NOTES TO RULE 68
HISTORY: (Amended Mar. 19, 1948; July 1, 1966; Aug. 1, 1987)
Notes of Advisory Committee on Rules.
See 2 Minn Stat (Mason, 1927) § 9323; 4 Mont Rev Codes Ann (1935) § 9770; NYCPA (1937) § 177.
For the recovery of costs against the United States, see Rule 54(d).
Notes of Advisory Committee on 1948 Amendments to Rules.
The third sentence of Rule 68 has been altered to make clear that evidence of an unaccepted offer is admissible in a proceeding to determine the costs of the action but is not otherwise admissible.
The two sentences substituted for the deleted last sentence of the rule assure a party the right to make a second offer where the situation permits--as, for example, where a prior offer was not accepted but the plaintiff's judgment is nullified and a new trial ordered, whereupon the defendant desires to make a second offer. It is implicit, however, that as long as the case continues--whether there be a first, second or third trial--and the defendant makes no further offer, his first and only offer will operate to save him the costs from the time of that offer if the plaintiff ultimately obtains a judgment less than the sum offered. In the case of successive offers not accepted, the offeror is saved the costs incurred after the making of the offer which was equal to or greater than the judgment ultimately obtained. These provisions should serve to encourage settlements and avoid protracted litigation.
The phrase "before the trial begins," in the first sentence of the rule, has been construed in Cover v Chicago Eye Shield Co., CCA 7th, 1943, 136 F2d 374, cert den 1943, 320 US 749, 88 L Ed 445, 64 S Ct 53.
Notes of Advisory Committee on 1966 Amendments to Rules.
This logical extension of the concept of offer of judgment is suggested by the common admiralty practice of determining liability before the amount of liability is determined.
Notes of Advisory Committee on 1987 amendments to Rules.
The amendments are technical. No substantive change is intended.