867 F.2d 291 (6th Cir. 1989), 87-3938, Hopper v. Euclid Manor Nursing Home, Inc.

Docket Nº:87-3938.
Citation:867 F.2d 291
Party Name:13 Fed.R.Serv.3d 317 Mary HOPPER, Plaintiff-Appellee, v. EUCLID MANOR NURSING HOME, INC., Defendant-Appellant.
Case Date:February 02, 1989
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 291

867 F.2d 291 (6th Cir. 1989)

13 Fed.R.Serv.3d 317

Mary HOPPER, Plaintiff-Appellee,



No. 87-3938.

United States Court of Appeals, Sixth Circuit

February 2, 1989

Argued Oct. 6, 1988.

Page 292

[Copyrighted Material Omitted]

Page 293

Howard A. Levy (argued), Maynard A. Buck, Cleveland, Ohio, for defendant-appellant.

Tyrone E. Reed, Roy M. Kaufman (argued), Cleveland, Ohio, for plaintiff-appellee.

Before KENNEDY, KRUPANSKY and BOGGS, Circuit Judges.

KENNEDY, Circuit Judge.

In an effort to foreclose defendant-appellant's (Euclid Manor Nursing Home, Inc.) entitlement to costs under Rule 68, Federal Rules of Civil Procedure, the District Court modified its earlier judgment awarding nominal damages to plaintiff-appellee Mary Hopper in this employment discrimination case. Defendant appeals, asserting that the District Court abused any discretion it might have under Rule 60(b)(6) in modifying the judgment to circumvent the mandatory application of Rule 68. We agree that it was an abuse of discretion to modify the judgment for this purpose. However, since the District Court had rejected defendant's request for attorney's fees under 42 U.S.C. Sec. 1988, defendant was not entitled under Rule 68 to attorney's fees as a part of costs.

Defendant nursing home employed plaintiff as a nurse from December 5, 1982 until her employment was terminated on December 18, 1984. Plaintiff filed this action alleging that her termination was racially discriminatory in violation of 42 U.S.C. Sec. 2000e (Title VII) and 42 U.S.C. Sec. 1981. Approximately three weeks prior to trial defendant made an offer of judgment pursuant to Rule 68 which would have permitted plaintiff to take judgment against defendant for $750.00. Plaintiff rejected this offer and the case proceeded to trial on April 23, 1987.

After completion of the trial, the District Court held that plaintiff had failed to prove all but one of her claims--that she was discriminatorily excluded from nurses' meetings in violation of section 1981. It awarded her nominal damages in the amount of $100.00 for the section 1981 violation.

Both plaintiff and defendant requested attorney's fees under section 1988. At a hearing on August 12, 1987 the District Court denied both requests. Defendant then moved for the award of costs pursuant to Rule 68. Rule 68 provides that after an offer of judgment is made and refused "the offeree must pay the costs incurred after the making of the offer" if the offeree obtains a final judgment less favorable than the offer. See Fed.R.Civ.P. 68. Costs in a civil rights case include any award of attorney's fees. Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). The District Court, applying Rule 68, "very reluctantly" held that defendant was entitled to attorney's fees as part of costs under Rule 68 but declined to make a specific award pending a hearing.

On September 1, 1987 the District Court conducted a telephone conference between counsel for the parties. During this conference the District Judge sua sponte vacated the award of nominal damages to plaintiff on her section 1981 claim. In a subsequent written opinion the District Court justified its oral ruling based upon Rule 60(b)(6) and entered judgment in favor of defendant on all claims--including the section 1981 claim for which it had previously awarded nominal damages. The District Court then denied defendant's motion for costs under Rule 68 because the rule is applicable only when the plaintiff obtains a judgment less favorable than the offer and not when the...

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