          United States Court of Appeals
                     For the First Circuit

No. 08-1557

                          ANTONIO KING,

                      Plaintiff, Appellee,

                               v.

                   CESAR RIVAS, Individually,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]


                             Before

                     Boudin, Stahl and Lipez,

                         Circuit Judges.



     John J. Davis with whom Pierce, Davis & Perritano, LLP was on
brief for appellant.
     Michael J. Sheehan for appellee.



                        February 2, 2009
             BOUDIN, Circuit Judge.       Rule 68 of the Federal Rules of

Civil Procedure provides for cost shifting where a defendant offers

to settle, the offer is rejected and the plaintiff thereafter

prevails but recovers less than the offer.           The difficult question

in this case is how the rule should be read and applied in cases

where multiple defendants make a joint offer to settle the whole

case--a situation that the rule's drafters may not have thought

through and certainly did not explicitly resolve.

             In the underlying case, Antonio King sued seven New

Hampshire corrections officers and employees in federal district

court in New Hampshire, alleging constitutional violations while

King   was    a    pretrial    detainee   in   the   Hillsborough   House    of

Corrections.       The gist of the claims was that he had been falsely

accused of threatening a guard and was thereafter mistreated during

his confinement.       The five-count complaint charged procedural due

process      and   eighth     amendment   violations,    varying    with    the

defendant.

             According to King's later testimony, on July 14, 2002,

while the inmates were out of their cells for recreation, Cesar

Rivas, an on-duty corrections officer in a medium security wing of

the jail (Unit 2D), radioed for assistance, falsely reporting that

he was in jeopardy of being taken hostage.           Rivas identified King,

along with eight other inmates, as having threatened him.                  Three




                                      -2-
other corrections officers then took King to the jail's segregation

unit (Unit 2B), known as "the hole".

          Soon after he was taken to the hole, a disciplinary

officer charged King with disciplinary violations based on Rivas'

report.   After a hearing, which took place on July 19, King was

sentenced to thirty days in segregation beginning August 9.    After

King's thirty day sentence was complete, a classification officer

placed him in administrative segregation, which resulted in his

spending his remaining time at Hillsborough in the hole.      He was

released on December 23, 2002.

          While in the hole, King was allowed only a mattress,

sheet, pillow, and prison uniform; everything else was forbidden

(including personal hygiene products and toilet paper).    King had

to ask guards to turn on the water to flush the toilet, drink, or

wash his hands--requests not always satisfied promptly.       He was

allowed out of his cell only once every three days, shackled, in

order to shower and was subject to frequent strip searches.    These

conditions remained throughout his time in segregation.

          This description does not fully capture the grim and

unsanitary circumstances of the confinement.      A more complete

description is provided in decisions stemming from the litigation

that followed.   See, e.g., Surprenant v. Rivas, 424 F.3d 5, 10-11

(1st Cir. 2005).    Although not involving direct brutality, the

conditions were of a kind that might--or might not--lead a jury to


                                 -3-
take a harsh view of the defendants, particularly Rivas if the jury

concluded that he had falsely reported the events.

          After King filed his law suit, the defendants, jointly

represented, invoked Rule 68 and made an offer on January 24, 2005,

to settle with King for a single payment of $10,000, together with

attorney's fees and costs as determined by the court.          The rule, in

pertinent part, provides:

          At any time more than 10 days before trial
          begins, a party defending a claim may serve
          upon the adverse party an offer to allow
          judgment to be taken against him for the money
          or property or to the effect specified in the
          offer, with costs then accrued . . . . 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.

Fed. R. Civ. P. 68.1

          By its terms, the defendants' offer was one to settle the

entire law suit for a fixed sum and did not apportion the sum among

the seven defendants.     The offer expired under the rule when King

did not respond within ten days.          On January 6, 2006, King

voluntarily   dismissed   his   claims   against   four   of    the   seven

defendants.   After a five day trial involving the remaining three,

a jury found only Rivas liable and awarded King $1 in nominal

damages and $500 in punitive damages.




     1
      This was the text of the rule at the time of the offer.
Minor stylistic changes took effect on December 1, 2007.

                                  -4-
           On King's motion, the trial judge ordered a new trial on

compensatory damages; the judge agreed that because the jury had

necessarily found that Rivas had falsely accused King and led to

his wrongful punishment, the $1 nominal damage award was contrary

to the substantial weight of the evidence.          In the new trial on

damages,   the   newly     selected    jury   awarded     King   $5,000   in

compensatory damages, giving him a total award of $5,500.

           Other inmates have brought their own law suits based on

the same incident.    In Surprenant v. Rivas, No. 02-391JD, 2004 WL

1858316 (D.N.H. Aug. 17, 2004), aff'd, 424 F.3d 5, decided prior to

King's trial, a jury found that Rivas and two other defendants also

named by King had violated Jason Suprenant's constitutional rights,

awarding nominal and punitive damages against both Rivas and

another defendant, but only nominal damages against a third,

totaling   $20,503;      Surprenant    also   recovered     $29,754.50    in

attorney's fees and $3,897.72 in costs.        Id. at *5.

           In Paladin v. Rivas, No. 05-cv-079-SM, 2007 WL 2907263

(D.N.H. Sept. 28, 2007), which followed King's trial, a jury found

that two other defendants--but not Rivas--had violated inmates

Paladin and West's constitutional rights.          The jury awarded the

plaintiffs nominal damages against both liable defendants and

$50,000 each in punitive damages against one of the defendants; it

also awarded Paladin alone $50,000 in compensatory damages against

the other defendant. Id. at *1. Plaintiffs received $33,952.50 in


                                      -5-
attorney's fees and $1,247.32 in costs.          Id. at *13.      In other

cases, the inmate-plaintiffs settled before trial.

              After King's second trial on compensatory damages, he

moved as the prevailing party for attorney's fees and costs under

42   U.S.C.    §   1988   (2006).   Rivas   objected,   arguing   that   the

plaintiff's $5,500 judgment was less than the $10,000 offer, and

that Rule 68 therefore shifted costs to King; accordingly, Rivas

sought to recover his attorney's fees and costs.             The district

court held that Rule 68 did not apply because the $10,000 offer had

not been apportioned among the defendants, and it awarded King

attorney's fees and costs for his claims against Rivas under

section 1988.      King v. Rivas, No. 04-cv-356-SM, 2008 WL 822236, at

*3-9 (D.N.H. Mar. 26, 2008).

              Rivas has now appealed, arguing that the district court

misconstrued Rule 68, and our review of such a question is de novo.

See NEPSK, Inc. v. Houlton, 283 F.3d 1, 5 (1st Cir. 2002).          Rivas'

position is straightforward: the defendants' $10,000 offer to King

for a joint settlement is deemed to have been rejected; King's

ultimate recovery from all the defendants named in his suit was

only $5,500; thus, costs shift to King.

              King responds that the offer was not apportioned and

therefore did not allow him to determine how much Rivas was

offering to settle the claims against Rivas alone, so the rule is

not triggered.       But the offer was hardly "ambiguous": by its terms


                                    -6-
it was an offer to settle the whole case, and only the whole case,

for $10,000--plus costs and attorney's fees to date.              So King is

saying either that a package offer alone does not trigger the rule

or, in the alternative, must be accompanied by nominal allocations.

           Rule    68   was   written   in     the    singular--referring   to

"liability of one party to another"--and nowhere explains how a

joint offer by several defendants should be treated.              But federal

law provides, in line with common sense, that "unless the context

indicates otherwise--words importing the singular include and apply

to several persons, parties or things."              1 U.S.C. § 1 (2006); see

Johnston v. Penrod Drilling Co., 803 F.2d 867, 869-70 (5th Cir.

1986).   Compare Duke v. Conchise County, 938 P.2d 84, 90 (Ariz. Ct.

App. 1997) (finding use of singular "unambiguous" in cost rule,

rendering it inapplicable to joint offer).

           In     addition,    Rule     68's     purpose     of   encouraging

settlements2 strongly supports its adaptation to multi-defendant

cases, and courts have so assumed.          Marek v. Chesny, 473 U.S. 1, 3-

4 (1985) (joint offer by three co-defendants); Delta Air Lines,

Inc. v. August, 450 U.S. 346, 350 n.5 (1981) (assuming rule's

applicability to multi-defendant litigation). But how to apply the


     2
      Possibly this attributed purpose is over-emphasized, ignoring
Rule 68's roots in common law practice relating to the right of
tender. R. Bone, "To Encourage Settlement": Rule 68, Offers of
Judgment, and the History of the Federal Rules of Civil Procedure,
102 Nw. U.L. Rev. 1561 (2008). But the emphasis on settlement has
been absorbed in later Advisory Committee Notes and by Supreme
Court decisions, and so constrains us as well.

                                      -7-
rule to joint offers is not addressed by the rule and is ultimately

a matter of judicial adaptation of the rule in light of policy.

            Of    course,    tactically     a   plaintiff   would   prefer    an

apportioned set of offers that would allow him to pick and choose;

indeed, an offer judged ample as to one defendant could provide

resources    to    continue    the   litigation     against   others.        And

plaintiffs will often gain valuable bargaining information by

learning which defendants are most eager to settle.

            But in multi-defendant cases where a single employer is

likely to pay the bill (such as one against a company and several

of its officers), a full settlement will often be the only one that

makes sense for the company--the likely payor--and the only one

that will be forthcoming.         As the Supreme Court noted in Marek,

"[i]f defendants are not allowed to make lump-sum offers that

would, if accepted, represent their total liability, they would

understandably be reluctant to make settlement offers."              473 U.S.

at 6-7.

            Often, where there is one harm or a related set of harms,

a plaintiff too will be primarily concerned with what the case as

a whole "is worth."         In any event, each defendant is entitled to

say that he will not settle unless the plaintiff settles with all.

And how the individual defendants contribute to the settlement fund

(in practice, the institution may well pay for everyone directly or




                                      -8-
by indemnification) ought ordinarily not be plaintiff's concern in

deciding whether or not to settle.

           The circuit courts have been divided about variations on

the central problem.      The Seventh Circuit has insisted that to

trigger Rule 68 in multi-defendant cases an offer must contain

amounts allocated to each defendant, Harbor Motor Co., Inc. v.

Arnell Chevrolet-Geo, Inc., 265 F.3d 638, 648-49 (7th Cir. 2001);

but it did so citing a prior case, Gavoni v. Dobbs House, Inc., 164

F.3d 1071 (7th Cir. 1999), involving joint plaintiffs, who present

quite different problems;3 and the result in Harbor Motor was more

than justified on a different ground, namely, that the verdict in

favor of the co-defendant was being reversed, Harbor Motor, 265

F.3d at 644-45, so the plaintiff's total package could in the end

well exceed the package offer.

           Similarly, the Fifth Circuit also said the failure to

allocate was fatal; but it did so on facts where it was otherwise

plainly right to refuse to shift costs because the judgment against

the defendant exceeded the offer--when combined with a settlement

received   from   the   other.   Johnston,   803   F.2d   at   870.   The


     3
      Package offers to multiple plaintiffs are not by a group (who
first must agree to make the offer and how to fund it) but to a
group--a group in which division of the package among them is an
issue that they may not be able to resolve and where, in addition,
one plaintiff might be willing to accept the offer but another not.
The case law on these issues is inconclusive.         See Amati v.
Woodstock, 176 F.3d 952, 957-59 (7th Cir.) (Posner, J.), cert.
denied, 528 U.S. 985 (1999); Lang v. Gates, 36 F.3d 73, 75 (9th
Cir.), cert. denied, 513 U.S. 1017 (1994).

                                  -9-
apportionment notion was invoked to reach a correct result but one

properly reached by saying that the joint offer was less than the

total amount actually recovered by the plaintiff.

           The Third Circuit, by contrast, approved use of Rule 68

cost shifting where an unapportioned offer had been made that

exceeded the amount recovered; it said that the suit against

multiple defendants involved joint liability and an indemnification

contract, although it is not clear how much this mattered to the

court nor why it should matter.     Le v. Univ. of Pa., 321 F.3d 403,

408 (3d Cir. 2003).       And district courts have employed Rule 68

without difficulty in multiple defendant cases where the offer was

not   apportioned   and   the   total    recovery   was   less   than   the

unapportioned offer.4

           Assuming that defendants are entitled to trigger Rule 68

by a package offer, an allocation requirement makes no sense.           Any

such allocation is nominal since it does not represent an actual

offer by an individual defendant that can be accepted by the

plaintiff independently of the package. Still less is there reason

to believe that, if the package offer is accepted, individual

defendants will bear their apportioned shares, all of which may

well be paid by the employer or otherwise divided.


      4
      Jolly v. Coughlin, No. 92 CIV. 9026 (JGK), 1999 WL 20895, at
*5-6 (S.D.N.Y. Jan. 19, 1999); Stewart v. Sonoma County, 634 F.
Supp. 773, 775-76 (N.D. Cal. 1986). But see Doe v. Keala, 361 F.
Supp. 2d 1171, 1178-80 (D. Haw. 2005); Jones v. Fleetwood Motor
Homes, 127 F. Supp. 2d 958, 970-71 (N.D. Ill. 2000).

                                  -10-
           Nor is such a nominal allocation necessary to a package

offer.    If a trial results in a judgment encompassing all of the

defendants, apportionment is beside the point: it is easy to see

whether the total recovery exceeded the package offer.            And, where

some defendants settle or are dropped, as in this case, it is still

easy enough to ask whether plaintiff's total recovery exceeded the

total offer, treating a settlement as a recovery and a dismissed or

prevailing defendant as a zero recovery.5

              Requiring a nominal allocation in what is solely a

package offer confuses form with substance: separate offers require

allocation because they can be separately accepted; but with a

package offer there is no allocation because there are no separate

offers.      By its language Rule 68 does not suggest a nominal

allocation requirement, and it is almost impossible to see how such

an allocation would be made where, as here and in many cases,

potential liabilities of claims and defendants have some overlap.

           Nor is it clear that such a nominal allocation would

serve plaintiffs' interests.      Imagine a case where the package of

recoveries    exceeds   the   package   offer   but   some   of   the   awards



     5
      In some situations there will be no way to determine
comparability--for example, if a claim against one defendant has
yet to be tried. Cf. Harbor Motor, 265 F.3d at 644-45. But see
Stewart, 634 F. Supp. at 775-76. But in those cases defendants
simply will not recover costs, as it is the defendant's burden to
establish comparability.    See, e.g., Reiter v. MTA N.Y. City
Transit Auth., 457 F.3d 224, 231 (2d Cir. 2006), cert. denied, 549
U.S. 1211 (2007).

                                   -11-
exceeded the nominal allocation (assuming one had been required)

and some were below.   In that case, the plaintiff might well prefer

comparison of the total amount of the joint offer to the aggregate

recovery, as opposed to comparing the nominal allocations to

separate recoveries and shifting costs as to some, but not all, of

the defendants.

          So we agree with the outcomes in the Seventh and Fifth

Circuit decisions (Harbor Motor and Johnston) because comparability

was impossible in the first case and favored the plaintiff in the

second, but not the putative rationales adopted by those courts,

and we align ourselves with the Third Circuit, save that we do not

see why it matters whether liability was joint or several or how

the defendants were related: a package offer is simply to be taken

on its own terms and compared with the total recovery package.

          At least two district courts have followed this approach,

seemingly without difficulty.    See note 4, above.    And, perhaps

more important, many states have counterparts to Rule 68 and,

although there is some variance in wording of their rules, most

treat apportionment as unnecessary to package offers by multiple

defendants to a single plaintiff.      Kidwell, Application of State

Offer of Judgment Rule--Apportionment Issues in Multiple Party




                                -12-
Setting, 125 A.L.R. 5th 193, 246-56 (2005) (collecting cases from

twenty-seven states).6

            Although     this   reading      of     Rule   68     seems   to     us

straightforward,   the     outcome   in     this    particular     case   is   not

entirely welcome. Unlike many state counterparts, Rule 68 operates

only in favor of defendants; courts ordinarily award costs to the

prevailing party, 28 U.S.C. § 1920 (2006); Fed. R. Civ. P. 54(d),

but Rule 68 makes them mandatory in favor of defendants where the

recovery failed to exceed the offer.             But traditional costs under

section    1920--e.g.,    transcript      fees     and   the    like--have     been

relatively modest, which explains why Rule 68 was for some time

almost ignored.

            However, the Rule 68 stakes were raised when in Marek, a

sharply divided Supreme Court held--seemingly at odds with common

law practice--that "costs" under Rule 68 included attorney's fees,

where (as here under section 1988) the underlying statute permits

them as part of costs allowed to a prevailing party.                473 U.S. at

7-11.     Further, where attorney's fees are allowed, the statutes

sometimes include attorney's fees "as costs" and other times allow

costs "and" attorney's fees, avoiding Marek; but Marek is the law

and we are bound by it.


     6
      It appears that only two states have gone the other way, id.
at 256-60, and in one instance where a court held otherwise the
substantive rule was simply revised to make apportionment
unnecessary. Id. at 257-58; Chavez v. Sievers, 43 P.3d 1022, 1027-
28 (Nev. 2002).

                                     -13-
            In this circuit, Marek's consequences have been limited

because this court, like several other circuits, holds that it does

not permit an award of attorney's fees to a defendant under Rule

68;7 but Marek can (and in this case, does) cut off post-offer

attorneys fees for the plaintiff where recovery does not exceed the

offer.     Such fees are likely to greatly dwarf what are normally

called costs and, of course, their denial affects the incentives to

bring suits on behalf of indigent plaintiffs.

            Denial of post-offer attorney's fees under Marek seems

fair enough where the plaintiff was unreasonable in rejecting an

adequate    defense   offer--whether    proffered    by   an   individual

defendant or in package form from several.          But an offer may be

reasonably rejected and then the jury prove much stingier than

might be expected; that was perhaps the case here and, if so, the

outcome may seem unfair.    Compare Surprenant, 2004 WL 1858316, at

*5; Paladin, 2007 WL 2907263, at *1, 13.

            Such outcomes could be avoided if courts could read into

Rule 68 a discretionary power of the judge not to allow costs where

the result would be unfair.      But Rule 68 uses the term "must,"


     7
      Crossman v. Marcoccio, 806 F.2d 329, 334 (1st Cir. 1986),
cert. denied, 481 U.S. 1029 (1987). Other circuits--including the
Third, Fifth, Seventh, Eighth and Ninth--have also limited fee
shifting in this fashion. See, e.g., Harbor Motor, 265 F.3d at
646-47. But see Jordan v. Time, Inc., 111 F.3d 102, 105 (11th Cir.
1997). Rivas has not seriously argued to us that he is entitled to
post-offer attorney's fees, and Crossman clearly states that "Rule
68 can never require prevailing civil rights plaintiffs to pay
defendants' post-offer attorney's fees." 806 F.2d at 334.

                                 -14-
Delta emphasized the rule's language, 450 U.S. at 351-52, and

efforts to modify Rule 68 in various ways have given rise to bitter

controversy.    Nor has plaintiff suggested that the district court

had any such discretion.

            But the problem results from the interaction of Rule 68's

seemingly mandatory phrasing and the Marek decision, and it is

wholly   independent of whether package offers require allocation.

Circumstances shape rules; but in the end the rules must be sound,

and there is no reason to think that package offers are any more

likely to produce doubtful outcomes than do ordinary single-

defendant   offers.       Reform    of   Rule   68   itself   is   beyond   our

competence.

            The order denying relief under Rule 68 is vacated and the

matter   remanded   for   further    proceedings     consistent     with    this

decision.     On remand, Rivas is entitled under Rule 68 to costs

incurred after the Rule 68 offer but no attorney's fees.             King, as

the prevailing plaintiff, is presumptively entitled to attorney's

fees and costs accrued prior to the Rule 68 offer.                 Each party

shall bear their own costs on appeal.

            It is so ordered.




                                     -15-
