Rule 68.Offer of Judgment

(1973)

With one slight exception Rule 68 is the same as Federal Rule 68. The addition incorporates the provision of G.L. c. 231, § 75 excluding interest from a judgment in determining whether it is more favorable than the offer. It does not, however, prevent the plaintiff's obtaining interest on the judgment from the date of the offer if the judgment obtained is not more favorable than the offer. Merely because interest is excluded in determining whether the judgment is more favorable than the offer, it does not logically follow that the plaintiff should be deprived of interest when the judgment is not more favorable than the offer. G.L. c. 231, § 75 did not deprive the plaintiff of interest from the date of the offer. Because the defendant has the use of the money even from the date of the offer there is no reason why he should not pay interest to the plaintiff for the use of that money; to provide otherwise, would be tantamount to assessing a penalty against the plaintiff for not accepting an offer.

Rule 68 slightly changes preexisting Massachusetts practice. The offer of judgment is no longer limited to those suits “wherein damages only are sought to be recovered.” G.L. c. 231, § 74. The requirement that the offer be made at least 10 days before the trial begins is new to Massachusetts practice, which did not specify a time for the offer; the time for acceptance of an offer was limited to 10 days. G.L. c. 231, § 74 permitted such further time as the court allowed.

Rule 68 clearly identifies the party entitled to make an offer of judgment. The federal rule permits any “party defending against a claim” to make such offer. This phrase has been interpreted as covering by its express terms either an original defendant or a plaintiff defending against a counterclaim. The term defending party “does not confine itself to a defendant in the technical sense.” Moore, Federal Practice, § 68.02, p. 2303. Rules 8(a) and 13(a) make clear that the word “claim” would refer also to a counterclaim. The Massachusetts statute (G.L. c. 231, § 74), permitted any “defendant in an action . . .” to make an offer of judgment. No reported case has defined the term “defendant”. Presumably the word as used in G.L. c. 231, § 74 included plaintiffs defending against a counterclaim. Rule 68 clarifies this matter.

Rule 68 requires the defending party to serve upon the adverse party his offer of judgment. The court enters the picture only after acceptance. At that time either party may file “the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment.”

Rule 68 specifies that the mere fact of an offer's nonacceptance does not preclude a subsequent offer. Massachusetts law had previously been silent on this point.