The opinion of the court was delivered by: SCHWARZER
Before the Court are several post-trial motions in this civil rights action. Both parties have moved for reconsideration of the Court's Title VII ruling, and have accordingly presented the Court with different proposed forms of judgment. Plaintiff has applied for attorneys' fees under 42 U.S.C. § 1988, 42 U.S.C. § 2000e-5(k), and Cal. Gov. Code § 12965. Defendants have moved for a stay of the Court's ruling on attorneys' fees pending the Supreme Court's decision in Rivera v. City of Riverside, 763 F.2d 1580 (9th Cir.), cert. granted, 474 U.S. 917, 106 S. Ct. 244, 88 L. Ed. 2d 253 (1985), or alternatively, for further discovery.
History of the Litigation
On December 8, 1983, plaintiff filed this action against the County of Sonoma, Sheriff McDermott, Louis Nunez, Robert Sotelo, Casey Howard, Gus Zanzi (collectively the "County defendants") and Sonoma County Junior College District, Dennis Radabaugh, and Donald Cameron (collectively the "Junior College defendants"). The complaint alleged that defendants had sexually harassed and retaliated against plaintiff while she was a Deputy Sheriff of Sonoma County, creating an abusive working environment. It alleged violations of equal protection rights under 42 U.S.C. § 1983, of employment discrimination provisions of Title VII, 42 U.S.C. § 2000e-1, and of various state constitutional and statutory provisions.
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.
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.
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 ...