Felders v Bairett

Bairett appealed the striking of his rule of Civil Procedure 68 offer to settle. The panel, 2-1, affirmed. The majority held that case was properly before the court as the motion to set the amount of attorney fees did not change the finality of the post-judgment order here and Bairett’s early notice of appeal ripened with the entry of final judgment. It held Bairett’s motion was ineffective as he made it before being added a party and rule 68 only applies to motions made by a party defending a claim and this can occur after service of process or waiver thereof and the procedure of allowing judgment to be entered by the court clerk upon filing the acceptance of a Rule 68 offer compels the same conclusion. Tymkovich dissented arguing the majority reading of Rule 68 goes against how the term “party” is used in Rule 12 involving motions to dismiss and throughout the rules of Civil Procedure and while bright line rule is appropriate here, filing of the complaint is a better bright line as it serves the purpose without the conflict created by the majority’s ruling.