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Perri v. Resorts International Hotel, Inc.

United States District Court, Third Circuit

January 16, 2014

DOMINIC PERRI, Plaintiff,
v.
RESORTS INTERNATIONAL HOTEL, INC., Defendant.

MEMORANDUM OPINION AND ORDER

ANN MARIE DONIO, Magistrate Judge.

Presently before the Court is the application of Resorts International Hotel, Inc. (hereinafter, the "Defendant") for reimbursement of expenses pursuant to Federal Rule of Civil Procedure 68. Plaintiff Dominic Perri opposes the motion on the basis that the expenses do not meet the requirements for reimbursable expenses under Federal Rule of Civil Procedure 68 and that the application lacks sufficient documentation to support the request. The Court agrees with Plaintiff and for the reasons set forth herein, denies Defendant's application.

The Court shall set forth only the facts relevant to Defendant's application. Pursuant to Rule 68 of the Federal Rules of Civil Procedure, on March 7, 2011, Defendant made an Offer of Judgment to Plaintiff, Dominic Perri, prior to trial, "in the amount of $15, 000.00 in full satisfaction of all claims[.]" (Application for Reimbursement of Expenses Pursuant to Fed.R.Civ.P. 68 (hereinafter, "Def.'s Mot.") [Doc. No. 65-5], Ex. B.) On May 20, 2013, this personal injury matter proceeded to trial before a jury on the issues of causation and damages.[1] On May 22, 2013, the jury found that "the injuries claimed by the Plaintiff Dominic Perri were caused by the negligence of Resorts International Hotel, Inc. d/b/a Resorts Casino & Hotel, " and awarded Plaintiff $13, 817.47 for Plaintiff's past medical bills. (Jury Verdict Sheet [Doc. No. 60], 1.) However, as a result of a stipulation before trial, the parties agreed that the jury verdict should be molded, and consequently, the parties submitted a proposed judgment in the amount of $2, 310.44 on June 5, 2013. (See Letter [Doc. No. 63], 1.) The Court thereafter entered judgment in the reduced amount of $2, 310.44 on June 11, 2013.[2] (Judgment in a Civil Action [Doc. No. 64], 1.) Defendant now seeks reimbursement of litigation-related costs and expenses in the amount of $7, 700.64. (See Certification of Counsel in Support of the Application for Reimbursement of Expenses Pursuant to FED.R.CIV.P. 68 [Doc. No. 65-1], ¶ 12.)

Federal Rule of Civil Procedure 68 provides in relevant part that if the offeree ultimately obtains a judgment "not more favorable than the unaccepted offer, the offeree must pay the costs incurred after" the offeror made the offer. FED. R. CIV. P. 68(d).[3] An offer of judgment made pursuant to Rule 68 aims "to encourage settlements" and to "avoid protracted litigation[.]" 12 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3001 (2d ed. 2007). The Rule also "prompts both parties" to objectively "evaluate the risks and costs of litigation, and to balance [those risks] against the likelihood of success upon trial on the merits." Marek v. Chesny , 473 U.S. 1, 5 (1985). To that end, Rule 68 creates a cost-shifting mechanism, which "encourages plaintiffs to accept reasonable offers" and insulates the party willing to settle from the burden of certain costs that subsequently accrue. Crescenzo v. Healthcare Revenue Recovery Grp. , 842 F.Supp.2d 1340, 1344 (S.D. Fla. 2012).

The costs recoverable under Rule 68 are limited to "those enumerated in 28 U.S.C. § 1920, unless the substantive law applicable to the particular cause of action expands the general § 1920 definition.'" Phillips v. Bartoo , 161 F.R.D. 352, 354 (N.D. Ill. 1995) (quoting Parkes v. Hall , 906 F.2d 658, 660 (11th Cir. 1990)); see also Turpin v. Marriott Corp., No. 92-4567, 1994 WL 551510, at *2 (E.D. Pa. Oct. 6, 1994) (noting that 28 U.S.C. § 1920 defines "costs" for the purposes of Rule 68). Specifically, "[f]ederal, not state law, determines the proper taxation of costs" where "no express state policy on costs directly relate[s] to the substantive cause of action." Turpin, 1994 WL 551510, at *1 (citing Chevalier v. Reliance Ins. Co. of Ill. , 953 F.2d 877, 885-86 (5th Cir. 1992)).

A "federal court sitting in diversity must apply state substantive law and federal procedural law." Liggon-Redding v. Estate of Sugarman , 659 F.3d 258, 262 (3d Cir. 2011) (citing Erie R.R. v. Tompkins , 304 U.S. 64, 78 (1938)). However, because "the Court applied the New Jersey's substantive law in the trial" of this action, [4] Defendant asserts "that New Jersey substantive law" must "dictate" the scope of recovery "under the Offer of Judgment Rule."[5] (Def.'s Reply [Doc. No. 74], 3.) Defendant further asserts that New Jersey's "substantive law" on costs, set forth in New Jersey's Offer of Judgment rule, controls the resolution of the pending application. (Brief in Reply to Plaintiff's Opposition to Defendant, Resorts International Hotel, Inc., Application for Reimbursement of Expenses Pursuant to Fed.R.Civ.P. 68 (hereinafter, "Def.'s Reply") [Doc. No. 74], 3 (citing New Jersey Court Rules 4:58-2, -3).) Defendant therefore alleges that it should be entitled to all "reasonable costs incurred as a result of the [P]laintiff's failure to accept a reasonable Offer of Judgment[, ]" rather than only those delineated in 28 U.S.C. § 1920. (Def.'s Reply [Doc. No. 74], 3-4.) Defendant provides neither case nor statutory authority to support its assertion that the New Jersey Offer of Judgment rule constitutes "substantive law applicable to [Plaintiff's] particular cause of action[.]'" Phillips , 161 F.R.D. at 354 (citation omitted).

New Jersey courts have concluded that the New Jersey Offer of Judgment rule, like Federal Rule of Civil Procedure 68, constitutes a " procedural mechanism intended to facilitate the settlement of litigation." Voorhees Office Ctr., LLC v. Target Bldg. Const., Inc., No. A-6337-08T3, 2010 WL 3933238, at *3 (N.J.Super. Ct. A.D. Oct. 4, 2010) (citing Wiese v. Dedhia , 911 A.2d 479 (N.J. 2006)) (emphasis added); see also Kas Oriental Rugs, Inc. v. Ellman , 972 A.2d 413, 421 (" Rule 4:58 is procedural in nature"). The Court concludes that the New Jersey Offer of Judgment rule is not a matter of substantive law applicable to Plaintiff's cause of action. Moreover, "[e]xcept in rare circumstances in which some important state interest is implicated, " "federal law" controls "the awarding of costs in an action in federal court." Baker v. Power Sec. Corp. , 174 F.R.D. 292, 294 (W.D.N.Y. 1997). Here, no such important state interest is implicated. The Court therefore rejects Defendant's assertion that the award of "reasonable costs" under New Jersey's Offer of Judgment rule governs resolution of the pending motion. See Humann v. KEM Elec. Co-op., Inc. , 497 F.3d 810, 813 (8th Cir. 2007) (citing 10 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2669 (3d ed.)) (noting that, the federal rule generally governs the "award of costs in federal court"); see also Conte v. Flota Mercante Del Estado , 277 F.2d 664, 672 (2d Cir. 1960) ("[a] court will tax ordinary court costs in accordance with its own practice[, ] rather than that of the state where the claim arose"). Therefore Defendant is not entitled to recover costs beyond those delineated in 28 U.S.C. § 1920. Phillips , 161 F.R.D. at 354 (citing Wahl v. Carrier Mfg. Co. , 511 F.2d 209, 217 (7th Cir. 1975)) ("without a specific underlying statute authorizing any other types of costs' not listed in § 1920, such as attorney's fees, postage, Federal Express fees, and messenger service fees, only the six types of costs listed § 1920 are taxable costs' included in Rule 68").

Accordingly, the scope of recovery in this action is limited to the following costs, set forth in 28 U.S.C. § 1920:

(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title [28 U.S.C. § 1923]; and
(6) Compensation of court[-]appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under ...

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