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Chesny v. Marek

Citation. Chesny v. Marek, 720 F.2d 474, 37 Fed. R. Serv. 2d (Callaghan) 941 (7th Cir. Ill. Nov. 3, 1983)
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Brief Fact Summary

In a federal civil rights action, Marek (Defendant) argued that a Fed. R. Civ. P. 68 offer precluded the awarding of attorney fees to Chesny (Plaintiff), the recipient of a judgment that was less than the amount of the offe

Synopsis of Rule of Law.

Under 42 U.S.C. § 1988, a Fed. R. Civ. P. 68 offer may not preclude the awarding of attorney fees.


Chesny (Plaintiff) brought a federal civil rights action against numerous defendants, claiming excessive use of force.  A Fed. R. Civ. P. 68 offer of $100,000 was made at one point near trial, which was rejected by Plaintiff, and the case went to trial.  The jury awarded $60,000.  The district court, pursuant to 42 U.S.C. S 1988, awarded Plaintiff attorney fees, but not for te time after the Rule 68 offer was rejected, ruling that Plaintiff’s lesser verdict precluded such an award.  Plaintiff appealed.


Under 42 U.S.C. § 1988, may a Fed. R. Civ. P. 68 offer preclude the awarding of attorney fees?


(Posner, J.)  No.  Under 42 U.S.C. § 1988, a Fed. R. Civ. P. 68 offer may not preclude the awarding of attorney fees.  Fed. R. Civ. P. 68 provides that when a defendant makes an offer to allow judgment to be entered, and a plaintiff rejects same, the offeree must pay the defendant’s costs for the time following rejection.  Section 1988 provides for a successful plaintiff in a civil rights action to recover attorney fees.  The question is whether Fed. R. Civ. P. 68 prohibits a successful plaintiff from recovering his fees under § 1988.  This court does not believe so.  Rule 68 only speaks of “costsâ€; attorney fees are different than costs.  In addition to that, 42 U.S.C. § 1988 was enacted to encourage meritorious civil rights actions; to allow Rule 68 to prohibit the awarding of such costs would undercut the policies behind § 1988.  The Rules Enabling Act, 28 U.S.C. § 2072, provides that the Federal Rules of Civil Procedure should not be interpreted to abridge substantive rights.  The construction of Rule 68 as urged by Marek (Defendant) would do this.  Affirmed in part, reversed in part, and remanded.


Congress enacted § 1988 in 1976 based on the perception that the federal government was lacking in resources to look into all incidents of civil rights violations.  The purpose was the encourage civil litigation with merit.

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