, then the plaintiff “must pay the [defendant’s] costs incurred after the making of the offer.” Id.
  • Costs do not include attorney’s fees. See Loyd v. Rural Water Dist. No. 2, 504 P.3d 462 (Table), at *4-5 (Kan. Ct. App. 2022) (holding that § 60-2002(b) does not authorize the trial court to award attorney’s fees as it is “substantially the same” as Fed. R. Civ. P. 68).
  • Section 60-2001(d) addresses additional court costs that may be awarded and includes attorney’s fees as a possible fee or expense to be assessed, but § 60-2003 does not include attorney’s fees in items allowable as costs and includes only the docket fee, mileage fees and some service of process fees, publication of notice fees, statutory fees and mileage of witnesses, reporter or stenographer charges for depositions used as evidence, some postage fees, some mediation fees, and some other convenience and administrative fees. See also Divine v. Groshong, 679 P.2d 700, 711 (Kan. 1984) (holding that § 60-2003 describes the costs awarded under § 60-2002 and finding no error when other litigation fees, including attorney’s fees were not awarded).

KENTUCKY

Offer of Judgment Rule: Ky. R. Civ. P. 68

Offer and Acceptance

  • A defendant may initiate an offer of judgment at any time more 10 days before trial begins. Id. at 68(1). Within 10 days after service of the offer, the plaintiff may accept the offer through a written notice. Id. If accepted, either party files the offer and notice of acceptance with proof of service with the clerk. Id.

Rejection and Recovery

  • If the plaintiff rejects an offer of judgment and fails to obtain a judgment more favorable than the amount offered, then the plaintiff “must pay the [defendant’s] costs incurred after the making of the offer.” Id. at 68(3).
  • Costs may possibly include attorney’s fees, but authority addressing the issue is limited. Childers v. Childers, No. 2004-CA-001410-MR, 2006 WL 1560746, at *2 (Ky. Ct. App. June 9, 2006) (finding that the lower court did not abuse its discretion in awarding a reduced amount of attorney’s fees under Ky. R. Civ. P. 68). Other authority suggests this Rule should be interpreted the same as Fed. R. Civ. P. 68. See, e.g., Farris v. Taylor, No. 2007-CA-001137-MR, 2008 WL 1991717, at *1 (Ky. Ct. App. May 9, 2008).

LOUISIANA

Offer of Judgment Rule: La. Code Civ. Proc. Ann. art. 970

Offer and Acceptance

  • Any party may initiate an offer of judgment at any time until 20 days before trial. Id. at 970(A). The offer must be accepted within 10 days after service of the offer. Id. Once accepted, either party may move for judgment on the offer. Id.

Rejection and Recovery

  • An offeree must pay the “offeror’s costs, exclusive of attorney fees, incurred after the offer was made” in the following circumstances: (1) the plaintiff, as offeree, obtains a judgment that is at least 25% less than the terms offered, or (2) the defendant, as offeree, obtains a judgment that is at least 25% greater than the terms offered. Id. at 970(C) (emphasis added). See also Edwards v. Daugherty, 736 So. 2d 345, 351 (La. Ct. App. 1999) (“While the legislature does not define costs, it grants the court discretion to fix the costs for whatever items it deems fit as long as the court does not award attorney fees.”).

MAINE

Offer of Judgment Rule: Me. R. Civ. P. 68

Offer and Acceptance

  • Any party may initiate an offer of judgment at any time until 10 days before trial begins “or within such shorter time as the court may approve.” Id. The offer must be accepted within 10 days after service of the offer. Id. Once accepted, one of the parties files the offer and notice of acceptance with proof of service with the clerk. Id.

Rejection and Recovery

  • If the offeree rejects the offer of judgment and fails to obtain a judgment more favorable than the term offered, then the offeree must pay the costs incurred after the offer was made. Id.
  • Costs probably do not include attorney’s fees. “It is established law in Maine that except for certain types of tortious conduct, courts have no authority to award attorney’s fees to a litigant in the absence of statutory authorization or agreement by parties.” Poussard v. Com. Credit Plan, Inc. of Lewiston, 479 A.2d 881, 883 (Me. 1984). In Arsenault, the court stated that Sections 1502-B, 1502-C, and 1502-D delineated the recoverable costs in civil actions and as such, defined the costs under Rule 68. Arsenault v. Crossman, 696 A.2d 418, 421 (Me. Sup. Jud. Ct. 1997). These costs include “recoverable costs” (filing fees, service of process fees, witness attendance and travel fees, travel expenses) and “discretionary costs” (expert witness fees, medical report views, visual aids, deposition costs). Me. Rev. Stat. tit. 14 § 1502-B; Me. Rev. Stat. tit. 14 § 1502-C. Sections 1502-B and 1502-C include catch-all provisions but do not specifically include attorney’s fees. Id. at § 1502-B(5); § 1502-C(5) (“Such other costs as the Supreme Judicial Court may allow by rule.”).

MASSACHUSETTS

Offer of Judgment Rule: Mass. R. Civ. P. 68

Offer and Acceptance

  • A defendant may initiate an offer of judgment at any time until 10 days before trial. Id. The offer must be accepted within 10 days after service of the offer. Id. Once accepted, one of the parties files the offer and notice of acceptance with proof of service with the clerk. Id.

Rejection and Recovery

  • If the plaintiff rejects the defendant’s offer of judgment and fails to obtain a judgment more favorable than the term offered, the plaintiff must pay the costs incurred after the offer was made. Id.
  • Costs do not include attorney’s fees. Batishchev v. Cote, No. 054074E, 2007 WL 2840358, at *1 (Mass. Super. Ct. Sept. 24, 2007).

MINNESOTA

Offer of Judgment Rule: Minn. R. Civ. P. 68.01-68.04

Offer and Acceptance

  • Any party may initiate an offer of judgment at any time until 14 days before trial begins. Minn. R. Civ. P. 68.01(a). To accept an offer, the offeree must do so within 14 days after service of the offer. Id. at 68.02(a). Once accepted, either party files the offer and notice of acceptance with proof of service with the court. Id. at 68.02(b).

Rejection and Recovery

  • Defendant as the Offeror. If a plaintiff rejects a defendant’s offer of judgment, and the defendant either prevails at trial or the plaintiff fails to obtain a judgment more favorable than the terms offered, then the plaintiff will suffer “dual adverse consequences: loss of the right to recover his costs and required payment of the defendant’s costs.” Id.
  • Plaintiff as the Offeror. If the defendant rejects a plaintiff’s offer of judgment and fails to obtain a more favorable judgment than the terms offered, then the defendant will “pay double the [plaintiff’s] costs and disbursements incurred after service of the offer.” Id.; see also id. at 68.03(b)(2).
  • Costs do not include attorney’s fees. See Bucko v. First Minn. Savings Bank., 471 N.W.2d 95, 98 (Minn. 1991) (“For purposes of applying Minn. R. Civ. P. 68, ‘costs’ do not include attorney fees.”); see also Minn. R. Civ. P. 68.04 advisory committee comment (2008 amendment), which states, in relevant part, “Rule 68.04(a) expressly provides that the rule does not create a right to recover attorney fees . . . The rule might affect the extent of fees recoverable by statute, common law, or by contract, but it does not create any right to recover fees that does not exist outside of Rule 68.”).

MISSISSIPPI

Offer of Judgment Rule: Miss. R. Civ. P. 68

Offer and Acceptance

  • A defendant may initiate an offer of judgment at any time until 15 days before trial. Id. The offer must be accepted within 10 days after the offer has been served on the adverse party. Id. Once accepted, either party files the offer and notice of acceptance with proof of service with the clerk. Id.

Rejection and Recovery

  • If the plaintiff rejects an offer of judgment and fails to obtain a more favorable judgment than amount offered, then the plaintiff “must pay the costs incurred after the making of the offer.” Id.
  • In Hubbard, the Mississippi Court of Appeals held that the costs recoverable in an offer of judgment are limited to costs defined under Miss. R. Civ. P. 54. Hubbard v. Delta Sanitation of Miss., 64 So.3d 547, 559-69 (Miss. Ct. App. 2011) (holding that the defendant was not entitled to expert fees, copying expenses, expenditures made for demonstrative aids used at trial, and court reporter fees). The comments to Rule 54 state that items such as “attorney’s fees, travel expenditures, and investigatory expenses will not qualify either as statutory fees or reimbursable costs.” Miss. R. Civ. P. 54. Adv. C’ee Notes.

MISSOURI

Offer of Judgment Rule: Mo. Sup. Ct. R. 77.04

Offer and Acceptance

  • Any party may initiate an offer of judgment at any time until 30 days before trial. Id. An offer of judgment must be accepted within 10 days after service of the offer on the adverse party. Id. Once accepted, either party must file the offer and notice of acceptance with proof of service with the clerk. Id.

Rejection and Recovery

  • If the offeree rejects the offer of judgment and fails to obtain a more favorable judgment than the amount offered, then the offeree “shall not recover costs . . . from the time of the offer but shall pay costs from that time.” Id. Defendant would still be responsible for costs incurred before the date of the offer. Bishop v. Cummines, 870 S.W.2d 922, 926 (Mo. Ct. App. 1994).
  • Costs do not include attorney’s fees. See Midland Prop. Partners, LLC v. Watkins, 416 S.W.3d 805, 818 (Mo. Ct. App. 2013) (“[I]t is generally understood that the term ‘costs’, when used in the statutory context, does not include attorneys’ fees.” (citations omitted)).

MONTANA

Offer of Judgment Rule: Mont. R. Civ. P. 68

Offer and Acceptance

  • A defendant may initiate an offer of judgment at any time until 14 days before trial. Id. The offer must be accepted within 14 days after the offer has been served on the opposing party. Id. at 68(a). Once accepted, either party files the offer and notice of acceptance with proof of service with the clerk. Id.

Rejection and Recovery

  • If the plaintiff rejects the defendant’s offer of judgment and fails to obtain a judgment more favorable than the offer, then the plaintiff must pay the costs incurred after the offer was made. Id. at 68(d).
  • Generally, attorney’s fees are not included in costs in Montana. Schillinger v. Brewer, 697 P.2d 919, 922 (Mont. 1985) (comparing the language of Rule 68 with that of a different statute and describing the general rule that “[b]y statute costs generally allowable do not include attorney fees,” but instead those costs listed in Mont. Code Ann. § 25-10-201 which include witness fees, deposition expenses, publication fees, recording fees, stenographer fees, printing expenses, some transcript expenses, map expenses, and a catchall category for “other reasonable and necessary expenses that are taxable according to the course and practice of the court or by express provision of law.”).

NEBRASKA

Offer of Judgment Statute: Neb. Rev. Stat. § 25-901

Offer and Acceptance

  • A defendant may initiate an offer of judgment at any time before the trial begins. Id. If the plaintiff accepts, then within 5 days of service of the offer, the plaintiff files the offer and an affidavit documenting timely notice of acceptance. Id. The defendant may also file the offer and a similar affidavit. Id. The offer and acceptance are entered on the record and judgment rendered. Id.

Rejection and Recovery

  • If the plaintiff rejects the defendant’s offer of judgment and fails to obtain a judgment for more than the offer, then the plaintiff must pay the costs from the time of the offer. Id.
  • Costs under this statute do not necessarily include attorney’s fees, but often courts must interpret Section 25-901 in conjunction with Neb. Rev. Stat. § 44-359, which applies in actions to recover under an insurance policy and does permit a reasonable attorney’s fee. See, e.g., Eledge v. Farmers Mut. Home Ins. Co. of Hooper, Nebraska, 571 N.W.2d 105 (Neb. Ct. App. 1997); Davenport Grain Co. v. Michigan Millers Mut. Ins. Co., 125 F.R.D. 157 (D. Neb. 1987).

NEVADA

Offer of Judgment Statute and Rule: Nev. R. Civ. P. 68; Nev. Rev. Stat. Ann. § 17.117

Offer and Acceptance

  • Any party may initiate an offer of judgment at any time until 21 days before trial begins. Nev. R. Civ. P. 68(a); Nev. Rev. Stat. Ann. § 17.117(1). The offeree may accept the offer within 14 days of service by serving written notice. Id. at 68(d)(1); § 17.117(6).
  • Nevada’s Statute and Rule have a provision that allows the party making payment to do so within 21 days of acceptance and avoid entry of judgment by obtaining a dismissal of the claims. Id. at 68(d)(2); § 17.117(7).
  • After 21 days after the acceptance, either party files the offer, notice of acceptance, and proof of service, and the clerk will enter judgment. Id. at 68(d)(3); § 17.117(8).

Rejection and Recovery

  • If the offeree rejects the offer and fails to obtain a more favorable judgment, the offeree cannot recover costs, expenses, attorney’s fees, or interest for the period after service and before judgment and must pay the offeror’s post-offer costs and expenses, specifically including reasonably necessary expert witness fees, interest, and reasonable attorney’s fees. Id. 68(f); § 17.117(10).
  • But attorney’s fees can be recovered under this rule only if permitted by law or contract. Id. 68(g); § 17.117(12). Nevada’s offer of judgment rule and statute do not appear to offer an independent basis to recover attorney’s fees, and any fees assessed will involve consideration of “fact-intensive factors.” See Furniture Royal, Inc. v. Schnadig Int’l Corp, No. 218CV318JCMDJA, 2020 WL 13611245, at *2 (D. Nev. Nov. 2, 2020) (citing Beattie v. Thomas, 668 P.2d 268, 274 (Nev. 1983)). A prior version of the statute, now repealed, Nev. Rev. Stat. Ann. § 17.115, did not include the caveat of the current § 17.117 and Rule 68 that fees could be recovered in the court’s discretion “if any be allowed.” See Franchise Tax Bd. v. Hyatt, 485 P.3d 1247 (Table), at *2-3 (Nev. 2021) (attempting to harmonize § 17.115 with Nev. R. Civ. P. 68). The current version of the statute is “identical” to Nevada’s Rule 68. See Furniture Royal, Inc., 2020 WL 13611245, at *2.

NEW MEXICO

Offer of Settlement Rule: N.M. R. Civ. P. 1-068

Offer and Acceptance

  • Any party may serve an “offer to allow an appropriate judgment” on an adverse party, more than 10 days before a trial begins and if made by the plaintiff (claimant), no sooner than 120 days after the defendant files a responsive pleading. Id. at 1-068(A). An offer is accepted within 10 days of service, with written notice, and either party must file the offer, notice of acceptance and proof of service, and the court will direct the entry of judgment. Id.

Rejection and Recovery

  • Plaintiff (Claimant) as the Offeror. If the defendant rejects the claimant’s offer and the judgment is more favorable than the offer, the defendant pays costs—“excluding attorney’s fees”—but “including double the amount of costs incurred after the making of the offer.” Id.
  • Defendant as the Offeror. If the plaintiff (claimant) rejects the defendant’s offer, and the judgment is more favorable than the offer, the claimant pays costs, again “excluding attorney’s fees” incurred after the offer andwill not recover costs incurred thereafter. Id.

NEW YORK

Offer to Compromise Rule: N.Y. C.P.L.R. 3221

Offer and Acceptance

  • A party defending against a claim may initiate an offer to compromise no later than 10 days before trial. Id. The offeree may accept within 10 days and serve written notice. Id. Either party files the summons, complaint and offer, with proof of acceptance, and the clerk will enter judgment. Id.

Rejection and Recovery

  • If the claimant rejects the defendant’s offer of judgment and fails to obtain a more favorable judgment, then the claimant will not recover costs and will pay defendant’s costs from the time of that offer. Id.
  • Costs under this rule do not include attorney’s fees. See Blacklink Transp. Consultants PTY Ltd. v. Von Summer, 856 N.Y.S.2d 496 (Table), at *4-5 (N.Y. Sup. Ct. 2008) (contrasting this rule with a foreign (Australian) rule due to that rule’s inclusion of attorney’s fees and stating, “[u]nder New York law, attorneys’ fees and disbursements are incidents of litigation and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties or by statute or court rule.” (citation omitted)).

NORTH CAROLINA

Offer of Judgment Rule: N.C. R. Civ. P. 68

Offer and Acceptance

  • A defendant may initiate an offer of judgment at any time until 10 days before trial. Id. at 68(a). The offer must be accepted within 10 days after the offer has been served on the opposing party. Id. at 68(a). Once accepted, either party files the offer and notice of acceptance with proof of service with the clerk, who shall enter judgment. Id.

Rejection and Recovery

  • If the plaintiff rejects the defendant’s offer and the judgment finally obtained is not more favorable than the offer, then the plaintiff must pay the costs incurred after the offer was made. Id.
  • North’s Carolina’s Rule 68 provides no independent basis for an award of attorney’s fees. See Lincoln v. Bueche, 601 S.E.2d 237, 244 (N.C. Ct. App. 2004) (“There is no provision in Rule 68 authorizing the trial courts to award attorneys fees. Attorneys fees can be awarded in the context of Rule 68 where there exists authorization to tax them as costs under some other Rule or statute. In the absence of such authority, the awarding of attorney’s fees to defendants under the provisions of Rule 68 was error.” (emphasis added)).

NORTH DAKOTA

Offer of Settlement Rule: N.D. R. Civ. P. 68(a)

Offer and Acceptance

  • Any party may initiate an offer of judgment at least 14 days before the beginning of trial. Id. at 68(a)(1). The offer of settlement is for the parties to “enter into a stipulation dismissing the claim or allowing judgment to be entered accordingly.” Id. (emphasis added). The offer must be accepted within 14 days after service of the offer. Id. If the offer is accepted, then either party files the offer and notice of acceptance with proof of service with the clerk, who then will enter a judgment on the court’s order. Id.

Rejection and Recovery

  • If, after rejecting the offer of judgment, the offeree fails to obtain a more favorable judgment than the offer, the offeree “must pay the costs incurred after the offer was made.” Id. at 68(a)(4).
  • Attorney’s fees are not included as a taxable cost as provided in N.D. Cent. Code § 28-26-06, which includes various legal fees and witness fees, as well as expert witness fees.

OREGON

Offer of Judgment Rule: Or. R. Civ. P. 54 E

Offer and Acceptance

  • Any party “against whom a claim is asserted” may initiate an offer of judgment up to 14 days before trial begins. Id. at Or. R. Civ. P. 54 E(1). The party asserting the claim has 7 days to accept, endorse the acceptance, and file the accepted offer with the clerk before trial. Id. at Or. R. Civ. P. 54 E(2). “[T]hereupon judgment shall be given accordingly as a stipulated judgment.” Id.

Rejection and Recovery

  • If the claimant rejects the offer of judgment and fails to obtain a judgment more favorable that the offer, the claimant shall not recover costs, prevailing party fees, disbursements, or attorney’s fees incurred after the date of the offer. Id. at 54 E(3). The offeror recovers costs and disbursements only from the time of the offer. Id.
  • The “costs and disbursements” of an offeror (typically the defendant) are those included in Or. R. Civ. P. 68 A(2) which defines these fees as not including attorney’s fees, but only as those “reasonable and necessary expenses incurred in the prosecution or defense of an action, other than for legal services,” (emphasis added). The statute includes a detailed list of fees related to officers, witnesses, and expenses for copying, mailing, and “any other expense specifically allowed by agreement, by these rules, or by any other rule or statute.”
  • Oregon has found some exceptions to this rule in cutting off the plaintiff’s entitlement to attorney’s fees when other statutes permit plaintiffs to receive attorney’s fees as the prevailing party. See, e.g., Mathis v. St. Helens Auto Ctr., Inc., 478 P.3d 946 (Or. 2020); Powers v. Quigley, 198 P.3d 919 (Or. 2008); Elliott v. Progressive Halcyon Ins. Co., 194 P.3d 828 (Or. Ct. App. 2008).

RHODE ISLAND

Offer of Judgment Rule: R.I. Super. Ct. R. Civ. P. 68

Offer and Acceptance

  • A party defending against a claim may initiate an offer of judgment until 10 days before trial begins. Id. at 68(a). The offeree has 10 days after service to accept. Id. Either party files the offer and notice of acceptance, and the clerk will enter judgment. Id.

Rejection and Recovery

  • If the offeree rejects the defending party’s offer of judgment and the judgment finally obtained is not more favorable than the offer, the offeree must pay the “costs incurred after the making of the offer.” Id. at 68(c).
  • Without clear authority in the rule or caselaw, it seems unlikely that this rule would permit the recovery of attorney’s fees, but the costs to be awarded are not precisely defined. R.I. Super. R. Civ. P. 54(d)-(e) provides some discussion of the costs that “shall be allowed as of course to the prevailing party as provided by statute and by these rules unless the court otherwise specifically directs,” but does not specify the costs to be included. Rule 54(e) states that costs of depositions are within the discretion of the court but must be “reasonably necessary, whether or not the deposition was actually used at the trial.”

SOUTH CAROLINA

Offer of Judgment Rule: S.C. R. Civ. P. 68

Offer and Acceptance

  • Any party in a civil action (other than a domestic relations action) can initiate an offer of judgment at any time until 20 days prior to trial. Id. at 68(a). The offer must be accepted by whichever is earlier—20 days after service or 10 days before trial. Id. The offeree who accepts files a written acceptance, and “the court shall immediately issue the judgment and the clerk shall enter the judgment as provided in the offer of judgment.” Id.

Rejection and Recovery

  • If, after rejecting the offer of judgment, the offeror “obtains a verdict or determination at least as favorable as the rejected offer,” the offeree—whether plaintiff or defendant— must pay administrative, filing, and court costs. Id. at 68(b)(1).
  • Plaintiff as the Offeror. If the defendant rejects the offer, in addition to the administrative costs, he pays “eight percent interest computed on the amount of the verdict or award from the date of the offer to the entry of judgment.” Id. 68(b)(2).
  • Defendant as the Offeror. If the plaintiff rejects the defendant’s offer, in addition to the administrative costs, he receives a “reduction from the judgment or award of eight percent interest computed on the amount of the verdict or award from the date of the offer to the entry of the judgment.” Id. at 68(b)(3).
  • The costs to be awarded do not include attorney’s fees. Belton v. State, 529 S.E.2d 4, 5 (S.C. 2000) (“Costs are allowed when judgment is entered pursuant to an offer of judgment but these costs do not include attorney’s fees.” (citation omitted)).
  • As with Fed. R. Civ. P. 68, a full defense verdict does not entitle the defendant to recovery under South Carolina’s Rule 68. Black v. Roche Biomedical Lab’ys., 433 S.E.2d 21, 23-24 (S.C. Ct. App. 1993).

SOUTH DAKOTA 

Offer of Judgment Statute: S.D. Codified Laws § 15-6-68

Offer and Acceptance

  • Any party may initiate an offer of judgment until 10 days before trial begins. Id. The offeree has 10 days after service to accept. Id. Either party files the offer, notice of acceptance, and proof of service with the clerk who will enter judgment. Id.

Rejection and Recovery

  • If the offeree rejects the offer and the judgment finally obtained is not more favorable than the offer, the offeree must pay the “costs incurred after the making of the offer.” Id.
  • Costs do not appear to include attorney’s fees, but instead include those costs categorized in § 15-6-54(d), as costs and disbursements, as distinct from attorney’s fees. These costs and disbursements are more specifically defined in § 15-17-37 as “expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial,” including fees of witnesses, interpreters, translators, various printing and transcription cost, communication costs, reporter’s fees, and fees for “court appointed experts.”

TENNESSEE

Offer of Judgment Rule: Tenn. R. Civ. P. 68

Offer and Acceptance

  • Any party may initiate an offer of judgment until 10 days before trial begins. Id. The offeree has 10 days after service to accept. Id. Either party files the offer, notice of acceptance, and proof of service with the court and judgment will be entered accordingly. Id.

Rejection and Recovery

  • If the offeree rejects the offer and the judgment finally obtained is not more favorable than the offer, the offeree must pay the “costs accruing after the making of the offer.” Id.
  • Costs do not include attorney’s fees. See Person v. Fletcher, 582 S.W.2d 765, 767 (Tenn. Ct. App. 1979) (“we hold the costs referred to in [Rule 68], are those costs authorized by statute”).

UTAH 

Settlement Offers Rule: Utah R. Civ. P. 68

Offer and Acceptance

  • Either party can initiate a settlement offer under Rule 68, and among other requirements, the offer must be made more than 14 days before trial and remain open for at least 14 days. Id. at 68(c)(1)-(5). After a party accepts and serves acceptance on the offeror, either party files the offer, acceptance, and proposed judgment. Id. at 68(c).

Rejection and Recovery

  • If the offeree rejects the offer and the “adjusted award” is not more favorable than the offer, the offeror does not have to pay costs, prejudgment interest, or attorney’s fees incurred after the offer. Id. at 68(b). The offeree must pay the offeror’s costs after the offer. Id.
  • An “adjusted award” is defined as “the amount awarded by the finder of fact and, unless excluded by the offer, the offeree’s costs and interest incurred before the offer, and, if attorney fees are permitted by law or contract and not excluded by the offer, the offeree’s reasonable attorney fees incurred before the offer.” Id. at 68(d).
  • Attorney’s fees are not included in the costs under this rule. See Cox v. Cox, 877 P.2d 1262, 1270 (Utah Ct. App. 1994) (“The Utah Supreme Court has construed this rule such that is applies ‘to taxable costs only. Attorney’s fees are not taxable costs, but may be awarded against an opposing party only if there is contractual or statutory liability therefor.’” (quoting Nelson v. Neman, 583 P.2d 601, 604 (Utah 1978)).

VERMONT

Offer of Judgment Rule: Vt. R. Civ. P. 68

Offer and Acceptance

  • Any party may initiate an offer of judgment until 14 days before trial begins (“or within such shorter time as the court may approve”). Id. The offeree has 14 days after service to accept (“or within such shorter time as the court may order”). Id. The offeree serves written notice to accept, and either party files the offer, notice of acceptance, and proof of service with the clerk who enters judgment. Id.

Rejection and Recovery

  • If the offeree rejects the offer and the judgment finally obtained is not more favorable than the offer, the offeree must pay the “costs incurred after the making of the offer.” Id.
  • The costs obtained under this Rule do not include attorney’s fees. The Reporter’s Notes to this version of the Rule, a 2022 amendment, note that, “[t]he present amendment does not allow additional recoveries not part of costs, such as interest, attorney’s fees, and expert witness fees that may otherwise be available only as an exercise of judicial discretion under Vermont law.” See also Murphy v. Sentry Ins., 95 A.3d 985, 998 n.1 (Vt. 2014) (“It is true that Vermont follows the American Rule, but costs and attorney’s fees are distinct . . . While our courts have relatively broad discretion in awarding costs in litigation, attorney’s fees are considered litigation expenses—not costs and are not as freely taxed to the opposing party by one who prevails in a particular matter.” (cleaned up)).

WASHINGTON

Offer of Judgment Rule: Wash. Super. Ct. Civ. R. 68

Offer and Acceptance

  • A party defending against a claim may initiate an offer of judgment until 10 days before trial begins. Id. at 68. The offeree has 10 days after service to accept. Id. Either party files the offer and notice of acceptance, and the clerk will enter judgment. Id.

Rejection and Recovery

  • If the offeree rejects the defending party’s offer of judgment and the judgment finally obtained is not more favorable than the offer, the offeree must pay the “costs incurred after the making of the offer.” Id.
  • Costs do not generally include attorney’s fees. This Rule “is a cost-shifting device, not a fee-shifting device,” and “the term ‘costs’ does not include attorney fees absent a statute or agreement providing otherwise.” Magnussen v. Tawney, 34 P.3d 899, 900 (Wash. Ct. App. 2001) (cleaned up). See also Sims v. Kiro, Inc., 580 P.2d 642, 647 (Wash. 1978) (“The term ‘costs’ has been interpreted as not including attorney’s fees and expert witness fees. In the event that the rule is to be expanded to include attorney’s fees and expert witness fees as ‘costs’ it should be expanded by statute or by amendment.” (citing Fiorito v. Goerig, 179 P.2d 316 (1947)).

WEST VIRGINIA

Offer of Judgment Rule: W. Va. R. Civ. P. 68

Offer and Acceptance

  • A party defending against a claim may initiate an offer of judgment until 10 days before trial begins. Id. at 68(a). The offeree has 10 days after service to accept. Id. Either party files the offer and notice of acceptance, and the clerk will enter judgment. Id.
  • On January 31, 2024, West Virginia’s Supreme Court of Appeals adopted amendments to the W. Va. R. Civ. P. that will be effective on January 1, 2025, and will change the 10 days in Rule 68(a) to 14 days—the offer must be served 14 days before trial begins and the offeree has 14 days to accept. No other amendments alter the substance of this Rule. W. Va. Court Order 0001 (C.O.0001).

Rejection and Recovery

  • If the offeree rejects the defending party’s offer of judgment and the judgment finally obtained is not more favorable than the offer, the offeree must pay the “costs incurred after the making of the offer.” Id. at 68(c).
  • Costs do not include attorney’s fees. See Carper v. Watson, 697 S.E.2d 86, 96 (W. Va. 2010) (“[T]he Court now holds that the ‘costs’ that may be assessed against a plaintiff under [W. Va. R. Civ. P. 68(c)] will be limited to ‘court costs,’ i.e., the costs taxable under [W. Va. R. Civ. P. 54(d). “Costs’ under Rule 68(c) do not include attorney fees, expert witness fees, or any other expenses that are not traditionally taxed as ‘court costs,’ unless (1) the statute applicable to the case expands the definition of ‘costs’ to include such expenses, and (2) the statute does not limit the award of such costs to the ‘claimant’ or ‘plaintiff.’”).

WYOMING

Offer of Judgment Statute: Wyo. R. Civ. P. 68

Offer and Acceptance

  • Any party can initiate an offer of judgment at any time more than 60 days after service of the complaint and at least 28 days before the date set for trial. Id. at 68(a). The offer must be accepted within 14 days after service. Id. Once accepted, one of the parties files the offer, notice of acceptance, and proof of service. Id.

Rejection and Recovery

  • If the offeree rejects the offer of judgment and fails to obtain a judgment more favorable than the offer, then the offeree must pay the costs incurred after the offer was made. Id.
  • Costs do not include attorney’s fees, as specified in the rule. Id.at 68(b) (“As used herein, ‘costs’ do not include attorney’s fees.”).

[1] The states that do not have an offer of judgment statute or rule are Maryland, Illinois, New Hampshire, Ohio, Pennsylvania, and Virginia.

[2] The Supreme Court described another significant limitation on Fed. R. Civ. P. 68 in Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981): “In sum, if we limit our analysis to the text of the Rule itself, it is clear that it applies only to offers made by the defendant and only to judgments obtained by the plaintiff. It therefore is simply inapplicable to this case because it was the defendant that obtained the judgment.” Some state statutes specifically permit a finding of no liability to support an award to the defendant. See, e.g., Florida and Georgia’s statutes, as discussed infra.

[3] See Spencer v. Ottosen Propellar & Accessories, Inc., No. 3:16-cv-00188-TMB, 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, No. C-3-00852-RMW, 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).

[4] Although this rule does not allow for the recovery of attorney’s fees, it is included in this section because it differs from most of the rules that closely align with Fed. R. Civ. P. 68.

Finis

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