 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Catalina Yachts v. Pierce1/14/2005
calculated" under Rule 82, moreover, Rule 68(b)(1) similarly points beyond Rule 82(b)'s "Amount of Awards" provision, since Rule 82(a) is the only subsection of Rule 82 that uses the word "calculated."
The opinion's narrow reading of Rule 68(b)(1) suffers from logical as well as textual problems. By reading Rule 68(b)(1) to be mandatory and interpreting it to completely exclude Rule 82(a)'s "otherwise provided" exception, the opinion necessarily suggests the improbable conclusion that the offer-of-judgment rule "must" prevail over all exceptions set out in Rule 82(a) - that it would prevail, for example, even over a freely negotiated contract to waive recovery under the offer-of-judgment rule (an agreement that would otherwise fall within Rule 82(a)'s exception for provisions "otherwise . . . agreed to by the parties," which the opinion finds irrelevant for purposes of applying Rule 68(b)(1)).
By contrast, interpreting Rule 68(b)(1)'s reference to Rule 82 as one that encompasses all provisions of Rule 82 offers the advantages of being textually faithful to Rule 68's language and logically sound. By looking to the underlying cause of action to determine whether Rule 68 requires the offeree to pay fees, this interpretation aligns Alaska's offer-of-judgment provision with the approach adopted by the United States Supreme Court in Marek v. Chesny and numerous federal cases interpreting Marek. Wright and Miller approvingly describes the prevailing federal approach adopted in Marek as follows:
he Supreme Court was careful to specify in Marek that only "properly awardable" costs were to be awarded to defendants, and the lower courts have properly held that this means that civil-rights defendants can recover their fees as a part of costs under Rule 68 only if they can satisfy the otherwise-applicable standard for recovery by defendants.
Interpreting Rule 68 to embody this approach seems especially appropriate from a historical perspective: Rule 68(b)(1)'s language requiring an offeror's fees to be awarded "as would be calculated under Civil Rule . . . 82 if the offeror were the prevailing party" was added to Rule 68 in 1987, soon after Marek was decided. The timing of this amendment suggests that it meant to follow Marek's approach of determining the offeror's entitlement to attorney's fees by looking to the statute governing the underlying cause of action. This interpretation similarly comports with our own case law in analogous situations, which has consistently recognized that specific fee provisions in statutes creating substantive causes of action ordinarily supersede the general provisions of Rule 82.
Further, as I explain below, this interpretation also advances the Magnuson-Moss Act's primary goal of encouraging consumers to pursue small warranty claims, thus avoiding the troubling federal preemption problems caused by the opinion's narrow reading of Rule 68.
For all these reasons, I would conclude that, because Rule 82(a) would bar Catalina from recovering prevailing-party fees if it prevailed in this action, Rule 68(b)(1) did not entitle Catalina to an award of post-offer fees. While this reading of Rule 68 would make it unnecessary to resolve the question of federal preemption, the opinion's resolution of that issue requires me to address the point.
Initially, as to the first prong of the federal preemption test, I disagree with the opinion's premise that the Magnuson-Moss Act's "failure to award fees to defendants" amounts to "silence" on the issue of a defendant's right to prevailing-party fees, and so "distinguishes Magnuson-Moss from other federal laws that place limits on the circumstances in which defendants can rece
Page 1 2 3 4 5 6 7 8 9 Alaska Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|