Kason v. Amphenol Corp.

MEMORANDUM ORDER SHADUR, District Judge. Counsel for defendant Amphenol Corporation (“Amphenol”) have just filed with the Clerk of this District Court a counterpart of the Fed.R.Civ.P. (“Rule”) 68 offer of judgment that they have contemporaneously tendered to plaintiff Edward Kason (“Kason”) through his counsel. This memorandum order is issued sua sponte (1) to cause the offer of judgment to be stricken from the court files and (2) to provide a brief explanation of why that should be done. Rule 68 is really unambiguous—its first sentence provides only for the service of offers of judgment on the adverse party, while its second sentence calls for filing of the offer only if the adverse party accepts it within ten days after such service. By strong negative inference, that latter reference to filing if and when the offer is accepted confirms the plain meaning of Rule 68’s first sentence that no filing is permitted at the time of tender. And that is the uniform view of the commentators (see, e.g., the extended discussion in 7 (Part 2) Moore’s Federal Practice ¶ 68.04, at 68-10 to 68-11 (2d ed. 1990) and the brief conclusory statement to the same effect in 12 Wright and Miller, Federal Practice and Procedure: Civil § 3002 (1973)) as well as of the few cases that have been compelled to look at the issue (see, e.g., Scheriff v. Beck, 452 F.Supp. 1254, 1259 (D.C.Colo.1978); Nabors v. Texas Co., 32 F.Supp. 91 (W.D.La.1940)). Accordingly, as stated at the outset of this memorandum order, the Clerk is directed to strike the offer of judgment from the court file (as the last-cited cases confirm to be the proper procedure). If and when the current offer or any later offer may be accepted by Kason, it will be time enough for a proper filing of the accepted offer by Amphenol.