Childress v. Desilva Automotive Services LLC
494 F.Supp.3d 1163
D.N.M.2020Background
- Plaintiff Marjorie Childress sued DeSilva Automotive, Vajira Samaratne, Palmer Administrative Services, Inc., and Paylink Payment Plans, LLC, alleging unlawful autodialed robocalls to her cell (on the National Do-Not-Call Registry) in violation of the TCPA and related state/common-law claims.
- Childress alleges repeated automated prerecorded calls over a 12‑month period; she later purchased a vehicle service contract (VSC) to identify defendants, and received documents naming DeSilva, Paylink, and Palmer.
- Defendants served a Rule 68 Offer of Judgment on July 10, 2020: $25,000 "includes all costs incurred to date, and includes all sums for reasonable attorneys’ fees incurred to date," and disclaimed any admission of liability or damages.
- Childress accepted the Offer on July 21, 2020 and asked the Clerk to enter judgment for $25,000 plus post‑judgment interest; the Clerk sought the Court’s guidance because the parties disagreed on the form and terms of the judgment.
- Disputes presented: whether Rule 68 requires entry of judgment as offered; whether the offer includes costs/attorney fees and the time frame for those fees; whether post‑judgment interest applies; and whether the defendants’ liability disclaimer may appear in the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Must the Clerk enter judgment after acceptance of a Rule 68 offer? | Rule 68 requires the clerk to enter judgment once offer is accepted and filed. | Entry is ministerial but must mirror the offer; the parties need not submit additional proposed judgment. | Yes; Rule 68 entitlement to judgment governs and clerk must enter judgment consistent with the offer. |
| 2) Does post‑judgment interest apply and must the Court set the rate? | Post‑judgment interest is mandatory under 28 U.S.C. § 1961 and should be specified (plaintiff proposed 8.75%). | The Offer did not specify interest; defendants argued the proposed judgment must match the Offer and omitted plaintiff's interest rate. | §1961 applies to Rule 68 judgments; Court includes post‑judgment interest and sets the statutory rate (.13% for the relevant week). |
| 3) Does the Offer include costs and attorneys’ fees? | Plaintiff contends the Offer’s $25,000 should include fees as plaintiff accepted the Offer. | Defendants explicitly stated the $25,000 "includes all sums for reasonable attorneys’ fees incurred to date," limiting fees/costs to those accrued through July 10, 2020. | Held that the Offer includes attorney’s fees and costs incurred through July 10, 2020; defendants are not liable for fees/costs incurred after that date. |
| 4) May the defendants’ disclaimer of liability be included in the judgment? | Plaintiff sought judgment without additional defensive language. | Defendants requested and relied on express language that the Offer and any resulting judgment are not admissions of liability or that plaintiff suffered damage. | Court held the disclaimer may be included and will incorporate defendants’ requested non‑admission language in the Final Judgment. |
Key Cases Cited
- Marek v. Chesny, 473 U.S. 1 (1985) (Rule 68 allows lump‑sum offers; "costs accrued" can include attorney's fees when statute defines costs)
- Lima v. Newark Police Dep't, 658 F.3d 324 (3d Cir. 2011) (offer language that expressly includes all claims/fees binds defendants to pay fees accrued under fee‑shifting statutes)
- Webb v. James, 147 F.3d 617 (7th Cir. 1998) (entry of judgment under an accepted Rule 68 offer is a ministerial act for the clerk)
- Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't, 532 U.S. 598 (2001) (defines "prevailing party" as one awarded some relief)
- Cappiello v. ICD Publications, Inc., 720 F.3d 109 (2d Cir. 2013) (post‑judgment interest compensates for delay; §1961 applies to money judgments)
- Waggoner v. R. McGray, Inc., 743 F.2d 643 (9th Cir. 1984) (stipulated judgments may be subject to statutory post‑judgment interest)
- Maher v. Gagne, 448 U.S. 122 (1980) (a Rule 68 offer's disclaimer of liability does not prevent the plaintiff from being treated as prevailing for fee/cost purposes)