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4th Cir: Attorneys Fees Need Not Be Specified in Rule 68 Offers

By Tanya Roth, Esq. on June 15, 2011 | Last updated on March 21, 2019

While the case of Bosley v. Mineral County Commission presents a series of unfortunate events, the actual case before the Fourth Circuit Court of Appeals is not nearly as dramatic.

The Fourth Circuit Court of Appeals affirmed a lower court ruling that the settlement offer in a case involving several state law and federal constitution claims did not include the attorneys fees and costs.

Quick Facts:

In 2005, the Appellee, Brenda Bosley, filed a mental hygiene complaint against her husband, Dr. James Bosley, claiming that he was suicidal and a danger to others. The Chief Deputy and a Virginia State Trooper came to the Bosley home and tried to take Dr. Bosley into custody to undergo psychiatric exams. Dr. Bosley somehow wiggled free and ran into a room, shooting himself with a gun, killing himself.

Mrs. Bosley then filed a state court action against the Trooper and the Chief Deputy, among others. Eventually, Appellants served an offer of judgment, which was accepted by the Appellee. The offer did not mention costs or attorney's fees.

Eventually, the district court awarded Mrs. Bosley $66,463.80 in attorneys fees and costs. This was subsequently appealed.


Here, it's important to note that the case provides for statutory attorney's fees. Now, the issue here is that the Settlement offer made under the Federal Rules of Civil Procedure was silent as to attorneys fees and costs. Writes the Fourth Circuit Court of Appeals, "Appellants could have easily drafted a Rule 68 offer either reciting that recoverable costs were included in the sum or specifying an amount for such costs."

The court goes on to cite the appellants' failure to specify such amount and its effect on the outcome, stating that in such event, but they failed to do so, and that had negative repercussions for them.

"When a Rule 68 offer of judgment is silent as to costs, a court faced with such an offer that has been timely accepted is obliged by the terms of the rule to include in its judgment an amount above the sum stated in the offer to cover the offeree's costs."

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