Legros v. Jewel

Full title: Marie Legros and Wilner Legros, Plaintiffs, v. Dena Jewell, Defendant and…

Court: Superior Court of Delaware, Kent County

Date published: Mar 30, 2001

C.A. No. 98C-02-033 (Del. Super. Ct. Mar. 30, 2001)

Opinion

C.A. No. 98C-02-033

Submitted: December 28, 2000

Decided: March 30, 2001

Upon Consideration of Plaintiff's Motion for Costs DENIED.

Edward C. Gill, Esq., Attorney for Plaintiffs.

Thomas P. Leff, Esq., Attorney for Defendants.

VAUGHN, Resident Judge

ORDER

Upon consideration of the defendant's motion for costs and the record of this case, it appears that:

1. In this personal injury case the jury returned a verdict for the defendant. More than 10 days prior to trial, the defendant made an offer of judgment under Rule 68 in the amount of $2,000. The defendant now moves under Rules 54(d) and 68 for assessment of $7,989.01 costs, all of which appear to have been incurred after the making of the offer of judgment.

2. It appeared to me at the trial that the plaintiffs are people of very modest means. My recollection is that Ms. Legros testified that she worked at a Perdue chicken factory. In Delta Air Lines, Inc. v. August ¹ the United States Supreme Court held that federal Rule 68, does not apply where there is a defense verdict, as such a case is not one where there is a "judgment finally obtained by the offeree . . . not more favorable than the offer."² The Supreme Court's rationale is fully explained in its opinion. I adopt the analysis and decision of the Supreme Court in Delta. Therefore costs will not be allowed under Rule 68.

1 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1980). See also Jones v. Berezay, Idaho Supr., 815 P.2d 1072 (1991); Ingram v. Key, Ind. App., 594 N.E.2d 477 (1992).

2 Federal Civil Rule 68. Our Superior Court rule is identical.

2. Rule 54(d) provides that costs will be allowed as of course to the prevailing party "unless the Court otherwise directs." There is no doubt that an assessment of costs against the plaintiffs in this case would be a severe financial hardship, and in all probability would simply become an uncollectible assessment serving no real purpose. Even if the plaintiffs, despite hardship, could afford to pay the costs, I do not believe it would be appropriate to burden these unsuccessful plaintiffs with these costs.

3. Therefore, the defendant's motion for costs is denied.

IT IS SO ORDERED.