Mite v. Falstaff Brewing Corp.
106 F.R.D. 434
N.D. Ill.
1985
Check Treatment

MEMORANDUM ORDER

SHADUR, District Judge.

Edward Mite d/b/a Edmite Distributors (“Mite”) has filed “objections” to the offer of judgment (the “Offer”) served by Falstaff Brewing Corporation (“Falstaff”) May 10, 1985 under Fed.R.Civ.P. (“Rule”) 68. For the reasons stated in this memorandum order, this Court denies both aspects of Mite’s alternative motion to strike the Offer or find it insufficient under Rule 68.

What Mite complains of is a condition imposed by Falstaff on its $1,500 offer:

This amount to be in total settlement of this action with no admission of liability and said judgment herein to have no effect whatsoever except in settlement of this case.

Exactly that kind of limitation was included in the accepted Rule 68 offer dealt with by this Court in Coleman v. McLaren, 92 F.R.D. 754 (N.D.Ill.1981), a decision affirmed by our Court of Appeals at 699 F.2d 401 (7th Cir.1983). Though the acceptance of the offer in Coleman caused this Court and the Court of Appeals to focus on wholly different issues, neither court indicated the offer there was in any respect flawed in Rule 68 terms. Even more to the point, a similar condition was included in the rejected offer dealt with by the Supreme Court in Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981) (see id. at 348-49 n. 2, 101 S.Ct. at 1148-49 n. 2), and the Court decided the case without any hint the offer was insufficient for Rule 68 purposes.

Those cases control here. Of course this Court makes no comment on the obvious practical (but presently hypothetical) difficulty posed by the Offer. Under the definitive reading in Delta Air Lines, Rule 68 applies only where plaintiff (in this case Mite) wins the ease but obtains a judgment for less than the Rule 68 offer (in this case less than $1,500). It does not apply if defendant (in this case Falstaff) wins the lawsuit.

That however is for another day. In technical terms (the only relevant issue now) the Offer is sufficient. Mite’s motion is denied in its entirety.