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Steele v. KMG Enterprises, Inc.

United States District Court, Tenth Circuit

January 7, 2014

JANA STEELE, Plaintiff,
v.
KMG ENTERPRISES, INC., d/b/a/ IHOP OF LAWRENCE, Defendant.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, United States District Judge

Jana Steele brought this suit against KMG Enterprises, Inc., d/b/a/ IHOP of Lawrence, asserting employment discrimination under Title VII, 42 U.S.C. § 2000e, and the Kansas Acts Against Discrimination, K.S.A. § 44-1009 et seq. On May 24, 2013, plaintiff accepted defendant’s offer of judgment for $7, 500.00. See Defendant’s Offer Of Judgment (Doc. #30); Notice Of Plaintiff’s’ Acceptance Of Defendant’s Offer Of Judgment (Doc. #31), both filed May 24, 2013. This matter comes before the Court on Plaintiff’s Motion For Costs and Attorney Fees (Doc. #38) filed June 26, 2013. For reasons set forth below, the Court finds that the motion should be overruled.

Factual Background

On May 24, 2013, defendant made an offer of judgment under Rule 68, Fed. R. Civ. P., as follows:

Defendant KMG Enterprises, Inc. d/b/a IHOP of Lawrence, by undersigned counsel, and pursuant to Federal Rule of Civil Procedure 68, makes the following Offer of Judgment, which shall expire if not accepted by Plaintiff within fourteen (14) days of service. This offer may only be accepted if, within fourteen (14) days after service of this offer, Plaintiff serves written notice that the offer is accepted, and then this offer, together with a Notice of Acceptance, will serve as the basis of a judgment entry for the District Court.
If the offer is not accepted by the Plaintiff as set forth in Rule 68, it shall be deemed withdrawn and evidence thereof is not admissible. If the Plaintiff fails to obtain a judgment more favorable than that offer, the Plaintiff shall not recover costs in the Court from the time of this offer, but shall pay costs from that time.
Defendant’s offer is to allow judgment to be taken against it on all counts for the total sum of $7, 500.00.
For purposes of clarification, Defendant does not offer $7, 500.00 plus attorneys’ fees. Defendant does not offer $7, 500.00 for each count. Rather, the total amount of the judgment offered to Plaintiff is $7, 500.00.
By making this offer, and even if accepted by Plaintiff, Defendant does not admit that it violated any law, statute or ordinance or breached any duty to Plaintiff.

Doc. #30. That same day, plaintiff accepted the offer. Doc. #31.

On June 19, 2013, plaintiff’s counsel sent defendant an email which stated, among other things, that “pursuant to Rule 68, plaintiff is a prevailing party and will be seeking her attorneys fees and costs.” Doc. #37-2. Plaintiff seeks $53, 008.50 in attorney’s fees and $3, 856.65 in costs.

Analysis

Rule 68, Fed. R. Civ. P., provides in pertinent part as follows:

At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment. . . . [If the offer is not accepted] and the judgment that the offeree ...

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