United States District Court, W.D. Louisiana, Monroe Division
DUFFY GUILLORY, JR.
STARR INDEMNITY & LIABILITY COMPANY, ET AL.
L. HAYES Judge
A. DOUGHTY UNITED STATES DISTRICT JUDGE.
a diversity case involving a motor vehicle accident. The
parties hotly contest liability. Pending before the Court is
a Motion for Security for Costs [Doc. No. 34] filed by
Defendants Starr Indemnity & Liability Company, Gulf
Relay, LLC, and Adam D. Reed, Jr. (“Reed). Defendants
move the Court pursuant to Local Rule 54.6 for an order
requiring Plaintiff Duffy Guillory, Jr.,
(“Guillory”) to furnish security in the amount of
$50, 000.00 for costs because Guillory will be
“obligated to pay all or a portion of Defendants'
costs” should Defendants obtain “a defense
verdict or . . . Plaintiff's award . . . fall[s] within
the parameters of Rule 68.” [Doc. No. 34-1, p. 3].
Guillory opposes this motion, contending that Defendants have
not demonstrated that there is a substantial likelihood that
a jury could impose 100% fault on him, that Reed is presumed
at fault, and Defendants seek to recover costs unavailable
under federal law. [Doc. No. 37].
this is a diversity case, the Court applies Louisiana
substantive law, but federal procedural law, including the
Federal Rules of Civil Procedure and Local Rules.
move the Court to order Guillory to pay a bond under Local
Rule 54.6, which provides:
In any civil matter, the court, on motion or its own
initiative, may order any party to file bond for costs or
additional security for costs in such an amount and so
conditioned as it may designate.
no costs have been ordered in this case. Instead, Defendants
move the Court to order Guillory to file a bond because they
“anticipate” a verdict in their favor, and they
are concerned that Guillory may not be able to pay their
costs after trial.
made an Offer of Judgment to Guillory on April 18, 2019,
which was rejected. Pursuant to Federal Rule of Civil
Procedure 68(d), “[i]f the judgment that the offeree
[Guillory] finally obtains is not more favorable than the
unaccepted offer, the offeree [Guillory] must pay the costs
incurred [by Defendants] after the offer was made.” If
Defendants obtain a complete defense verdict, Rule 68 simply
does not apply. See Delta Air Lines, Inc. v. August,
450 U.S. 346, 351-52 (1981) (It is “clear that [Rule
68] applies only to offers made by the defendant and only to
judgments obtained by the plaintiff. It therefore is simply
inapplicable to this case [when] it was the defendant that
obtained the judgment.”); see also Louisiana Power
& Light Co. v. Kellstrom, 19');">50 F.3d 319, 333 (5th Cir.
1995) (“Rule 68 requires a prevailing plaintiff to pay
the costs of litigation ‘in the single circumstance
where the plaintiff does not accept the defendant's offer
of judgment which is more favorable than the judgment the
plaintiff ultimately obtains.' Johnston v. Penrod
Drilling Co., 803 F.2d 867, 869 (5th Cir.1986).
Consequently, when a plaintiff rejects a Rule 68 offer of
judgment, ‘he will lose some of the benefits of victory
if his recovery is less than the offer.' Delta,
450 U.S. at 352 . . . If a plaintiff takes nothing, however,
Rule 68 does not apply.”). Rule 68 applies only if
Guillory obtains a verdict in his favor, but one which is not
more favorable than the Offer of Judgment.
if Guillory obtains a favorable verdict for less than the
Offer of Judgment, Defendants cannot obtain costs without
limit. Indeed, costs in the amount of $50, 000.00 would be
unheard of in this Court. Rule 68 does not define costs, but
the Court's discretion is limited by 28 U.S.C. §
1920 to awarding the identified fees, as further expounded
upon by the case law:
1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained
for use in the ...