Offer of Judgment Did Not Include Attorney’s Fees Where Plaintiff Was Not Prevailing Party Under State Law

In Marek v. Chesny, 473 U.S. 1 (1985), the U.S. Supreme Court held that the amount of an offer of judgment under Fed. R. Civ. P. 68 implicitly included attorney’s fees where plaintiff’s claims were brought under a federal statute entitling a prevailing plaintiff to fees. When the plaintiff prevailed but the verdict did not exceed the offer, plaintiff received no fee award. In Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016 (9th Cir. Sept. 8, 2003), an analogous situation under state law produced a similar result. The court held that Rule 68 “does not permit an award of post-offer attorneys’ fees when the underlying state statute authorizes an award of attorneys’ fees to a prevailing party as part of costs, but when the party seeking attorneys’ fees under the rule is not a prevailing party within the meaning of that statute.”