UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA LAFAYETTE DIVISION OYINDAMOLA OLUWATIMI,) Plaintiff,) )vs. ) ) CITY OF WEST LAFAYETTE, and )OFFICER ARON M. THOMPSON, in his) Individual and official capacities,)Case No: 4:15-cv-00004-RLM-PRC OFFICER NANCEE L. HETRICK, in her) Individual and official capacities,) OFFICER DAVID S. SMITH, in his ) Individual and official capacities,) OFFICER MARK GOSNEY, in his) Individual and official capacities,) Defendants.) MOTION TO STRIKE OR OTHERWISE INVALIDATE OFFER OF JUDGMENT Comes now the Plaintiff, Oyindamola Oluwatimi, by and through counsel of record, Scott L. Barnhart of Keffer Barnhart LLP, and hereby moves this Court to strike or otherwise invalidate the document entitled Offer of Judgmenttendered to undersigned counsel on or about July 9, 2015, by the Defendants via email.In support of said Motion, the Plaintiff states as follows: 1.On or about July 9, 2015, counsel for the Defendantssent a document entitled Offer of Judgment to undersigned counsel via email offering to allow judgment be entered against theDefendantsinexchangeforTenThousandandOneDollars($10,001.00)plus reasonableattorneysfeesandcoststobepaidtothePlaintiff.SeeExhibitA(attached hereto). 2.While that document claimed to be made pursuant toFed. R. Civ. P. 68, it contained, in addition to the above specified terms, a broad and vague provision requiring that the offer, USDC IN/ND case 4:15-cv-00004-RLM-PRC document 18 filed 07/20/15 page 1 of 5ifaccepted,beconfidentialinnatureandliquidateddamagesassessedshouldthat confidential nature be violated by the Plaintiff or undersigned counsel. 3.Fed. R. Civ. P. 68 states in part: (a) At least 14 days before the date set for trial, a party defending againstaclaimmayserveonanopposingpartyanoffertoallow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance,plusproofofservice.Theclerkmustthenenter judgment (d)Ifthejudgmentthattheoffereefinallyobtainsisnotmore favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made. 4.First, the Plaintiff could not possibly adhere to the Defendants confidentiality provision, as Fed. R. Civ. P. 68 requires that the offer itself be filed with the Court, making the offer available to the public.See Chambers v. Midwest Indep. Transmission Sys. Operator, Inc., 3010WL3037365,3(S.D.Ind.2010)(statingthat[f]ilingessentiallytransformsa confidential unaccepted offer into a matter of public record upon acceptance.).5.Further, the Defendants concession to a judgment must also be filed with the Court, and mustthereforebepublic.SeeChambersv.MidwestIndep.TransmissionSys.Operator, Inc., 3010 WL 3037365, 3 (S.D. Ind. 2010) (stating that a defendants offer of judgment cannot result in a private settlement agreement; instead, the result of its acceptance allowed by rule is an entry of judgment for a sum certain.Entries of judgement are presumptively open and viewable to the public.).See also Webb v. James, 147 F.3d 617, 621 (7th Cir. 1998) (noting the automatic operation of Rule 68 removes the discretion from the clerk or the trial court as to whether to enter judgment). 6.However,theDefendantshereappearonlytobewillingtohaveajudgemententered against them if that judgment is private and confidential.Simply put, that is not how Fed. USDC IN/ND case 4:15-cv-00004-RLM-PRC document 18 filed 07/20/15 page 2 of 5R. Civ. P. 68 works.See Chambers v. Midwest Indep. Transmission Sys. Operator, Inc., 3010 WL 3037365, 3 (S.D. Ind. 2010) (stating that Rule 68 mixes the judicial role with the role of private parties in settlement but, ultimately, when a party avails itself of the rule, it is invoking the power of the court to general a final judgment.). 7.Second,theDefendantsofferappearstobeanattemptbytheDefendantstoreapthe benefits of private settlement while saddling the Plaintiff with the binding effects of a Rule 68offerandrestraininghisFirstAmendmentrightswithanamorphousconfidentiality requirement and a liquidated damages provision. 8.Thelanguageoftherulemakesclearthatthereissubstantialriskassociatedwiththe Plaintiffs choice, no matter his decision.See Webb v. James, 147 F.3d 617, 621 (7th Cir. 1998) (noting that a plaintiff who receives a Rule 68 offer is in a difficult position because the offer has a binding effect when refused as well as when accepted).9.Here, the risk is even more substantial.The Defendants apparently intended to have made an offer with all the risk associated with a Fed. R. Civ. P. 68 offer, in addition to the extra burdenofaconfidentialityprovisionissovaguethatthePlaintiffisleftguessingatthe ambiguitiesincludedtherein.SeeWebb,147F.3dat621(7thCir.1998)(statingthat [u]nless the defendant allows the plaintiff to resolve or eliminate ambiguities, the plaintiff will be forced to guess whether and how the court would interpret the extrinsic evidence.) See, e.g., Sanchez v. Prudential Pizza, Inc., 709 F.3d 689, 693-94 (7th Cir. 2013) (noting that an ambiguous offer puts the plaintiff in a very difficult situation and would allow the offering defendant to exploit the ambiguity in away that has the flavor of headsI win, tails you lose.).The ambiguity in the Defendants offer is so great that the Plaintiff could not reasonably guess at the contours of the provision and contrary to public policy. USDC IN/ND case 4:15-cv-00004-RLM-PRC document 18 filed 07/20/15 page 3 of 510. Finally, the Defendants offer contains other language that would undermine the Plaintiffs position as a prevailing party, should a judgment be entered in his favor.Specifically, the offer states that it is not to be construed as either an admission of liability, or that Plaintiff hassufferedanydamage.SeeExhibitA(attachedhereto).However,[t]heSeventh CircuithasclearlyindicatedthatwhereaplaintiffacceptsanOfferofJudgmentand judgment is entered in favor of the Plaintiffs, the plaintiff is a prevailing party Garcia v. Oasis Legal Fin. Operating Co., 608 F.Supp.2d 975, 979 (N.D. Ill. 2009).See also Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999). 11. For the foregoing reasons, the offer tendered to the Plaintiff on or about July 9, 2015, is outside the scope of Fed. R. Civ. P. 68 and the Plaintiff should not be held under that rules requirements.The offer should be stricken or invalidated by this Court.WHEREFORE,thePlaintiffrespectfullyrequeststhisCourtstrikeorotherwiseinvalidatethe Defendants offer tendered on or about July 9, 2015, to the extent that it is made pursuant to Fed. R. Civ. P. 68 and for all other just and proper relief. Respectfully Submitted, /s/ Scott L. BarnhartScott L. Barnhart, #25474-82 Keffer Barnhart LLP USDC IN/ND case 4:15-cv-00004-RLM-PRC document 18 filed 07/20/15 page 4 of 5CERTIFICATE OF SERVICE I hereby certify that on this 20th day of July, 2015, a copy of the foregoing Motion was filed electronically.Service of this filing will be made on all ECF-registered counsel by operation of the courts electronic filing system.Parties may access this filing through the courts system. /s/ Scott L. BarnhartScott L. Barnhart, #25474-82 Keffer Barnhart LLP 230 East Ohio Street, Suite 600 Indianapolis, Indiana 46204 Email: Barnhart@KBindy.comPhone: (317) 857-0160 Fax: (855) 641-5311 USDC IN/ND case 4:15-cv-00004-RLM-PRC document 18 filed 07/20/15 page 5 of 5UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA LAFAYETTE DIVISION OYINDAMOLA OLUWATIMI,) Plaintiff,) vs. ) CITY OF WEST LAFAYETTE, and )OFFICER ARON M. THOMPSON, in his) Individual and official capacities,)Case No: 4:15-cv-00004-RLM-PRC OFFICER NANCEE L. HETRICK, in her) Individual and official capacities,) OFFICER DAVID S. SMITH, in his ) Individual and official capacities,) OFFICER MARK GOSNEY, in his) Individual and official capacities,) Defendants.) APPENDIX TO D.E. 18 Comes now the Plaintiff, Oyindamola Oluwatimi, by and through counsel of record, Scott L.BarnhartofKefferBarnhartLLP,andherebyfileshisappendixtoD.E.18.ThisAppendix includes the following document: 1.Exhibit A Offer of Judgment sent via email on or about July 9, 2015. Respectfully Submitted, /s/ Scott L. BarnhartScott L. Barnhart, #25474-82 Keffer Barnhart LLP CERTIFICATE OF SERVICE I hereby certify that on this 21st day of July, 2015, a copy of the foregoing Appendix was filed electronically.Service of this filing will be made on all ECF-registered counsel by operation of the courts electronic filing system.Parties may access this filing through the courts system. /s/ Scott L. BarnhartScott L. Barnhart, #25474-82 Keffer Barnhart LLP 230 East Ohio Street, Suite 600 Indianapolis, Indiana 46204 USDC IN/ND case 4:15-cv-00004-RLM-PRC document 20 filed 07/21/15 page 1 of 1USDC IN/ND case 4:15-cv-00004-RLM-PRC document 20-1 filed 07/21/15 page 1 of 2USDC IN/ND case 4:15-cv-00004-RLM-PRC document 20-1 filed 07/21/15 page 2 of 2UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA LAFAYETTE DIVISION OYINDAMOLA OLUWATIMI) ) Plaintiff) ) vs.) ) CITY OF WEST LAFAYETTE, ) OFFICER ARON M. THOMPSON,) in his official and individual ) capacities, )Case No: 4:15-cv-00004-RLM-PRC NANCEE HETRICK, ) in her official and individual) capacities,) OFFICER DAVID S. SMITH, in his ) official and individual capacities,) OFFICER MARK GOSNEY, in his) official and individual capacities) ) Defendants) ) DEFENDANTS RESPONSE TO PLAINTIFFS MOTION TO SET ASIDE OR INVALIDATE OFFER Comes now Defendants and hereby respectfully would show the Court: 1.Plaintiffs counsel was properly served with a Rule 68 Offer and in addition to filing a Motion to Set Aside or Invalidate said Offer, on July 22, 2015, Scott Barnhart the Plaintiffs counsel further advised defense counsel that Plaintiff has authorized me to deny your private settlement offer, in an email, that was also sent and received via the U.S. Mail. 2.Accordingly, there is no justiciable issue before this Court.Any issue involving the provision of an offer under Rule 68 is moot by virtue of the Plaintiffs Motion and subsequent further rejection of an offer. USDC IN/ND case 4:15-cv-00004-RLM-PRC document 21 filed 07/24/15 page 1 of 23.Plaintiffs counsels action of publicly filing and docketing the Rule 68 Offer as an Exhibit with Court while indicating that it would not be accepted and then further confirming that rejection with counsel, was a undoubtedly grandstand ploy to also put the rejected offer on Plaintiffs advertising website.Hence, because of past activities upon that website, the offer was tendered to be confidential. WHEREFORE, Defendants respectfully pray that the Court deny the Motion of the Plaintiff to set aside or otherwise invalidate said offer since it has been rejected and there is no justiciable issue. Respectfully Submitted, /s/ Kenneth Collier-Magar Kenneth Collier-Magar Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served upon all parties of record this 24th day of July, 2015 via email by operation of the Courts electronic filing system. Scott L. Barnhart Barnhart@KBindy.com /s/ Kenneth Collier-Magar_______ Kenneth Collier-Magar LAW OFFICES OF COLLIER-MAGAR, P.C.211 S. Ritter Avenue, Suite C Indianapolis, IN46219 Phone:(317) 261-1885 Fax:(317) 261-1887 USDC IN/ND case 4:15-cv-00004-RLM-PRC document 21 filed 07/24/15 page 2 of 2UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA LAFAYETTE DIVISION OYINDAMOLA OLUWATIMI,) Plaintiff,) )vs. ) ) CITY OF WEST LAFAYETTE, and )OFFICER ARON M. THOMPSON, in his) Individual and official capacities,)Case No: 4:15-cv-00004-RLM-PRC OFFICER NANCEE L. HETRICK, in her) Individual and official capacities,) OFFICER DAVID S. SMITH, in his ) Individual and official capacities,) OFFICER MARK GOSNEY, in his) Individual and official capacities,) Defendants.) REPLY IN SUPPORT OF MOTION TO STRIKEOR OTHERWISE INVALIDATE OFFER OF JUDGMENT ComesnowthePlaintiff,OyindamolaOluwatimi,byandthroughcounselofrecord, Scott L. Barnhart of Keffer Barnhart LLP, and hereby replies in support of his Motion to Strike orOtherwiseInvalidateOfferofJudgment.InsupportofsaidReply,thePlaintiffstatesas follows: 1.First, the Defendants response offers no substantive argument or legal citations that their offershouldbeconsideredasmadepursuanttoFed.R.Civ.P.68.Therefore,the DefendantshavewaivedthatargumentandhaveconcededthattheOfferwasprivatein nature and not made or governed by Fed. R. Civ. P. 68.See United States v. Hook, 195 F.3d 299, 310 (7th Cir. 1999); Hernandez v. Cook County Sheriffs Office 634 F.3d 906, 913 (7th Cir. 2011).2.Further,DefendantsloneargumentthatPlaintiffsmotionismootiswithoutmerit.PlaintiffsMotiontoStrikeorotherwiseInvalidateOfferofJudgmentwasnotmade USDC IN/ND case 4:15-cv-00004-RLM-PRC document 22 filed 07/29/15 page 1 of 3mootbythePlaintiffsdenialoftheDefendantsprivatesettlementoffer.AsRule68 explains, the denial or failure to respond to an offer governed by the rule has significant implications with respect to Plaintiff if certain conditions are met.The Plaintiff filed his motion in an attempt to protect his rights and not be held liable under Fed. R. Civ. P. 68 as well as move the settlement discussion in this case forward.As such, the denial does not affect or render moot this Courts ruling on whether it constitutes a Rule 68 offer or not. 3.The Plaintiffs Motion was not a grandstand ploy as it, unlike the Defendants response, provided thoughtful legal argument concerning the Plaintiffs obligationsunder Rule 68.PlaintiffattachingtheDefendantsoffertothisCourtaffordstheCourtwiththebest evidence available for it to make its determination on this issue. WHEREFORE,thePlaintiffrespectfullyrequeststhisCourtstrikeorotherwiseinvalidatethe Defendants offer tendered on or about July 9, 2015, to the extent that it is made pursuant to Fed. R. Civ. P. 68 and for all other just and proper relief. Respectfully Submitted, /s/ Scott L. BarnhartScott L. Barnhart, #25474-82 Keffer Barnhart LLP USDC IN/ND case 4:15-cv-00004-RLM-PRC document 22 filed 07/29/15 page 2 of 3CERTIFICATE OF SERVICE I hereby certify that on this 29th day of July, 2015, a copy of the foregoing Reply was filed electronically.Service of this filing will be made on all ECF-registered counsel by operation of the courts electronic filing system.Parties may access this filing through the courts system. /s/ Scott L. BarnhartScott L. Barnhart, #25474-82 Keffer Barnhart LLP 230 East Ohio Street, Suite 600 Indianapolis, Indiana 46204 Email: Barnhart@KBindy.comPhone: (317) 857-0160 Fax: (855) 641-5311 USDC IN/ND case 4:15-cv-00004-RLM-PRC document 22 filed 07/29/15 page 3 of 3