OPINION AND ORDER
This mаtter is before the Court on Porter Township School Corporation and Boone Grove Middle School’s Motion for Attorney Fees [DE 43], filed on May 29, 2013, by Defendants Porter Township School Corporation and Boone Grove Middle School (collectively, the “Porter Township Defendants”). Defendants seek an award of attorney’s fees under Indiana Code § 34-50-1-2 and 42 U.S.C. § 1988.
BACKGROUND
On October 24, 2011, Plaintiffs, by counsel Mitchell A. Peters, filed a Complaint in the Porter County, Indiana, Superior Court against the Porter Township Defendants and Defendants East Porter County School Corporation and Morgan Township Middle/High School (“East Porter County Defendants”). As to the Porter Township Defendants, the relevant allegations of the Complaint were that, “[d]ue to the willful and deliberate behavior of [the Porter Township Defendants] in refusing to permit her to enroll in an open-enrollment public school, [D.S.] has undergone pain, suffering, emotional distress and interference in her access to public education, all in denial of her Civil and Constitutional Rights,” and that, also as a result of the behavior of the Porter Township Defendants, Debbie and George Stahl “have undergone pain, suffering, emotional distress and loss of reputation in their community.” Compl. ¶ 20.
On November 22, 2011, the Porter Township Defendants filed a Notice of Removal, alleging federal question jurisdiction under 28 U.S.C. § 1331 based on
On September 14, 2012, counsel for the Porter Township Defendants sent correspondence to counsel for Plaintiffs, advising that the asserted claims were nоt actionable and asking for a conference to resolve the claims. Receiving no response, defense counsel sent a qualified settlement offer in the amount of $1,500 pursuant to the provisions of Indiana Code § 34-50-1-1 et seq.
On October 17, 2012, the depositions of George M. Stahl and Debbie Lynn Stahl were taken, and on October 29, 2012, the deposition of D.S. was taken. On October 31, 2013, counsel for the Porter Township Defendants discussed the merits of the case with Plaintiffs’ counsel, providing case law that a claim can become frivolous in the course of discovery.
On January 31, 2013, the Porter Township Defendants and the East Porter County Defendants each filed a Motion for Summary Judgment. On February 8, 2013, Attorney Kevin Vanderground entered his appearance on behalf of Plaintiffs, and, the same date, Plaintiffs filed a motion to extend thе time to respond to summary judgment. The Porter Township Defendants filed an objection on February 8, 2013. Plaintiffs did not file a reply in support of their motion. Nevertheless, on February 11, 2013, the Court, in the interest of justice, granted Plaintiffs’ motion, extending the response deadline to March 28, 2013. Before the Court’s Order was docketed, Plaintiffs filed a response to summary judgment that same date, linking the brief on the electronic filing system to the East Porter County Defendants’ Motion for Summary Judgment only. Plaintiffs did not file a response to the Porter Township Defendants’ Motion for Summary Judgment.
Because the Court had granted Plaintiffs’ motion for an extension of time, the Court withheld ruling on the Motion for Summary Judgment until the March 28, 2013 response deadline passed. On April 30, 2013, the Court granted both motions for summary judgment, and judgment was entered in favor of all Defendants.
On April 29, 2013, Attorney Vanderground filed a motion to withdraw his appearance on behalf of Plaintiffs. On April 30, 2013, Attorney Peters filed a motion to withdraw his appearance on behalf of Plaintiffs, and the Court granted both motions that day. After the summary judgment ruling was issued, counsel for the Porter Township Defendants contacted Plaintiffs, who were proceeding pro se at that time, to resolve the issue of attorney’s fees due and owing. On May 28, 2013, Attorney Jason Bach entered his appearance on behalf of Plaintiffs.
On May 28, 2013, Plaintiffs filed a Motion for Relief from Final Judgment Pursuant to FRCP 60(b). The Porter Township Defendants filed a response on May 30, 2013, and Plaintiffs filed a reply on June 6, 2013.
On May 29, 2013, the Porter Township Defendants filed the instant Motion for Attorney Fees. Plaintiffs filed a response in opposition on June 11, 2013, and the Porter Township Defendants filed a reply on June 12, 2013.
On October 17, 2013, the Cоurt denied Plaintiffs’ Motion for Relief from Final Judgment.
ANALYSIS
The Porter Township Defendants request an award of attorney’s fees under Indiana Code § 34-50-1-6 based on the qualified settlement offer sent in Septem
1. k% U.S.C. § 1988
Although the request for attorney’s fees pursuant § 1988 is untimely, the Court finds that the late filing was the result of excusable neglect and that an award of attorney’s fees in a reduced amount is warranted. Federal Rule of Civil Procedure 54(d)(2) governs the timing for filing a request for attorney’s fees, including § 1988 fees, following judgment:
(A) Claim to Be by Motion. A claim for attorney’s fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.
(B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must:
(i) be filed no later than lk days after the entry of judgment;
(ii) specify the judgment and the statute, rule, or other grounds entitling the movаnt to the award;
(iii) state the amount sought or provide a fair estimate of it; and
(iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.
Fed.R.Civ.P. 54(d)(2) (emphasis added).
The Seventh Circuit Court of Appeals has held:
When attorney’s fees are taxed as costs, which is the usual way in which a prevailing party obtains such fees, see, e.g., 42 U.S.C. § 1988, the deadline for seeking them is 14 days, Fed.R.Civ.P. 54(d)(2)(B), unless this time is extended by an order (including, we have held, a standing order, or rule) of the district court. S.A. Healy Co. v. Milwaukee Metro. Sewerage Dist.,
(a) Process. To recover costs, a party must file and serve a completed AO Form 133 (available from the clerk or the сourt’s website) within 14 days after final judgment is entered.
(b) Extensions. The court may extend the 14-day deadline for good cause if, before the original deadline, the party files a motion requesting an extension.
N.D. Ind. L.R. 54-1 (effective Jan. 1, 2012). No such motion was filed.
First, Indiana Code § 34-50-1-6, the other provision under which attorney’s fees are sought in this motion, requires that the motion be filed within 30 days of entry of judgment. Ind.Code § 34-50-1-6(c). Second, the Porter Township Defendants acted in good faith as they attempted to resolve the attorney’s fees issue informally with Plaintiffs by correspondence dated May 14, 2013. That correspondence explained that, if Plaintiffs did not tender the $1000 requested in attorney’s fees under § 34-50-1-6 by May 22, 2013, counsel had been instructed to file a motion for fees with the court based on both § 34-50-1-6 and § 1988. The judicial proceedings are not adversely affected because Plaintiffs themselves filed a post-judgmеnt Motion for Relief from Final Judgment on May 28, 2013, and because the instant motion does not affect Plaintiffs’ ability to file an appeal. See Patzer v. Bd. of Regents of Univ. of Wis. Sys.,
42 U.S.C. § 1988 provides that “[i]n any action or proceeding to enforce ... [42 U.S.C. § 1983] ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” While “prevailing plaintiffs receive attorney’s fees as a matter of course,” Khan v. Gallitano,
Plaintiffs’ federal constitutional claims against the Porter Township Defendants were not frivolous from the outset. The Complaint alleged that, “[d]ue to the willful and deliberate bеhavior of [the Porter Township Defendants] in refusing to permit her to enroll in an open-enrollment public school, [D.S.] has undergone pain, suffering, emotional distress and interference in her access to public education, all in denial of her Civil and Constitutional Rights.” Compl. ¶ 20. Moreover, it appears that, from the facts submitted by the Porter Township Defendants in support of summary judgment, Plaintiffs believed, based on George Stahl’s (D.S.’s father) experiences during his attempt to enroll D.S. at Boone Grove Middle School, that D.S. was denied enrollment when enrollment was still open to others. Just because Plaintiffs did not respond to summary judgment and, thus, did not bring forth facts in support of the claim does not render the claim frivolous ab initio. See Leffler v. Meer,
However, this position became legally untenable following George Stahl’s deposition. Because D.S. did not have any direct evidence that the Porter Township Defendants had intentionally or with deliberate indifference treated her differently in violation of the equal protection clause, see Nabozny v. Podlesny,
On October 31, 2012, following all three Plaintiffs’ depositions, counsel for the Porter Township Defendants discussed the merits of the case with Plaintiffs’ counsel, indicating that a claim can become frivolous in the cоurse of discovery and emailing counsel case law in support. In their response brief, Plaintiffs offer no explanation for why they believe the claim was not untenable from that point forward. Thus, § 1988 attorney’s fees are warranted on the federal claims following the October 31, 2012 conversation between counsel to the present, including the costs incurred in responding to Plaintiffs’ Motion for Relief
For purposes of an attorney’s fee award under § 1988, reasonable attorney’s fees are calculated by the lodestar method, which multiplies the hours reasonably expended by the hourly rate. Hensley v. Eckerhart,
First, the Court finds that the hourly rate of $150 for the work of partners at a law firm in Northwest Indiana is reasonable. Because the fees are being awarded only for the time after the October 31, 2012 conversation for work on the federal § 1983 claims, the Court must recalculate the lodestar based on those parameters. The supporting documentation shows 40 total hours billed from November 11, 2012, through April 30, 2013. The Court divides this total hours in half to account for the work undertaken on defending the § 1983 claim as opposed to the state law claims, for a total of 20 hours. The Court further grants the request for attorney’s fees incurred in responding to Plaintiffs’ Motion for Relief from Judgment filed on May 28, 2013. The Court orders the Porter Township Defendants to file a Supplemental Affidavit with supporting documentation itemizing the time spent in drafting that response. The Court will then divide that time in half, add it to the 20 hours, multiply the total hours by the hourly rate of $150, and issue a final order awarding attorney’s fees to the Porter Township Defendants in that amount.
A. Qualified Settlement Offer-Indiana Code § 34-50-1-1
The Porter Township Defendants also seek attorney’s fees under Indiana Code § 34-50-1-6 based on the qualified settlement offer made on September 26, 2012, Plaintiffs failure to accept the offer, and this Court’s April 20, 2013 summary judgment ruling in favor of the Porter Tоwnship Defendants. Plaintiffs do not address this request in their response brief.
1. Timeliness
As an initial matter, the Court addresses whether the request for attorney’s fees under Indiana Code § 34-50-1-6 is governed by the 14-day filing deadline of Federal Rule 54(d)(2) and, if not, whether the motion was timely filed.
The Seventh Circuit found that the request for costs and post-settlement demand interest provided for in the Wisconsin stаtute are not Rule 54(d) costs but rather constitute “sanctions” for turning down a reasonable settlement demand; the costs and interest allowed for in the Wisconsin statute are simply the “measuring rods” of those sanctions. Id. at 308. The court went on to find that the proper analogy for this sanction, issued in the form of “costs” and “interest,” is a request for attorney’s fees because both are a “proceeding deemed collateral ... to the case on the merits.” SLA Healy,
In this context, the Seventh Circuit recognized that a motion for attorney’s fees under § 1988 is subject to the 14-day deadline of Rule 54(d)(2)(B), absent an order, standing order, or rule to the contrary and noted that the United States District Court for the Eastern District of Wisconsin at that time had enlarged the 14-day deadline to 90 days by local rule. Id. Nevertheless, the Seventh Circuit found that, althоugh the motion for costs and interest under the Wisconsin statute was analogous to a motion for attorney’s fees, it was not in fact a motion for attorney’s fees, and thus neither the 14-day deadline in Rule 54(d)(2)(B) nor the 90-day deadline in Eastern District of Wisconsin Local Rule 9.04 was applicable. Id. at 309. Rather, the Seventh Circuit held that a “local rule prescribing a deadline for Rule 54(d) motions is not automatically applicable to a motion for costs under [Federal Rule of Civil Procedure 68, the federal counterpart to Wis. Stat. § 807.01(3, 4),] or a motion for double costs under the Wisconsin statute.” Id. at 309 (citing Lentomyynti Oy v. Medivac, Inc.,
Therefore, despite the term “attorney’s fees,” an award of attorney’s fees under Indiana Code § 34-50-1-6, like the request for costs and post-settlement demand interest under the Wisconsin statute in S.A. Healy, is not in fact an award of attorney’s fees for the overall litigation of the case (such as § 1988 fees) that would be subject to the time limit of Federal Rule 54(d)(2), but rather is a “sanction” imposed for turning down a reasonable settlement demand or settlement offer. First, the provision for an award of attorney’s fees under Indiana Code § 34-50-1-6 also allows for an award of costs and expenses. See Ind.Code § 34-50-l-6(a)(2) (“attorney’s fees, costs, and expenses”).
Finally, the Court notes that the Indiana statute itself provides a deadline for the filing of a motion of thirty days after the entry of judgment. See Ind.Code § 34-50-l-6(c). The instant motion was filed twenty-nine days after the entry of judgment. Thus, ifthe thirty-day deadline set out in Indiana Code § 34-50-l-6(c) is applicable in this federal court exercising supplemental jurisdiction over the state-law claims subject to § 34-50-1-1 et seq. (which the court need not decide), the motion was timely under the Indiana statute.
2. Applicability of § 34-50-1-6 in this Federal Action
In a tort action, Indiana Code § 34-50-1-6 provides for an award of attorney’s fees, not to exceed $1,000, when a plaintiff rejects a qualified settlement offer made by a defendant in accordance with the requirements of Indiana Code §§ 34-50-1-3 and 34-50-1-4 and the final judgment is less favorable to the plaintiff than the terms of the offer.
(a) If:
(1) a recipient does not accept a qualified settlement offer; and
(2) the final judgment is less favorable to the recipient than the terms of the qualified settlement offer;
the court shall award attorney’s fees, costs, and expenses to the offeror upon the offeror’s motion.
(b) An award of attorney’s fees, costs, and expenses under this section must consist of attorney’s fees at a rate of not more than one hundred dollars ($100) per hour and other costs and expenses incurred by the offeror after the date of the qualified settlement offer. However, the award of attorney’s fees, costs, and expenses may not total more than one thousand dollars ($1,000).
(c) A motion for an award of attorney’s fees, costs, and expenses under this section must be filed not more than thirty (30) days after entry of judgment. The motion must be accompanied by an affidavit of the offeror or the offeror’s attorney establishing the amount of the attоrney’s fees and other costs and expensesincurred by the offeror after the date of the qualified settlement offer. The affidavit constitutes prima facie proof of the reasonableness of the amount.
Ind.Code § 34-50-1-6 (emphasis added).
The Court addresses the threshold question of whether Indiana Code § 34-50-1-6 is applicable in the instant federal case and finds that it is not because § 34-50-1-6 is in direct conflict with Federal Rule 68 when the rejected settlement offer was made by a defendant who obtains a favorable judgment.
The Court’s subject matter jurisdiction in this case is predicated upon federal question jurisdiction pursuant to 28 U.S.C. § 1331, and the Court has supplemental jurisdiction over the pendant state law claims pursuant to 28 U.S.C. § 1367. Under Erie Railroad Co. v. Tompkins,
When both a federal rule and a state law appear to govern a federal court sitting in diversity, or as in this case exercising supplemental jurisdiction, the court first must determine whether the scope of the federal rule “answers the question in dispute.” Shady Grove Orthopedic Assocs. v. Allstate Ins. Co.,
In this case, Federal Rule of Civil Procedure 68, which governs offers of judgment, is at issue. Federal Rule 68 provides that, if a defendant makes a settlement offer that is rejected and the plaintiff wins a smaller amount at trial, the plaintiff is liable for the costs incurred after the offer was made. See Fed. R.Civ.P. 68(d). Thus, the Court must determine if Federal Rule 68 answers the question of whether the Porter Township Defendants can recover attorney’s fees, costs, and expenses following a qualified settlement offer that was rejected by Plaintiffs when final judgment was entered in favor of Defendants. The Court finds that it does. Although the relevant analysis is whether there is a direct collision between Federal Rule 68 and Indiana Code § 34-50-1-6, the Court begins by comparing Federal Rule 68 and Indiana Trial Rule 68, both of which address “offers of judgment.”
Both Federal Rule 68 and Indiana Trial Rule 68 apply only to offers made by a defendant and provide that an offeror defendant is entitled to costs incurred after an offer of judgment is made if “the judgment that the offeree finally obtains is not more favorable than the unaccepted offer.” Fed.R.Civ.P. 68(d) (emphasis added); see also Ind. T.R. 68(d) (“If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.”). Based on their plain language, both rules have been held not to allow a defendant to recover costs when judgment is entered in the defendant’s favor because no judgment was “obtained” by the plaintiff. See Delta Air Lines v. August,
The language of both Federal Rule 68 and Indiana Trial Rule 68 allows for an award of “costs.” The United States Supreme Court held that, under Rule 68, which does not have its own definition of “costs,” “all costs properly award-ablе in an action are to be considered within the scope of Rule 68 ‘costs,’ ” and, thus, “where the underlying statute defines ‘costs’ to include attorney’s fees, ... such fees are to be included as costs for purposes of Rule 68.” Marek v. Chesny,
The Court now turns to the comparison of Indiana Code § 34-50-1-6 and Federal Rule 68. In contrast with Indiana Trial Rule 68 and Federal Rule 68, which apply only to offers by defendants, § 34-50-1-6 applies to settlement offers by defendants as well as settlement demands by plaintiffs. See Hanninen v. Koch,
The award of attorney’s fees under § 34-50-1-6 to a defendant following a defense verdict at trial when the same would not be available under Indiana Trial Rule 68 is consistent with the differences in the wording of the provisions. Section 34-50-1-6 applies when the “final judgment is less favorable” to the offeree, regardless of whether the final judgment is obtained by the offeree or the offeror, whereas Indiana Trial Rule 68 applies to a less favorable “judgment finally obtained by the offeree.” See Ingram v. Key,
Finally, although attorney’s fees under § 34-50-1-6 are awarded to a prevailing defendant following a trial, it is not clear whether such an award of attorney’s fees is available when the “final judgment” in favor of a defendant is a ruling on summary judgment. The Court has not found any authority on point. In one scholarly article written at the time the Indiana statute was being passed and enacted, a commentator opined on the limited effect the “qualified settlement offer” would have on litigation in Indiana but also noted that the greatest impact might be seen in questionable claims subject to summary judgment: “If these provisions are held to apply to any type of judgment, including summary judgment, defendants may begin to offer minimal, token settlement offеrs in order to recover some of their attorney’s fees, costs, and expenses if the summary judgment is granted.” Wirick, Andrew P. and Ann Marie Waldron Piscione, Tort Law Reform (?) and Other Developments in Indiana Tort Law, 29 Ind. L.Rev. 1097, 1104 (1996) (emphasis added). The Court has not identified any reported cases or other commentary since the scholarly article in which § 34-50-1-6 was applied following a summary judgment ruling. For the purpose of the instant preclusion analysis only, the Court assumes without deciding that § 34-50-1-6 applies to a final judgment based on a summary judgment ruling.
Similarly, the instant case involves a defendant’s offer of settlement, and, like the Wisconsin statute in S.A. Healy, Indiana Code § 34-50-1-6 and Federal Rule 68 cover the identical issue because both address a defendant’s offer of settlement. Thus, S.A. Healy compels the Court to find that the Indiana statute must give way because, like the Wisconsin statute, the Indiana statute requires that the offer of settlement be made more days in advance of trial (30 days) than Federal Rule 68 (14 days). See Ind.Code § 34-50-1-2; Fed.R.Civ.P. 68(a). Under S.A. Healy, this is a sufficient inconsistency to make the Indiana statute give way because both rules could not be applied if the offer were made in the window between 14 and 29 days. See
There is an additional “direct collision” between Indiana Cоde § 34-50-1-6 and Federal Rule 68 not raised by the Seventh Circuit in S.A. Healy in its discussion of the Wisconsin statute. As discussed above, Federal Rule 68(d) is not applicable to a prevailing defendant. Delta Air Lines,
Because Indiana courts have interpreted the Indiana statute to allow for what the Seventh Circuit has described as a “sanction” for a rejected settlement offer by a prevailing defendant when the United States Supreme Court has explicitly precluded the same, there is a direct collision, and the federal rule applies. See Shady Grove,
CONCLUSION
Based on the foregoing, the Court hereby GRANTS in part and DENIES in part Porter Township School Corporation and Boone Grove Middle School’s Motion for Attorney Fees [DE 43]. The Court ORDERS the Porter Township Defendants to FILE on or before November 18, 2013, a Supplemental Affidavit and supporting documentation setting forth the attorney’s fees incurred by the Porter Township Defendants in responding to Plaintiffs’ May 28, 2013 Motion for Relief from Judgment.
Notes
. The history of Northern District of Indiana Local Rule 54-1 further demonstrаtes that Federal Rule 54(d)(2)(B)'s 14-day deadline applies to a motion for § 1988 attorney’s fees in this District. First, the 1995 amendment to the rule reduced the time to file a request for attorney's fees from 90 days (set in 1987) to 14 days “to conform with Fed.R.Civ.P. 54(d)(2)(B).” See www.innd.uscourts.gov/ docs/localrules/CompilationófLocalRules.pdf (N.D. Ind. L.R. 54.1 (2009)). The Committee Comments to the rule's 2000 amendment reiterate that the rule addresses both taxation of costs and the assessment of attorney’s fees. Id. The 2009 version of the rule was titled "Taxation of Costs and Attorneys Fees” and provided, in relevant part: "Except as otherwise provided by statute, rule, or court order, a party shall have fourteen (14) days from the entry of a final judgment to file and serve a request for the taxation of costs and for assessment of attorney fees.” Id. With the restyling of the Local Rules effective Jаnuary 1, 2012, the rule's title dropped the reference to “attorneys fees,” and the rule took the form set forth above as Local Rule 54-1. The “Guiding Principles” governing the restyling
. Although § 1988 does not expressly authorize prevailing defendants to recover attorney’s fees incurred defending against state law claims, the Seventh Circuit Court of Appeals has stated that such a recovery may be appropriate when the state law claims are brought concurrently with a § 1983 claim and arise out of the same facts. See Munson v. Milwaukee Bd. of School Dirs.,
. Because one of the “sanctions” at issue in S.A. Healy was post-offer interest, the court also considered whether the motion was subject to the filing deadline of Federal Rule of Civil Procedure 59(e) (10 days at the time; now 28 days), and found that it was not applicable. S.A. Healy Co. v. Milwaukee Metro. Sewerage Dist.,
. The statute applies only to a tort action. See Ind.Code § 34-50-l-l(a). Although Plaintiffs' Complaint did not specifically identify the legal bases for their claims, the plain language of the Complaint sounds in tort: "Due to the willful and deliberate behavior of [the Pоrter Township Defendants] in refusing to permit her to enroll in an open-enrollment public school, [D.S.] has undergone pain, suffering, emotional distress and interference in her access to public education, all in denial of her Civil and Constitutional Rights, and George and Debbie have undergone pain, suffering, emotional distress and loss of reputation in their community.” Compl. ¶ 20. In ruling on summary judgment, the Court granted summary judgment in favor of Defendants on state law claims of intentional infliction of emotional distress and defamation or false light invasion of privacy.
. See also Marx v. Gen. Rev. Corp., - U.S. -,
. "Costs” under Indiana Trial Rule 68 also do not include litigation costs. Muenich v. Gulden,
. As set forth in the prior section, prevailing defendants may be awarded attorney’s fees under § 1988 only upon a finding that the plaintiffs claim is "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Christiansburg Garment Co. v. EEOC,
. In Marek v. Chesny, the plaintiff rejected an offer of judgment made by defendants and subsequently won a judgment for less than the settlement offer.
Subsequently, in a § 1983 case in which the plaintiff obtained a favorable judgment but for less than the Federal Rule 68 offer of judgment made by the defendant, the Seventh Circuit Court of Appeals held that the defendant who made the spurned offer was not a "prevailing party” for purposes of attorney’s fees under § 1988 and, thus, was not entitled to an award of attorney’s fees as part of the costs to which the defendant was otherwise entitled under Federal Rule 68. Payne v. Milwaukee Cnty.,
. The Court has identified three other Indiana Verdict and Settlement Summary Forms with defense trial verdicts in which a qualified settlement offer is identified as having been made but no request or motion for attorney’s fees or award of attorney’s fees is noted on the Form. See Stockton v. Bohnert,
. The court rejected any interpretation of Federal Rule 68 as saying "outright that no defendant may be penalized for failing to accept a settlement demand,” which would have directly conflicted with the Wisconsin statute that allows for an award of costs to a prevailing plaintiff following a rejected settlement demand. S.A. Healy Co.,
. In Menchise v. Akerman Senterfitt, the Eleventh Circuit Court of Appeals held that, in an action governed by Florida law, the Florida statute governing an offer of settlement was not preempted by Rule 68 even though it allowed an award of attorney’s fees to a prevailing defеndant, reasoning that there was no direct conflict because the Florida statute allows for attorney’s fees and costs whereas Rule 68 only allows for costs.
The Court finds the reasoning in Menchise unpersuasive. First, as to the distinction between "attorney’s fees” and "costs,” the distinction is without a difference under the reasoning in S.A. Healy. In S.A. Healy, the Seventh Circuit Court of Appeals treated both the Wisconsin statute's award of "costs” and "interest” as well as Rule 68 "costs” as a “sanction.”