United States District Court, D. Kansas
IT'S GREEK TO ME, INC. d/b/a GTM SPORTSWEAR and HANESBRAND, INC. as plan administrator of the GTM EMPLOYEE HEALTH CARE PLAN, Plaintiffs,
JEFFREY S. FISHER and BRETZ & YOUNG, LLC, Defendants.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Kathryn H. Vratil, United States District Judge
September 18, 2017, administrators of the GTM Employee Health
Care Plan (“the Plan”) filed suit against Jeffrey
S. Fisher and Bretz & Young, LLC. Complaint
(Doc. #1). Plaintiffs seek damages and equitable relief,
claiming that defendants failed to remit to the Plan funds
recovered in a personal injury lawsuit. Id. On March
20, 2018, Bretz & Young served a Rule 68, Fed. R. Civ.
P., offer of judgment on plaintiffs. Certificate Of
Service (Doc. #51). On March 28, 2018, plaintiffs
accepted the offer and filed Plaintiffs' Notice Of
Acceptance Of Defendant Bretz & Young, LLC's Offer Of
Judgment (Doc. #52). On April 13, 2018, notwithstanding the
fact that neither the Court nor Clerk had entered judgment,
plaintiffs and Bretz & Young filed a Joint
Satisfaction Of Judgment (Doc. #53). This notice stated
that Bretz & Young had provided payment to plaintiffs to
resolve all claims against it and that “the judgment is
satisfied in full and the case against Bretz & Young,
LLC, shall be dismissed with prejudice.” Id.
Rule 68(a), the clerk must enter judgment upon the filing of
an offer of judgment, notice of acceptance of such offer and
proof of service. Fed.R.Civ.P. 68(a). However, when a Rule
68(a) offer of judgment directs entry of judgment against
fewer than all the claims or parties, the Clerk's
judgment can be revised at any time before the adjudication
of all claims in the suit under Rule 54(b). Fed.R.Civ.P.
54(b). Accordingly, in cases such as this, where the offer of
judgment contemplates a final, non-revisable judgment, the
Court should enter judgment under Rule 54(b), Fed.R.Civ.P.
See Suenos, LLC v. Goldman, No. CV10-1034-TL, 2011
WL 13119331, at *1 (D. Ariz. Nov. 17, 2011) (offer of
judgment which does not involve all parties or claims
requires entry of judgment pursuant to Rule 54(b)); see
Brown v. Patelco Credit Union, No. 09-CV-5393, 2010 WL
5439714, at *3 (N.D. Ill.Dec. 28, 2010) (construing offer of
judgment as Rule 54(b) judgment); see Acceptance Indem.
Ins. Co. v. Se. Forge, Inc., 209 F.R.D. 697, 700 (M.D.
Ga. 2002) (entry of judgment against fewer than all parties
pursuant to offer of judgment requires Rule 54(b) findings).
54(b) provides as follows:
[w]hen an action presents more than one claim for relief . .
. or when multiple parties are involved, the court
may direct entry of final judgment as to one or more, but
fewer than all, claims or parties only if the court
expressly determines that there is no just reason for
delay. Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not
end the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
Fed. R. Civ. P. 54(b) (emphasis added). District courts do
not routinely enter Rule 54(b) judgments. Okla. Turnpike
Auth. v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001).
In making a Rule 54(b) determination, a district court should
exercise its discretion “in the interests of sound
judicial administration” by preventing piecemeal
appeals. Curtiss-Wright Corp. v. Gen. Elec. Co., 446
U.S. 1, 8 (1980) (quoting Sears, Roebuck & Co. v.
Mackey, 351 U.S. 427, 437 (1956)). To enter judgment
under Rule 54(b), the Court must find that there (1) has been
a final decision as to one claim or one party and (2) is no
just reason to delay entry of judgment. See Jordan v.
Pugh, 425 F.3d 820, 827 (10th Cir. 2005); see also
Okla. Turnpike Auth., 259 F.3d at 1242. “No
precise test has been developed for determining whether just
cause exists for delay, but generally courts have weighed
Rule 54(b)'s policy of preventing piecemeal appeals
against the hardship or injustice that might be inflicted on
a litigant because of the delay.” United Bank of
Pueblo v. Hartford Acc. & Indem. Co., 529 F.2d 490,
492 (10th Cir. 1976) (quotation and citation omitted);
see also Jordan, 425 F.3d at 827 (no
Rule 68(a) offer of judgment which plaintiffs accepted
purports to “resolve all claims against Defendant Bretz
& Young.” Offer Of Judgment (Doc. #52-1)
filed March 28, 2018. Thus, if the Clerk enters judgment,
such judgment would represent the final adjudication of all
claims against Bretz & Young. Further, because plaintiffs
and Bretz & Young have stipulated to judgment upon
mutually-agreeable terms, it presents little risk of appeal.
See Suenos, 2011 WL 13119331, at *1 (no danger of
appeal when settlement); see also Apkins v. Atl. Marine,
Inc., No. 05-0456-WS-B, 2006 WL 2135789, at *3 (S.D.
Ala. July 28, 2006) (same). The Court orders all parties to
show cause why final judgment on those claims should not be
entered. The parties shall respond to this order to show
cause on or before Monday, April 30,
IS SO ORDERED.
 Shortly after plaintiffs filed their
notice of acceptance, chambers received a call from counsel.
In the call, counsel indicated a desire to delay entry of
judgment pursuant to Rule 68(a) because of ongoing settlement
discussions which could resolve all claims in the case.
Counsel was ...