## Facts

- Police officers responding to a domestic disturbance shot and killed Alfred Chesny’s adult son.
- Chesny sued the officers in federal court under 42 U.S.C. § 1983 and under state tort law.
- Before trial, defendants served a timely Federal Rule of Civil Procedure 68 offer of judgment for $100,000, expressly including accrued costs and attorney’s fees.
- Chesny rejected the offer and proceeded to trial.
- The jury awarded $5,000 on the state wrongful-death claim, $52,000 on the § 1983 claim, and $3,000 in punitive damages (total $60,000).
- After judgment, Chesny sought $171,692.47 in “costs,” including attorney’s fees, under 42 U.S.C. § 1988 (authorizing attorney’s fees to prevailing parties “as part of the costs”).

## Issues

1. Whether a Rule 68 offer of judgment must separately itemize damages and costs (including attorney’s fees) to be valid.
2. Whether “costs” in Rule 68 include attorney’s fees when the governing statute (here, § 1988) defines attorney’s fees as part of “costs,” thereby barring recovery of post-offer attorney’s fees when the plaintiff’s judgment is less favorable than the rejected offer.

## Decision

- The Supreme Court reversed the Seventh Circuit and reinstated the district court’s limitation on post-offer fees.
- Rule 68 does not require an offer to itemize damages and costs; a single amount that includes costs and attorney’s fees is valid.
- When the underlying statute defines attorney’s fees as part of “costs,” those fees are “costs” for Rule 68 purposes.
- Because Chesny obtained a judgment less favorable than the rejected $100,000 offer, Rule 68 barred shifting to defendants the attorney’s fees and related costs incurred after the offer.

## Legal Principles

- A Rule 68 offer of judgment may be stated as a lump sum; Rule 68 does not require separate specification of damages and costs.
- If the offeree rejects a Rule 68 offer and later obtains a judgment not more favorable than the offer, the offeree must bear post-offer “costs” within the meaning of Rule 68.
- “Costs” under Rule 68 incorporate the definition of costs supplied by the relevant substantive statute.
- Where a fee-shifting statute defines attorney’s fees as part of “costs” (as § 1988 does), post-offer attorney’s fees are subject to Rule 68’s cost-shifting rule.

## Conclusion

The Court held that a lump-sum Rule 68 offer expressly including costs and attorney’s fees is valid and that, in § 1983 actions governed by § 1988, attorney’s fees are “costs” for Rule 68 purposes; therefore, a plaintiff who rejects a Rule 68 offer and recovers less at trial cannot recover post-offer attorney’s fees from the defendant.


Marek v. Chesny, 473 U.S. 1 (1985)