86 F. Supp. 3d 831
M.D. Tenn.2015Background
- Plaintiffs are three sisters (Jane, June, Sally Doe) who alleged student-on-student sexual harassment and Title IX retaliation by Rutherford County Board of Education (RCBE) and associated school officials; Allison Bush was the alleged harasser.
- The jury found for RCBE on all claims except Jane Doe’s Title IX retaliation claim; Jane Doe prevailed on liability but recovered only $1.00 in nominal damages.
- RCBE served a Rule 68 Offer of Judgment on May 13, 2013: a lump-sum $30,000 inclusive of all damages, costs, and attorney’s fees, addressed to all three plaintiffs collectively.
- Post-trial motions included plaintiffs’ motion for new trial, Jane Doe’s fee petition under 42 U.S.C. § 1988, competing bills of costs, and RCBE’s motion to recover post-offer costs under Rule 68.
- The court denied the new trial motion, held the lump-sum Rule 68 offer effective, awarded Jane Doe $3,105.53 (pre-offer attorney fees and expenses plus $1 nominal damage), required Jane Doe to pay RCBE’s post-offer costs of $12,289.65, and exercised discretion under Rule 54(d) to deny RCBE costs against June and Sally Doe because of good faith, closeness of the case, potential chilling effect, and indigency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a new trial was warranted because verdicts were against weight of evidence, closing remarks, and nominal damages | Plaintiffs argued verdicts were against weight of evidence, defense referenced excluded evidence in closing, and nominal damages were unsupported | RCBE argued evidence supported verdicts and any closing comment was minor; jury credibility determinations control | Denied — court found jury verdicts were rational based on evidence; closing remark not prejudicial; nominal damages not automatic basis for new trial |
| Whether Rule 68 lump-sum offer to multiple plaintiffs was fatally ambiguous so it should not trigger cost-shifting | Plaintiffs argued un‑apportioned $30,000 offer prevented reliable comparison to an individual plaintiff’s judgment | RCBE argued offer valid given plaintiffs litigated and valued claims collectively, had same counsel, and never sought clarification | Held — lump-sum offer effective here; aggregated comparison appropriate because plaintiffs asserted unitary claims and negotiated as a unit |
| How to compare "judgment obtained" to Rule 68 offer for fee-shifting purposes under §1988 | Jane Doe urged court to include total (pre- and post-offer) fees plus $1 to compare to $30,000 | RCBE argued only pre-offer fees/expenses actually awarded plus damages should be included | Held — follow Sixth Circuit approach: compare offer to judgment value computed as damages plus pre-offer fees/expenses actually awarded; court awarded $3,105.53 as the judgment value |
| Whether Jane Doe (prevailing party with nominal damages) is entitled to §1988 attorney’s fees and whether Rule 68 precludes post-offer fee recovery | Jane Doe sought substantial fees (requested half of claimed fees) despite nominal damages | RCBE argued Marek/Mallory/Hescott and Farrar limit fee recovery where only nominal damages were awarded and that Rule 68 bars post-offer fees | Held — applying Farrar and related authority, court awarded a reduced/chosen partial pre-offer fee (reduced two-thirds) of $2,753.33 plus pre-offer expenses $351.20; post-offer attorney’s fees are barred by Rule 68, and Jane Doe must pay RCBE post-offer costs under Rule 68 |
| Whether RCBE may recover costs from June and Sally Doe | Plaintiffs argued indigency, good faith, closeness of case and chilling effect justify denying costs under Rule 54(d) | RCBE argued Rule 68 mandatory effect and costs should be awarded | Held — Delta Air Lines makes Rule 68 operate only against prevailing plaintiffs; because June and Sally are non‑prevailing, Rule 54(d) applies and court exercised discretion to deny costs against them based on indigency, good faith, and chilling concerns |
Key Cases Cited
- Hescott v. City of Saginaw, 757 F.3d 518 (6th Cir. 2014) (Rule 68 comparison uses damages plus pre-offer costs actually awarded)
- Marek v. Chesny, 473 U.S. 1 (U.S. 1985) (Rule 68 "costs" includes costs awardable under substantive statute, including attorney’s fees when authorized)
- Mallory v. Eyrich, 922 F.2d 1278 (6th Cir. 1991) (Marek’s application to civil rights cases; Rule 68 can bar post-offer fee recovery)
- Farrar v. Hobby, 506 U.S. 103 (U.S. 1992) (nominal damages may justify denying §1988 fees; degree of success controls reasonableness)
- Pouillon v. Little, 326 F.3d 713 (6th Cir. 2003) (applying Farrar where plaintiff recovered only nominal damages and was required to bear defendant’s post-offer costs)
- Delta Air Lines, Inc. v. August, 450 U.S. 346 (U.S. 1981) (Rule 68 cost-shifting applies only when plaintiff obtains a judgment less favorable than the offer; does not operate when defendant prevails)
- Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000) (elements for Title IX student-on-student liability)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (degree of success is primary factor in fee reasonableness)