Marek v. Chesney

LOCATION: San Francisco Scrap Metals, Inc.

DOCKET NO.: 83-1437
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 473 US 1 (1985)
ARGUED: Dec 05, 1984
DECIDED: Jun 27, 1985

Donald G. Peterson - on behalf of the petitioners
Jerrold J. Ganzfried - on behalf of the United States as amicus curiae in support of petitioners
Victor J. Stone - on behalf of the respondent

Facts of the case


Media for Marek v. Chesney

Audio Transcription for Oral Argument - December 05, 1984 in Marek v. Chesney

Warren E. Burger:

Mr. Peterson, you may proceed whenever you are ready.

Donald G. Peterson:

Mr. Chief Justice, and may it please the Court, the facts of this case are important to this Court for two reasons: One, to decide this case and; two, to evolve, to develop, to define the principles that should be applied in the future.

The facts of this case are that in October of 1979 a law suit was brought pleading a cause of action under 1983.

Two years later, after the case had been pending in the Northern District of Illinois, the defendant, the petitioner here, made an offer to the complainant.

The offer was a substantial offer.

The offer was $100,000.

After the offer of $100,000 was made, pre-trial conferences were held, discovery was reopened, the case proceeded.

That was November 5, 1971.

In April of 1982 this case proceeded to trial.

The negotiations had proved unsuccessful.

The attempt to resolve this case without a jury trial proved unsuccessful.

A long, hard-fought, well-fought and fairly-fought struggle took place in that courtroom, with expert witnesses on police procedure, with expert witnesses on ballistics, with expert witnesses on criminal evidence.

When the jury went back to deliberate, they had about three weeks of proceedings that they had heard.

The attorney representing the plaintiff at trial, representing the respondent here, was an outstanding and excellent and effective advocate of his client's case.

He had not with his client agreed to accept the $100,000 that was offered him.

For the defendant to offer that plaintiff $100,000 meant that that defendant's attorney had to persuade his clients and principals to come up with that money, because under Rule 68, when that offer is put on paper, when that offer is served, the plaintiffs... excuse me, the defendant, the petitioner here, is going to have to live with it, because the plaintiff may take it.

And if the plaintiff takes it, there is a judgment entered and the defendant can do nothing but pay that judgment.

The defendant, petitioner here, before making the offer had to evaluate the case, had to study the Federal Rules of Civil Procedure... I believe there's 86 of them; this is Rule 68... had to, under the state of the law as it existed at that time, make a judgment as to how to use 68 and how it might affect or be affected by 1988.

If the defendant on that occasion, November 5, 1981, when he made that offer, if he did not offer attorney's fees to the plaintiff, if he did not indicate, as he did, that attorney's fees were included in the offer, I suggest that when... if the plaintiff had accepted the offer the plaintiff would have come back to the Court and asked the Court to assess attorney's fees stacked on top of that $100,000.

In this case, the fees accrued or alleged to be accrued in the trial court amount to around $171,000 perhaps even $173,000.

Without making that offer as it was made, petitioners would have put $100,000 on the table, had it taken away from them, and exposed themselves to the potential of another $171,000 or $173,000.

The plain meaning of 1988 authorized, sanctions, and encourages what the defendant did.

What the defendant did in these circumstances was fair.

It was fair to the plaintiff; it was fair to the defendant.

William H. Rehnquist:

Was there any request for injunctive relief in this case, or was it just a damages action?

Donald G. Peterson:

Justice Rehnquist, the complaint in this case did have injunctive relief.

It pled in the complaint that the police officers in question should be disarmed, that the Village of Berkeley should undertake to do that.

The Village of Berkeley ended up with a verdict of not guilty.

But there was injunctive relief in this case, and an offer including injunctive relief was not made.

We did not offer to disarm the police officers or give them any of the other remedies they sought.