United States District Court, D. Kansas
MEMORANDUM AND ORDER
KENNETH G. GALE United States Magistrate Judge.
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.
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.
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.
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.)
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.)
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.)
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.
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.)
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.)
68 sets out the procedure for making an offer of judgment as
(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 -