United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON PENDING MOTIONS
EVANS BARKER, JUDGE
before the Court is the Motion for Interlocutory Injunction
[Dkt. 39], filed by Plaintiff Norman Peck, proceeding pro
se. Although Mr. Peck has styled his motion as one for
injunctive relief, he is more accurately seeking
reconsideration of our January 10, 2019 Order denying his
request for an entry of judgment under Federal Rule of Civil
Procedure 68. Accordingly, we treat this motion as a motion
to reconsider, and, for the reasons detailed below, we
GRANT Plaintiff's motion.
November 6, 2018, Defendant IMC Credit Services made an offer
of judgment pursuant to Rule 68 in this FDCPA case in the
amount of “$1, 101, plus costs to be awarded by the
court.” Dkt. 22 at 6. Plaintiff communicated his
acceptance of that offer by correspondence to Defendant dated
November 16, 2018. See Dkt. 22 at 17 (“I have
decided to accept your client's November 6, 2018 offer of
settlement of $1, 101. You have refused to state a good-faith
basis for not stipulating to the specifics of the offer.
Thus, the only specific detail you have furnished is
‘the amount of $1, 101.00, plus costs to be awarded by
the courts.' No other terms or conditions apply.”).
After Mr. Peck indicated his acceptance of the offer,
Defendant's attorney contacted Mr. Peck to discuss the
amount of costs Mr. Peck would be seeking, at which point it
became clear that Mr. Peck believed “costs”
encompassed all amounts set forth in his prayer for relief in
his complaint. See Dkt. 22 (email attachments).
December 12, 2018, Mr. Peck filed a Notice of Plaintiff's
Rule 68 Filing. Because, as Defendant recognized, Mr.
Peck's acceptance “appear[ed] incongruent with his
desires in this litigation, ” (Dkt. 23 at 2), in an
effort to preserve the interests of Mr. Peck, a pro
se litigant, we declined in our January 10, 2019 Order
to enter Rule 68 judgment on grounds that Mr. Peck appeared
to have a fundamental misunderstanding of Defendant's
offer that he had accepted. See Radecki v. Amoco Oil
Co., 858 F.2d 397, 402-03 (8th Cir. 1988)
(“[E]specially when considering a Rule 68 offer, the
offeree needs to have a clear understanding of the terms of
the offer in order to make an informed decision whether to
accept it.”). In our Order, we explained that Rule 68
“costs” are limited to those contemplated by Rule
54(d), which are itemized in 28 U.S.C. §
1920. See Franklin v. Mentz, No.
3:13-CV-207-TLS, 2016 WL 7111993, at *4 (N.D. Ind. Dec. 7,
2016) (“Because the ‘costs included in Rule 68
are no more extensive than the costs authorized under Rule
54(d),' a  party is only entitled to recover those
costs listed in 28 U.S.C. § 1920.”) (quoting
Thomas v. Caudill, 150 F.R.D. 147, 149 (N.D. Ind.
1993)); Freeland v. Arvin-Meritor, Inc., No.
06-4032-GPM, 2009 WL 586431, at *4 (S.D. Ill. Mar. 6, 2009)
(“Rule 68 costs are defined by 28 U.S.C. § 1920
unless the substantive law which governs a particular case
authorizes the award of additional costs.”) (citing
Phillips v. Bartoo, 161 F.R.D. 352, 354 (N.D. Ill.
1995)); see also Grubbs v. Andrews & Cox, P.C.,
No. 1:13-cv-1936-WTL-MJD, 2016 WL 3902591, at *4 (S.D. Ind.
July 18, 2016) (awarding costs under Rule 54(d) and §
1920 in FDCPA case).
brief in support of the instant motion to reconsider, Mr.
Peck steadfastly maintains that his acceptance of
Defendant's offer was valid and that the Court was
therefore without discretion to decline to enter judgment
under Rule 68. The only issue therefore is whether Mr.
Peck's acceptance was effective, as such, because, if so,
then Rule 68 requires that the court simply enter judgment,
as Mr. Peck contends. “Rule 68 operates automatically,
requiring that the clerk ‘shall enter judgment'
upon the filing of an offer, notice of acceptance and proof
of service. This language removes discretion from the clerk
or the trial court as to whether to enter judgment upon the
filing of the accepted offer. … Because of this
mandatory directive, the district court has no discretion to
alter or modify the parties' agreement. Entry of a Rule
68 judgment is ministerial rather than discretionary.
… Once the acceptance has been properly filed,
judgment must be entered.” Webb v. James, 147
F.3d 617, 621 (7th Cir. 1998) (internal citations and
courts use contract principles to interpret offers of
judgment. Id. at 620; see also Radecki, 858
F.2d at 400 (“To decide whether there has been a valid
offer and acceptance for purposes of Rule 68, courts apply
principles of contract law.”). Under such principles,
“[a] binding contract requires an objective
manifestation of mutual assent.” Hefter &
Carroll v. Abraham, No. 07 C 4137, 2007 WL 3334349, at
*4 (N.D. Ill. Nov. 8, 2007) (citing Abbot Labs. v. Alpha
Therapeutic Corp., 164 F.3d 385, 387 (7th Cir. 1999)).
“[U]nder the law of every state, the interpretation of
an agreement is governed by the parties' objective
expressions of intent.” Motorola Sols., Inc. v.
Hytera Commc'ns Corp., No. 17 C 1973, 2019 WL
1593940, at *3 (N.D. Ill. Apr. 15, 2019) (citing Hampton
v. Ford Motor Co., 561 F.3d 709, 714 (7th Cir. 2009)).
“There must be a determination based on an objective
appraisal of the parties' conduct, not their
subjective beliefs.” Id. at *3 (emphasis
Defendant made an unambiguous offer to Mr. Peck of “$1,
101, plus costs to be awarded by the court.” Mr. Peck
unequivocally accepted that offer without including any
additional terms that could be construed as a counteroffer.
See Nordby v. Anchor Hocking Packaging Co., 199 F.3d
390, 391-92 (7th Cir. 1999) (finding that the plaintiff's
acceptance was not a counteroffer because he had accepted the
defendants' unambiguous offer without qualification).
Thus, there was an objective manifestation of mutual assent
between the parties at the time of acceptance, creating a
binding agreement. See Motorola Sols., 2019 WL
1593940, at *3 (“[I]t is objective intent that governs,
not some subjective theory of ‘meeting of the
minds' that determines whether contract formation has
occurred and what the agreement entails.”).
Accordingly, judgment in accordance with the terms of
Defendant's offer shall enter, based on Mr. Peck's
filing of the notice of acceptance of the offer, and proof of
service. Mr. Peck's post-acceptance communications with
Defendant are irrelevant under the applicable legal
standards. See Webb, 147 F.3d at 621 (“Once
the acceptance [under Rule 68] has been properly filed,
judgment must be entered.”) (emphasis added).
determined that Mr. Peck's acceptance of Defendant's
offer was valid, we order the Clerk of Court to enter
judgment consistent with the terms of Defendant's Rule 68
offer. Mr. Peck is hereby ordered to file a bill of costs
within thirty (30) days of the date of the Order, outlining
the costs to which he claims he is entitled under 28 U.S.C.
§ 1920. His failure to do so shall result in closure of
this case. All other pending motions in this action are
denied as moot.
 28 U.S.C. § 1920 provides in
relevant part as follows:
A judge or clerk of any court of the United States may
tax as costs the ...