Title: Too Late to Stipulate: Reconciling Rule 68 with Summary Judgments
Abstract: Imagine a typical lawsuit between two parties, plaintiff and defendant. The litigants have reached the final days of pretrial litigation, and like any good defense counsel, the defendant's lawyer hopes to dismiss the case before going to trial. He moves for summary judgment—increasingly common in modern litiga tion1—and raises the possibility of settlement with the plaintiff. Hoping to strong-arm an end to the case, he decides to send the plaintiff a special settlement under Federal Rule of Civil Procedure 68 called an offer of If the plaintiff ac cepts this offer, the court will automatically enter judgment against the defendant according to the offer's terms. The case will end. But if the plaintiff declines the offer, Rule 68 may make the plaintiff liable for costs that the defendant incurs dur ing subsequent litigation.2 This risk of increased costs means the plaintiff should think seriously about accepting the offer. Before the plaintiff makes a decision, however, the judge grants full summary judgment for the defendant. The plaintiff has lost—at least in the eyes of the court. But plaintiffs counsel sees an opportunity to turn things around. As soon as he learns of the summary judgment ruling, the plaintiff contacts the de fendant to accept his of judgment. The defendant protests, but the plaintiff points out that the Rule makes no exception for
Publication Year: 2014
Publication Date: 2014-01-01
Language: en
Type: article
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