Baker v. Hamm

Full title: Carolyn Baker and William Baker v. Benjamin F. Hamm

Court: Superior Court of Delaware

Date published: Jan 6, 2004

C.A. No. 02C-11-034 HdR (Del. Super. Ct. Jan. 6, 2004)

Opinion

C.A. No. 02C-11-034 HdR.

January 6, 2004.

Upon Plaintiff's Motion for Costs GRANTED.

Upon Defendant's Motion for Costs DENIED.

Stephen A. Hampton, Esq. Dover, DE.

Robert B. Young, Esq., Young Young, Dover, DE.

HENRY duPONT RIDGELY PRESIDENT JUDGE.

Counsel:

Before the Court are cross motions for an award of costs. At issue is the timeliness of an Offer of Judgment pursuant to Superior Court Civil Rule 68. At trial the jury awarded a verdict that exceeded the offer as to Plaintiff William Baker. The jury awarded a verdict that did not exceed the offer as to Plaintiff Carolyn Baker. Plaintiffs seek an award of costs under Rule 54 and argue that the Offer of Judgment was untimely. Defendant argues that the offer was timely and that he is entitled to an award of costs under Rule 68. It is undisputed that the costs each party is seeking are reasonable.

The Offer of Judgment was made by Defendant on November 26, 2003. The trial began 11 days later on December 8, 2003. During this time period there were four weekend days and two legal holidays, Thanksgiving and the Friday after Thanksgiving.

Superior Court Civil Rule 68 states that an Offer of Judgment may be made at any time more than ten days before the trial begins. However, Rule 6(a) provides that when the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and other legal holidays shall be excluded in the computation.

Superior Court Civil Rule 6(a) by its terms applies to "any period of time prescribed or allowed by these Rules, by order of the court or by statute." (emphasis added). Superior Court Civil Rules 6 and 68 are patterned after Federal Rules of Civil Procedure Rules 6 and 68. Under the Federal Rules the ten day interval under Rule 68 "does not include intermediate Saturdays, Sundays and holidays under Rule 6(a) because the period is less than eleven days."¹ When these days are deducted from the time interval here, it is clear that the offer of judgment was not filed more than 10 days before the trial began. Thus, Defendant is precluded from any award of costs under Rule 68 because the Offer of Judgment was untimely.²

1 68 THOMAS D. ROWE, JR., MOORE'S FEDERAL PRACTICE § 68.04[3], 22 (3 ed. 2003).

2 Polk v. Montgomery County, Maryland, 130 F.R.D. 40, 42 (D. Md. 1990).

Accordingly, Defendant's Motion for costs is denied. Plaintiffs' Motion for Costs in the amount of $3,154.00 is granted.

IT IS SO ORDERED.