Is there a federal equivalent to the CCP 998 Offer in Compromise?

Sort of. There is a similar mechanism under Rule 68 of the Federal Rules of Civil Procedure, called a statutory offer of judgment, but unlike California law only defendants can utilize it. If a plaintiff turns down defendant’s Rule 68 offer and obtains judgment for less than the offer, plaintiff must pay “the costs incurred after the offer was made,” which includes any attorneys’ fees recoverable by statute as part of “costs”. (FRCP 68(d).)

Unless Waived, An FRCP Rule 68 Offer Includes An Agreement to Pay the Plaintiff’s Costs!

In contrast to California law, a federal Rule 68 offer is not effective unless the defendant(s) includes a clear agreement to pay all Plaintiff’s costs incurred to the date of the offer. (Cruz v. Pacific American Ins. Co. (9th Cir. 1964) 337 F.2d 746, 750.) However, there is also authority suggesting that even if the Rule 68 offer omits to mention costs, then the Court will award accrued costs as long as the offer does not explicitly or implicitly provide that the judgment does not include costs. (Marek v. Chesny (1985) 473 US 1, 6, 105 S.Ct. at 3015; Le v. University of Pa. (3rd Cir. 2003) 321 F.3d 403, 409.) Importantly, if pre-offer attorneys’ fees are recoverable as “costs,” then a Rule 68 offer to pay all costs incurred to date necessarily includes those attorneys’ fees.

A Rule 68 offer can, however, be conditioned on plaintiff’s waiving statutory attorneys’ fees that would otherwise be recoverable as “costs.” Any waiver of attorneys’ fees must be explicit to be effective. For example, Plaintiff’s acceptance of a lump sum offer in “total settlement of all claims” (with no mention of costs) does not affect the right to recover accrued costs in addition to the “total” amount.

FRCP 68 requires that an offer of judgment be “served” on opposing parties, so that only a written offer satisfies Rule 68. The terms of a Rule 68 offer may also include non-monetary relief, such as injunctions, rescission or reformation of contract. An offer may be made at any time up to fourteen (14) days before the trial date. To be effective, an acceptance must be made in writing within fourteen (14) days of service (presumably extended by 3 days for mail under FRCP 6(d)). Once accepted, the offer and acceptance should be filed with the Court so that judgment may be entered.

What exactly is the “discovery cutoff date”?

Magistrate Judges in federal court usually issue the scheduling orders, which inform the litigants of discovery deadlines, pretrial motion deadlines, settlement conference date, pretrial conference date, and trial date. Some scheduling orders are more detailed than others. Nearly all of them have a “discovery cutoff date”. It may be a non-expert discovery cut-off date, or an expert discovery cut-off date. Still, it causes confusion. Some people wonder if it’s the last date by which you can get discovery requests out the door. Others think it’s also the last date for filing discovery-related motions.

To make sure you don’t miss any deadlines, you should always check the Local Rules and the Judge’s standing orders, if any. If the Court’s orders seem vague at all, you should confirm the deadlines with a clerk. Northern District of California Local Rule 37-3, for example, defines discovery cutoff date as “the date by which all responses to written discovery are due and by which all depositions must be concluded.”

The nearly uniform meaning of discovery cutoff date in federal court scheduling orders refers to the last date by which depositions must be completed and the last date by which responses to all previously served discovery requests must be served. The discovery cut-off date is not the last date on which discovery motions can be filed. While some scheduling orders will designate a separate discovery motion filing date, most of them simply designate a pretrial motion cutoff date.

Check the Local Rules frequently, as they are updated throughout the year.

You have a lot less time to respond to summary judgment motions in federal court than in California state court.

Lawyers accustomed to practicing in Superior Court get a generous amount of time to prepare oppositions to summary judgment or adjudication motions. They’re in for a surprise in federal court.

In California state court, a motion for summary judgment or adjudication and all supporting papers must be filed at least 75 calendar days before the date of the hearing on the motion. (CCP 437c(a).) An opposition to a motion for summary judgment must be filed and served at least 14 days (calendar days, not court days) before the hearing. Thus, the party opposing a motion for summary judgment in state court usually has at least two months to prepare. Of course, those two months are often spent conducting written discovery and depositions to use in the opposition. Still, two months is pretty generous.

Not so in federal practice. The Federal Rules generally require that any motion, including a motion for summary judgment, must be served at least 14 days before the time set for hearing. (FRCP 6(c)(1).) However, most federal courts have local rules requiring longer notice.

In the Central District of California, a summary judgment motion must be served at least 28 days before the hearing if served personally and 31 days if served by mail. (CD CA L.R. 6–1.) In the Eastern District of California and Southern District of California, a summary judgment motion must be filed at least 28 calendar days before the hearing. (ED CA L.R. 230(b); SD CA L.R. 7.1(e).) The Northern District of California requires at least 35 days after service of a summary judgment motion. (ND CA L.R. 7–2(a).)

This is often the same amount of notice as litigants must give for much less important and complex motions. With only about a month between the filing and service of the MSJ and the hearing, opposing parties have much less time to respond. For example, in the Eastern District, an opposition has to be filed and served at least 14 days before the hearing. (ED CA L.R. 230(c).)

So in federal court, you could have as few as two weeks to prepare an opposition to an MSJ or MSA.  Of course, you would get more time if the moving party set the hearing date out more than the required minimum 28 days or if the court’s calendar requires hearings set further out. The practice tip for federal court, then, is that you should really get your discovery done as soon as possible because you don’t want to be caught off guard when the opposing party files a summary judgment motion and you haven’t even taken a deposition yet.

Disclaimer: Local Rules are modified regularly.

New 7-HOUR Limit for California Depositions

On January 1, 2013, Assembly Bill 1875 became effective. It adds Code of Civil Procedure § 2025.290, which limits depositions of any person in California state court proceedings to seven hours. Parties can, of course, stipulate or move the Court to take longer depositions. There are also several major exceptions: depositions of experts under CCP §§ 2034.210 – 2034.310; cases designated as complex; cases brought by employees or job applicants against employers for acts or omissions arising out of or relating to the employment relationship; and depositions of persons most qualified. In addition, any party who has appeared in the action after the deposition has concluded may notice another deposition subject to the 7-hour limit. The new law will make deposition-taking in California similar to federal practice under Rule 30 of the Federal Rules of Civil Procedure (FRCP).

Go to AB 1875

Beware of short deadlines in bankruptcy court appeals

A party seeking to appeal a bankruptcy court decision only has ten (10) days to file a Notice of Appeal. The Notice of Appeal must be filed with the clerk of the bankruptcy court, not with the Bankruptcy Appellate Panel (“BAP”) or District Court. (Fed. R. Bankr. P. 8001.) Contrast this with the amount of time a litigant would have to file a Notice of Appeal in a non-bankruptcy federal case: thirty (30) days under the Federal Rules of Appeal or F.R.A.P. However, where a litigant can show excusable neglect in missing the 10-day deadline to file its Notice of Appeal, the time can be extended by court order up to 20 additional days.

Furthermore, within ten (10) days of filing the Notice of Appeal, the appellant must file both a Designation of the Record on Appeal and a Statement of Issues. An appeal may be dismissed under Bankruptcy Rule 8001(a) if the Appellant fails to take the required steps other than filing a Notice of Appeal. Once the appeal is “docketed” in the appropriate appellate court (whether to the BAP in Circuits with BAPs or to the local District Court), the litigants again face short briefing deadlines. Appellant’s opening brief is due within fifteen (15) days of the appeal being docketed. (Fed. R. Bankr. P. 8009.) Respondent’s brief is due within fifteen (15) days of service of the opening brief. Appellant’s Reply brief is due within ten (10) days of service of the Respondent’s brief. Thus, from bankruptcy court decision to completion of appellate briefing, the whole process could take less than two months.

One of the reasons for short deadlines in bankruptcy appeals is the greater chance of appellate relief becoming moot (e.g. if a plan is approved while an appeal is pending).


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