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Wichita Fireman's Relief Association v. Kansas City Life Insurance Co.

United States District Court, D. Kansas

May 8, 2017



          KENNETH G. GALE United States Magistrate Judge.

         Before the Court are the “Rule 59(e) Motion to Alter or Amend Judgment” (Doc. 551) filed by Defendant as well as the competing Bill of Costs filed by both parties (Docs. 552, 554). Having reviewed the submissions of the parties, the Court GRANTS Defendant's Motion to Alter or Amend Judgment and ORDERS the Clerk to enter Defendant's Bill of Costs, minus the revision discussed below.


         Plaintiff's claim in the underlying lawsuit is for payment of an Accidental Death and Dismemberment insurance benefit arising out of the death of Wichita firefighter Captain Urban Eck. Given its lengthy and contentious history, the factual background of this case has been summarized numerous times. Those summaries are incorporated herein by reference. (See e.g., Doc. 140, at 1-2, Doc. 189, at 1-3, Doc. 311, at 1-3, Doc. 401, at 3-11, Doc. 440, at 3-5; Doc. 544, at 3-11.) The following are the facts relevant to the matter before the Court.

         Plaintiff filed the present action on December 17, 2010, in Sedgwick County, Kansas, District Court. (Doc. 1-1, at 1.) It was removed to Federal Court by Defendant in January 2011. (Doc. 1.)

         Pursuant to Fed.R.Civ.P. 68, Defendant served Plaintiff with an Offer of Judgment on September 22, 2011. (Doc. 90; Doc. 558-1, at 3-4.) The offer was for a principal amount of $101, 000, including Plaintiff's request for attorneys' fees, as well as prejudgment interests and costs then accrued (not to include attorneys' fees). (Doc. 558-1, at 3.)

         Plaintiff rejected the offer and instead filed its “Motion to Clarify Offer of Judgment and to Strike.” (Doc. 93.) Plaintiff argued that the offer was “defective, creating an ambiguity” and was not made in good faith. (Id.) The Court denied Plaintiff's motion, finding the Offer to be appropriate pursuant to Fed.R.Civ.P. 68. (See Doc. 128, at 11-15.)

         The case proceeded and the undersigned Magistrate Judge granted Defendant's Motion for Summary Judgment in February 2014, dismissing Plaintiff's claims for breach of contract and attorney's fees claims (Doc. 401) and entering judgment in favor of Defendant (Doc. 402). Plaintiff appealed this ruling to the Tenth Circuit Court of Appeals (Doc. 403, 405), which reversed and remanded in May, 2015. (Doc. 414.)

         Plaintiff submitted a bill of costs to the Tenth Circuit pursuant to Fed.R.App.Proc. 39(a)(3), which provides that appellate costs are taxed against the appellee when the judgment of the District Court is reversed. Although Defendant opposed the bill of costs and requested that the Tenth Circuit wait until the conclusion of the District Court proceedings, the Tenth Circuit declined to do so. Defendant was taxed $4, 366 in appellate costs (Doc. 416), which Defendant paid.

         Proceedings resumed in this Court in June 2015, with the case ultimately going to trial in May 2016. The jury eventually returned a verdict in favor of Plaintiff in the amount of $100, 000. (Doc. 491.) The issue of attorneys fees was subsequently brought for a bench trial, with the undersigned Magistrate Judge denying Plaintiff's request for attorneys' fees. (See Doc. 544.) The final judgment was entered on February 21, 2017, awarding Plaintiff $100, 000 plus prejudgment interest, the costs of this action, and post-judgment interest. (Doc. 545.)


         Fed.R.Civ.P. 59(e) allows a party to file a motion to alter or amend a judgment within 28 days after the entry of judgment for one of the following grounds: (1) an intervening change in law; (2) new evidence that was previously unavailable; and (3) the need to correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (listing Rule 59(e) factors). Defendant brings its present “Rule 59(e) Motion to Alter or Amend Judgment” pursuant to the final of the listed grounds, arguing that Plaintiff

is not entitled to such costs after September 22, 2011[, ] due to [Defendant's] offer of judgment. [Defendant] therefore respectfully requests that the Final Judgment be altered or amended to award WFRA only its pre-offer costs (other than attorney's fees), and to award [Defendant] its post-offer costs.

Doc. 551, at 1.)

         Fed.R.Civ.P. 68 sets out the procedure for making an offer of judgment as follows:

(a) Making an Offer; Judgment on an Accepted Offer. 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.
(b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.
(c) Offer After Liability is Determined. When one party's liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time - but at least 14 days - ...

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