Giambalvo v. Tempe, City of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Gabriela Giambalvo,
Plaintiff,
v.
City of Tempe, et al.,
Defendants.
No. CV-22-01856-PHX-SMB
ORDER
The Court now considers Plaintiff’s Motion for Attorneys’ Fees (Doc. 96). The
Motion is fully briefed. The Court denies the Motion for the following reasons.
I. BACKGROUND
Plaintiff accepted Defendant City of Tempe’s offer of judgment (the “Offer”)
pursuant to Rule 68 of Federal Rules of Civil Procedure. (Doc. 93). The Offer, in relevant
part, provided: “[The City] hereby offers to allow judgment to be taken against it in the
amount of $30,000.00 in full resolution of any and all claims by Plaintiff, including fees
and costs.” (Doc. 93-1 at 2.) Plaintiff’s acceptance stated that they “intend[] to move for
an award of statutory attorney’s fees and costs” because “[a]lthough the Offer references
‘fees and costs,’ it does not clearly and unambiguously state that attorneys’ fees and costs
are included within the $30,000.00 judgment amount.” (Doc. 93 at 2.) Plaintiff thus filed
the present Motion.
II. LEGAL STANDARD
“The Ninth Circuit has stated that a Rule 68 offer of judgment ‘must be clear and
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unambiguous’ in waiving or limiting attorneys’ fees (and costs).” Medina v. Gilbert Mega
Furniture, LLC, No. CV-16-04033-PHX-SPL, 2019 WL 3778406, at *1 (D. Ariz. Aug. 12,
2019) (quoting Nusom v. Comh Woodburn, Inc., 122 F.3d 830, 833 (9th Cir. 1997)).
Specifically, “where the underlying statute does not make attorney fees part of costs, it is
incumbent on the defendant making a Rule 68 offer to state clearly that attorney fees are
included as part of the total sum for which judgment may be entered if the defendant wishes
to avoid exposure to attorney fees in addition to the sum offered plus costs.” Nusom, 122
F.3d at 834. Thus, “a Rule 68 offer for judgment in a specific sum together with costs,
which is silent as to attorney fees, does not preclude the plaintiff from seeking fees when
the underlying statute does not make attorney fees a part of costs.” Id. at 835. Any
“ambiguities in a Rule 68 offer are typically construed against the offeror.” Id. at 833.
III. DISCUSSION
The Court finds that the Offer precludes Plaintiff’s request for attorneys’ fees.
Again, the City offered “$30,000.00 in full resolution of any and all claims by Plaintiff,
including fees and costs.” (Doc. 93-1 at 2.) Read plainly, the Offer uses broad language
to settle all claims and any fees and costs associated with those claims. The Court is not
convinced that this broad language does not include attorneys’ fees. Indeed, Plaintiff does
not suggest that the word “fees,” as used in the Offer, does not include attorney’s fees. In
fact, the cases on which Plaintiff relies all involve offers of judgment that do not use the
word “fees.” See Nusom, 122 F.3d at 833 (construing an offer of “$15,000.00, together
with costs accrued to the date of this offer”); Medina, 2019 WL 3778406, at *1 (construing
an offer of “$1,559.98, as resolution for Plaintiff Larry Berisford's claims asserted in this
action); Erdman v. Cochise County, 926 F.2d 877, 878 (9th Cir. 1991) (construing an offer
of “($7,500.00) with costs now accrued”).
Plaintiff contends that “[t]he phrase ‘including fees and costs’ modifies the
immediately preceding noun phrase ‘any and all claims by Plaintiff’, identifying which
claims are being resolved, rather than specifying what the $30,000.00 covers.” (Doc. 96
at 3.) “The Offer never states that fees must come out of the $30,000.00, that the amount
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is ‘inclusive of’ fees, or that no separate fee recovery is permitted.” (Id.) Plaintiff goes on
to note that “[a]n offer that resolves ‘all claims including fees and costs’ describes what
claims are being settled; an offer for ‘$30,000.00 inclusive of attorneys’ fees’ describes
how the money is to be allocated.” (Id.) In Plaintiff’s view, “[t]he Offer employs the
former construction.” The Court is unpersuaded by this argument.
The Court does not otherwise understand the important Plaintiff’s syntax-based
argument. Plaintiff claims that the phrase “including fees and costs” modifies the phrase
“any and all claims by Plaintiff.” (Doc. 96 at6 3.) Under Plaintiff’s proposed reading, the
$30,000 was offered in resolution of all claims, including claims for fees and costs. Even
accepting this argument as true, the Court does not see how this would demand a different
outcome. Under Plaintiff’s proposed interpretation, the $30,000 would resolve any claim
for fees and any claim for costs. It is unclear how the offer would not work to settle a claim
for attorney’s fees, which is plainly a claim for fees.
The Court is also unpersuaded by Plaintiff’s argument that the Offer’s “disclaimer”
otherwise suggests that the $30,000 does not include attorneys’ fees. The disclaimer reads:
“This offer of judgment is made for the purposes specified in Rule 68, and is not to be
construed as an admission that the City is liable for any damages, costs or attorney’s fees,
or that Plaintiff is entitled to them.” (Doc. 93-1 at 3.) Plaintiff contends that “[i]f fees were
already included within the $30,000.00, the City would have no reason to disclaim liability
for fees it had agreed to pay.” (Doc. 96 at 4.) The Court disagrees. Plaintiff would agree
that the Offer resolves issues pertaining to damages. Still, the disclaimer applies to
damages. Accordingly, the disclaimer does little to undermine the plain language of the
Offer.
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IV. CONCLUSION
Accordingly,
IT IS ORDERED denying Plaintiff’s Motion for Attorneys’ Fees (Doc. 96).
Dated this 19th day of May, 2026.
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