01-1818 Payne v. Milwaukee County, et al.

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“If sec. 1988 did not rest explicitly on a party’s status as a ‘pre vailing’ party before fees could be recovered, we would have a different case. But it does, and this court has unequivocally held that defendants who make more generous Rule 68 offers than the winning plaintiff wins from a jury are not ‘prevailing parties.’ See Poteete v. Capital Engineering, Inc., 185 F.3d 804 (7th Cir. 1999). Indeed, as we noted earlier, if a defendant prevails, the entire question of fees and costs is assessed differently.

“Milwaukee County’s right to costs, as opposed to fees, does not depend upon sec. 1988, and thus the costs question must be analyzed separately. Rule 54(d) of the Federal Rules of Civil Procedure sets forth the general rule that costs other than attorneys’ fees ‘shall be allowed as of course to the prevailing party,’ except as otherwise provided by statute or in the rules. Rule 68 does provide otherwise, by explicitly calling for the plaintiff to bear the defendant’s costs if the final judgment is less favorable than the offer. The district court’s final order in this case did not distinguish between Milwaukee County’s post-offer attorneys’ fees and its post-offer costs. A remand will therefore be necessary to sort out those two elements; Milwaukee County is entitled only to the post-offer costs.”

Affirmed in part, Reversed in part, and Remanded.

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Diane P. Wood, J.