harassment. There was relatively little dispute as to the events themselves but considerable dispute both as to exactly what happened and as to the significance of the events in relation to plaintiff's claims. It became apparent, however, and was later confirmed by plaintiff's proof at trial, that the central issue in the action concerned the events at block training in April 1983, and the alleged retaliatory threats by Sheriff's deputies against plaintiff later that month because of plaintiff's complaints about them. Block training was a one-week law enforcement training seminar held by the Sonoma County Sheriff's Department at Santa Rosa Junior College. Plaintiff claimed that she had been sexually taunted and touched by sheriff's deputies during the seminar and that threats were made against her later when she complained to the Sheriff. Defendants denied these charges.
On March 11, 1985, the County defendants made a Rule 68 offer of judgment for $200,000 plus costs and attorneys' fees to be determined by the Court. On March 19, 1985, plaintiff rejected the offer, asserted that it was defective under Rule 68 because it had not been served on co-defendants Radabaugh and Cameron, and made a counter-offer of $325,000 plus costs and attorneys' fees. On April 10, 1985, the County defendants filed a waiver of notice of the Rule 68 offer by the Junior College defendants.
In June 1985, plaintiff and the Junior College defendants settled her claims against them for $25,000 plus attorneys' fees to be fixed by the Court. On October 21, 1985, the Court granted defendant Nunez's motion to dismiss. The case went to trial before a jury on October 29, 1985. At the start of the trial, plaintiff dismissed with prejudice all of her claims against defendant Zanzi, and her federal claims against defendants Sotelo and Howard, and dismissed without prejudice her state claims against Sotelo and Howard.
The trial proceeded on plaintiff's six remaining claims against the County and the Sheriff. After 20 days of trial, the jury returned a general verdict for plaintiff of $50,000. The Court subsequently ruled for plaintiff on her Title VII claim, and awarded her an additional $34,600 to bring her total damages to an amount equal to the lost back pay and six months' front pay for retraining. These motions followed.
The Rule 68 Offer
Plaintiff contends that the County defendants' Rule 68 offer was invalid because it was not timely served on defendants Radabaugh and Cameron. Rule 68 states as to service, that "a party defending against a claim may serve upon the adverse party an offer . . . ." Rule 5(a), the general service rule, states that "except as otherwise provided in these rules, every . . . offer of judgment . . . shall be served upon each of the parties." Inasmuch as Rule 68, which deals specifically with offers of judgment, allows a party to serve it "upon the adverse party," it may be inconsistent with Rule 5(a) and hence fall within the "otherwise provided" clause.
Even if Rule 5(a) were held to apply, it is difficult to see how defendants' failure to serve a codefendant should enable the plaintiff to escape the obligations of Rule 68. No prejudice to plaintiff flowing from the service failure has been demonstrated, and none is conceivable. If there were prejudice to codefendants, plaintiff would have no standing to raise it and it has in any event been cured by the filing of their waivers. Accordingly, the offer of judgment was valid. Cf. Scheriff v. Beck, 452 F. Supp. 1254, 1259 (D. Colo. 1978) (procedural error in Rule 68 offer correctable by subsequent action).
Plaintiff also contends that Rule 68 does not apply because it cannot be determined whether "the judgment finally obtained . . . is not more favorable than the offer." This is said to be true because three of the individual County defendants were dismissed before trial and actions against them remain pending in state court. Plaintiff claims that eventually her total recovery against all County defendants may exceed the amount of the offer.
It seems clear from the language of the rule that it contemplates only the judgment rendered in the action in which the offer is made. Had the result claimed by plaintiff been intended, the rule would have referred to recovery instead of judgment. Moreover, any other interpretation, aside from being strained and illogical, would open a large gap in the rule and introduce considerable uncertainty over just when a judgment finally obtained is or is not more favorable. To so undermine the utility of this rule would be inconsistent with the Supreme Court's treatment of it as an important settlement device. See Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 87 L. Ed. 2d 1 (1985).
Rule 68 requires the unsuccessful offeree to "pay the costs incurred after the making of the offer." In Marek v. Chesny, the Supreme Court held that costs as used in Rule 68 include statutory attorneys' fees. Defendants argue that Marek should be applied to bar an award for post-offer attorneys' fees.
Marek was decided in June 1985, three months after defendants' offer. At the time the offer was made, plaintiff had no reason to expect that it would affect her ability to collect statutory attorneys' fees. The Marek decision clearly creates a different set of conditions under which civil rights plaintiffs must evaluate Rule 68 offers. To apply it retroactively would significantly prejudice plaintiff. See Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986) slip op. at 8 (no retroactive application of shortened statute of limitations); Rivera v. Green, 775 F.2d 1381 (9th Cir. 1985) (retroactive application of lengthened statute of limitations).
Accordingly, defendants' Rule 68 offer will be given effect but only to bar plaintiff's recovery of taxable costs incurred after March 11, 1985.
Motion for Stay of Proceedings or For Leave to Conduct Additional Discovery
Defendants ask that the fee application proceedings be stayed pending a decision by the Supreme Court in City of Riverside v. Rivera, supra. In that case an award of attorneys' fees greatly in excess of the amount of damages recovered is under review. It is thought that the issue of proportionality is implicated.
There is no need for a stay. Attorneys' fees applications must be decided on the facts of each case. The general principles governing disposition of this application are adequately stated in Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), and other cases.
There is also no need for further discovery. "A request for attorney's fees should not result in a second major litigation." Hensley, supra, 461 U.S. at 437. The parties have amassed an abundant record on this application; the Court, having presided over this case since its filing, is familiar with it and is unable to envision any additional useful information that discovery might generate.
Motion to Reconsider the Title VII Award
Both parties have moved to reconsider the Court's Title VII ruling. In finding liability, the Court, as it stated in advance that it would, accepted the jury verdict as advisory. In awarding damages, the Court exercised its discretion to fix an award that in the aggregate would compensate plaintiff in full for lost back pay and for the cost of retraining for a new occupation. The motions are without merit and will be denied.
Plaintiff seeks attorneys' fees from the County defendants in an amount of $925,157.55, consisting of compensation of $784,764.01 for 5,465.14 hours of attorneys' time, $106,988.98 for disbursements and $26,399.59 as taxable costs.
In addition, pursuant to the settlement with the Junior College defendants, she seeks attorneys' fees and disbursements from them in the amount of $37,658.19.
In Hensley v. Eckerhart, supra, 461 U.S. at 433, the Court said:
The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services.
Plaintiff has submitted adequate documentation supporting the fact of the hours worked and the disbursements incurred. Defendants question the accuracy of some of the entries and the reasonableness and necessity of others. In view of the magnitude of the fee request, however, it would serve no useful purpose to tackle it by making particularized adjustments. The principle that controls the disposition of this application was stated in Hensley :
If, . . . a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.