Rebekah McCain v. DETROIT II AUTO FINANCE CENTER and BANK ONE, N.A.

*The Honorable Milton I. Shadur, United States District Judge for the
Northern District of Illinois, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0261P (6th Cir.)
File Name: 04a0261p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
REBEKAH MCCAIN,
Plaintiff-Appellant,
v.
DETROIT II AUTO FINANCE
CENTER and BANK ONE, N.A.,
Defendants-Appellees.
X
-
-
-
->
,
-
-
-
-
N
No. 03-1270
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-70855—Patrick J. Duggan, District Judge.
Argued: June 18, 2004
Decided and Filed: August 5, 2004
Before: GILMAN and ROGERS, Circuit Judges;
SHADUR, District Judge.*
2 McCain v. Detroit II Auto Finance, et al. No. 03-1270
1Although M cCain’s petition spoke of “attorney fees” (and Detroit
II and the district court followed her lead in that respect), and although the
statutes and cases are all over the lot (some using that term, others
speaking of “attorneys’ fees” and still others of “attorney’s fees”), we
employ the usage in the text, as did the Supreme Court in the Marek case
discussed hereafter. But see Stallworth v. Greater Cleveland Reg ’l
Transit Auth., 105 F.3d 25 2, 254 n.1 (6th Cir. 1997).
_________________
COUNSEL
ARGUED: Ian B. Lyngklip, LYNGKLIP & TAUB,
Southfield, Michigan, for Appellant. Jason M. Katz, KATZ
& KATZ, Southfield, Michigan, for Appellees. ON BRIEF:
Ian B. Lyngklip, LYNGKLIP & TAUB, Southfield,
Michigan, for Appellant. Jason M. Katz, KATZ & KATZ,
Southfield, Michigan, for Appellees.
_________________
OPINION
_________________
MILTON I. SHADUR, District Judge. Rebekah McCain
(“McCain”) originally brought suit against Detroit II Auto
Finance Center (“Detroit II”) and Bank One, N.A. (“Bank
One”) in connection with events that took place when she
attempted to secure a loan to purchase a vehicle. After
Detroit II’s tender and McCain’s acceptance of a Fed. R. Civ.
P. (“Rule”) 68 offer of judgment had produced a $3,000
judgment in McCain’s favor, her counsel petitioned the
District Court for an award of costs and attorney’s fees.1 That
petition was denied in its entirety, and after the stipulated
with-prejudice dismissal of McCain’s Second Amended And
Supplemented Complaint, McCain filed an appeal against
Detroit II pursuant to 28 U.S.C. § 1291. We REVERSE the
District Court’s denial of an award of costs and AFFIRM its
denial of an attorney’s fee award.

-- 1 of 4 --

No. 03-1270 McCain v. Detroit II Auto Finance, et al. 3
BACKGROUND
McCain sought legal redress after having experienced
numerous difficulties with Detroit II and Bank One in the
course of her purchase and financing of a new automobile.
McCain filed a multi-count Amended Complaint, seeking to
invoke against Detroit II the federal Truth in Lending Act (15
U.S.C. § 1640)(Count I) and Equal Credit Opportunity Act
(15 U.S.C. § 1691)(Count II) as well as several Michigan
statutes--the Consumer Protection Act (Mich. Comp. Laws
§ 445.901)(Count IV), Motor Vehicle Sales Finance Act
(Mich. Comp. Laws § 492.101)(Count X), Credit Reform Act
(Mich. Comp. Laws § 445.1851)(Count XI) and Motor
Vehicle Installment Sales Act (Mich. Comp. Laws
§ 566.301)(Count XII)-- and also advancing some
nonstatutory claims (Counts VI, VII, VIII and XIV). Both
Count I and the “Request for Relief” section of the Amended
Complaint contained express requests for the award of costs
and attorney’s fees, with the Request for Relief doing so as to
the bulk of McCain’s claims.
Several months into the litigation Detroit II delivered this
Rule 68 offer to McCain:
NOW COMES, the Defendant, Detroit II Auto Finance
Center, Inc., by and through its attorney, Howard Alan
Katz, and presents the following offer of judgment
pursuant to FRCP 68. The defendant, Detroit II Auto
Finance Center, Inc., offers to the Plaintiff, Rebekah
McCain, the amount of three thousand dollars ($3000.00)
as to all claims and causes of actions for this case.
McCain’s timely acceptance of the offer triggered the entry of
a $3,000 judgment in her favor.
Shortly thereafter McCain filed a Petition for Taxation of
Costs of $150 and a Petition for Attorney Fees of $7,652.50.
After the parties had briefed the issues, the district court ruled
4 McCain v. Detroit II Auto Finance, et al. No. 03-1270
2By sheer chance the writer of this opinion was the trial judge in
Marek who ruled in defendants’ favor there (547 F. Supp. 542, 547 (N.D.
Ill. 1982)), a decision that was then reversed on appeal (720 F.2d 474,
against McCain in both respects. This timely appeal ensued
after the subsequent entry of a final judgment of dismissal.
RULE 68 AND MAREK v. CHESNY
For purposes of this appeal Rule 68 is just as important for
what it does not say as for what it says (emphasis added):
At any time more than 10 days before the trial begins, a
party defending against a claim may serve upon the
adverse party an offer to allow judgment to be taken
against the defending party for the money or property or
to the effect specified in the offer, with costs then
accrued. If within 10 days after the service of the offer
the adverse party serves written notice that the offer is
accepted, either party may then file the offer and notice
of acceptance together with proof of service thereof and
thereupon the clerk shall enter judgment. An offer not
accepted shall be deemed withdrawn and evidence
thereof is not admissible except in a proceeding to
determine costs. If the judgment finally obtained by the
offeree is not more favorable than the offer, the offeree
must pay the costs incurred after the making of the offer.
Thus the Rule plainly speaks of the consequences of
acceptance or rejection of an offer on the award of costs, but
it is totally silent on the subject of attorney’s fees.
Hence the only way in which Rule 68 directly implicates
awards of attorney’s fees is in situations where such fees are
made an element of “costs”--whether by statute (42 U.S.C.
§ 1988 is the most familiar example) or as a matter of
contract. And it was in the former respect that the Supreme
Court addressed Rule 68 in the seminal decision that basically
controls this case, Marek v. Chesny, 473 U.S. 1 (1985).2

-- 2 of 4 --

No. 03-1270 McCain v. Detroit II Auto Finance, et al. 5
478-79 (7th Cir. 1983)) but was then in turn upheld by the Supreme
Court’s reversal of the Seventh Circ uit.
3Detroit II does not really contest that ruling. Its briefs on appeal do
not even broach that topic, and its counsel conceded during oral argument
that Detroit II was willing to pay M cCain her $ 150 in taxable costs.
Here is what Marek, id. at 6 (citation omitted) said on the
subject of Rule 68 offers and costs:
If an offer recites that costs are included or specifies an
amount for costs, and the plaintiff accepts the offer, the
judgment will necessarily include costs; if the offer does
not state that costs are included and an amount for costs
is not specified, the court will be obliged by the terms of
the Rule to include in its judgment an additional amount
which in its discretion, it determines to be sufficient to
cover the costs. In either case, however, the offer has
allowed judgment to be entered against the defendant
both for damages caused by the challenged conduct and
for costs. Accordingly, it is immaterial whether the offer
recites that costs are included, whether it specifies the
amount the defendant is allowing for costs, or, for that
matter, whether it refers to costs at all.
And consistently with that teaching, Detroit II’s silence on the
subject of costs in its Rule 68 offer means that true costs are
recoverable by McCain, so that the district court erred in
disallowing them.3
But because Rule 68 itself speaks only of “costs” as such
and not in terms of “attorney’s fees,” Marek, id. at 9 spoke to
the latter subject solely in terms of the former:
In other words, all costs properly awardable in an action
are to be considered within the scope of Rule 68 “costs.”
Thus, absent congressional expressions to the contrary,
where the underlying statute defines “costs” to include
6 McCain v. Detroit II Auto Finance, et al. No. 03-1270
attorney’s fees, we are satisfied such fees are to be
included as costs for purposes of Rule 68.
Nothing in the opinion speaks to any relationship between a
Rule 68 offer and the awarding of attorney’s fees that are not
categorized as “costs.”
When these things are understood, the resolution of this
case is straightforward. As already stated, because
Detroit II’s Rule 68 offer was silent as to “costs then
accrued,” the district court should have included in its
judgment the amount of those costs (agreed by the parties to
be $150). But because none of the statutes that McCain’s
Amended Complaint sought to call into play, and none of the
common law claims that McCain sought to advance, treats
potentially awardable attorney’s fees as “costs,” the Detroit II
offer--which expressly embraced “all claims and causes of
action for this case” (essentially echoing McCain’s own
terminology when she began page 1 of her multicount
Amended Complaint with “Rebekah McCain states the
following claims for relief”)--leaves no room for a post-offer
effort by McCain to collect attorney’s fees.
All of the post-Marek cases that have had to wrestle with
the type of claim that McCain advances here have addressed
Rule 68 offers from the perspective of whether or not those
offers have some greater or lesser degree of ambiguity or
perceived ambiguity (see, e.g., Goodheart Clothing Co. v.
Laura Goodman Enters., Inc., 962 F.2d 268, 272-73 (2d Cir.
1992); Nordby v. Anchor Hocking Packaging Co., 199 F.3d
390, 392 (7th Cir. 1999); Hennessy v. Daniels Law Office,
270 F.3d 551, 553-54 (8th Cir. 2001); Nusom v. Comh
Woodburn, Inc., 122 F.3d 830, 833 (9th Cir. 1997) and Utility
Automation 2000, Inc. v. Coctawhatchee Elec. Coop., Inc.,
298 F.3d 1238, 1242 (11th Cir. 2002)). But here it is
unnecessary to parse or to seek to distinguish among those
cases, for there is no ambiguity in the Detroit II offer and in
McCain’s unequivocal acceptance of that offer, an issue that

-- 3 of 4 --

No. 03-1270 McCain v. Detroit II Auto Finance, et al. 7
4Again by sheer coincidence, the writer was also the district jud ge in
Nordby, this time being affirmed by the Court of Appeals.
is to be resolved under ordinary contract principles (Mallory
v. Eyrich, 922 F.2d 1273, 1279-80 (6th Cir. 1991)).
On that score McCain can draw no comfort from Marek’s
decision as to the potential awardability of attorney’s fees
when based on such fees’ inclusion in the term “costs.”
While all four of the statutes cited in McCain’s Petition for
Attorney Fees do allow for the recovery of attorney’s fees
under specified circumstances, not one does so by
encompassing such fees within “costs” (15 U.S.C.
§ 1640(a)(3); 15 U.S.C. § 1691e(d); Mich. Comp. Laws
§ 445.911(2); Mich. Comp. Laws § 445.1861(1)(d)). To the
contrary, those statutes either list attorney’s fees and costs as
two separate elements of recovery or (in the case of the
Michigan Consumer Protection Act) do not refer to costs at
all. Nor is there any Michigan common law doctrine that
treats attorney’s fees, when they are awardable, as an element
of “costs.” Thus the situation before us parallels the one that
we dealt with in Oates v. Oates, 866 F.2d 203, 205, 208 (6th
Cir. 1989), and as in Oates no award of McCain’s attorney’s
fees may be made under the rubric of Rule 68 “costs.”
Our conclusion as to the absence of ambiguity in the
Detroit II offer, unqualifiedly accepted by McCain as it was,
echoes the Seventh Circuit’s comparable determination in
Nordby.4 There the defendant’s Rule 68 offer was for “one
total sum as to all counts of the amended complaint”
(remember that in this case the offer expressly embraced “all
claims and causes of action for this case”). There “[o]ne of
those counts specified attorneys’ fees as part of the relief
sought” (id. at 392), while here all of McCain’s claims for
relief specified attorney’s fees as part of what she was seeking
to recover. And there the Seventh Circuit held “That relief
[the request for attorney’s fees] was covered by the offer”
(id.) and therefore “agree[d] with the district judge that there
8 McCain v. Detroit II Auto Finance, et al. No. 03-1270
was no ambiguity” (id. at 393). That might well have been
written for this case, and we so hold. As in Nordby, there is
no room here for the application of the doctrine of contra
proferentem or for any other predicate for injecting ambiguity
where none exists. Just as with all other contracts, when an
unequivocal and unambiguous offer is responded to by an
acceptance that does not depart from the terms of that offer,
the prototypical enforceable bargain results.
One final note should be added. We have deliberately
eschewed offering advice to counsel generally, as McCain has
requested, as to how Rule 68 offers and acceptances should be
shaped. As we have said, such offers and their acceptance
involve nothing more than applying the basic principles of
contract law. In this instance the absence of ambiguity stems
from Detroit II’s counsel having taken McCain’s counsel at
his word: In response to a complaint that spoke expressly in
terms of “claims for relief” and that also asked expressly for
attorney’s fees to be granted as an integral part of the relief
sought for those claims, a Rule 68 offer that mirrored that
language by tendering $3,000 for “all claims and causes of
action” should have left McCain’s counsel free from doubt.
To be sure, there are other situations in which a prudent
defense counsel, who after all has total control over the
drafting of a Rule 68 offer, ought to (or sometimes must) add
a specific reference to the inclusion of attorney’s fees to
provide clarity--but this is not one of them.
CONCLUSION
Nothing in the terms of Detroit II’s Rule 68 offer justified
McCain’s effort to have the tail wag the dog by seeking an
attorney’s fees recovery of fully two and one-half times the
amount of the substantive judgment. For the reasons we have
stated, we AFFIRM the district court’s rejection of that
claim, while we REVERSE the denial of McCain’s request
for an award of $150 in true costs. Each party shall bear her
or its costs on appeal.

-- 4 of 4 --