     Case: 10-20024     Document: 00511250993          Page: 1    Date Filed: 10/01/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                                  Fifth Circuit

                                                                               FILED
                                                                             October 1, 2010
                                     No. 10-20024
                                   Summary Calendar                           Lyle W. Cayce
                                                                                   Clerk


VIRGINIA KINNEY,

                                                   Plaintiff-Appellant
v.

AKER KVAERNER INC.;
AKER KVAERNER STRATEGIC OPERATIONS, INC.

                                                   Defendants-Appellees




                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 4:08-CV-860


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
        Virginia Kinney refused a Rule 68 offer of judgment ($17,000) from her
former employer whom she had sued on several grounds. She received a partial
judgment for over $5,600 for an FLSA violation (and attorneys fees), then went
to a bench trial on claims for discrimination and contract breach and lost. The
court entered final judgment on the merits and subsequently denied her Rule 59

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 10-20024    Document: 00511250993     Page: 2    Date Filed: 10/01/2010

                                  No. 10-20024

motions and granted appellees’ motion pursuant to Federal Rules of Civil
Procedure 68, to assess nearly $6,000 in court costs against Kinney.
      Kinney timely appealed the Rule 68 order but also vigorously contests the
trial court’s failure to grant her a jury trial. We find no error and affirm.
      1. To the extent Kinney now argues that the Rule 68 order was erroneous,
she is plainly wrong. The rule is not discretionary: Once a plaintiff has been
offered a judgment, refused it, and receives a lower or no award at trial, “the
offeree must pay the costs incurred after the offer was made.”
      2. Kinney did not file a notice of appeal of the final judgment within thirty
days as required by Federal Rules of Appellate Procedure 4(a)(1)(A). But even
if her pro se appeal were timely, she waived any objection to a jury trial because
she raised no complaint about the court’s seasonable bench trial notice either in
her subsequent pleadings or before or during the bench trial. See McDonald v.
Stewart, 132 F.3d 225, 229 (5th Cir. 1998).
                                                                    AFFIRMED.




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