Peter McCauley v. Trans Union, L.L.C., Docket No. 04-1386-Cv, 402 F.3d 340 (2d Cir. 2005). · Go Syfert
Peter McCauley v. Trans Union, L.L.C., Docket No. 04-1386-Cv, 402 F.3d 340 (2d Cir. 2005). Cases Citing This Book View Copy Cite
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cited 5× by 5 distinct cases, 2015–2024 · 2 courts · …rejected settlement offer under rule 68, by itself, cannot render moot a case. at p. 342 ⚠ not in text Topic ↗
104 citation events (104 in the last 25 years) across 21 distinct courts.
Strongest positive: Weisman v. Barnes Jewish Hospital (moed, 2024-03-25)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 37 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Weisman v. Barnes Jewish Hospital (2×) also: Cited "see"
E.D. Mo. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
a default judgment would serve trans union's desire to end the case, would award mccauley his damages and, like the rule 68 settlement offer, would have no preclusive effect in other litigation
discussed Cited as authority (verbatim quote) Cocina Cultura LLC v. State of Oregon
D. Or. · 2021 · signal: see also · quote attribution · 1 verbatim quote · confidence high
mccauley is not entitled to keep litigating his claim simply because trans union has not admitted liability.
discussed Cited as authority (verbatim quote) Bais Yaakov of Spring Valley v. Houghton Mifflin Harcourt Publishers, Inc.
S.D.N.Y. · 2021 · quote attribution · 1 verbatim quote · confidence high
entry of a default judgment would remove any live controversy from this case and render it moot.
discussed Cited as authority (verbatim quote) Jones-Bartley v. McCabe, Weisberg & Conway, P.C. (2×) also: Cited "see, e.g."
unknown court · 2014 · quote attribution · 1 verbatim quote · confidence high
we find- that the plaintiffs refusal did not, in and of itself, moot the case....
discussed Cited as authority (quoted) Radha Geismann, M.D., P.C. v. Zocdoc, Inc. (2×) also: Cited "see, e.g."
2d Cir. · 2018 · quote attribution · 1 verbatim quote · confidence low
a default judgment would remove any live controversy from this case and render it moot.
examined Cited as authority (quoted) Diaz v. First American Home Buyers Protection Corp. (3×) also: Cited as authority (rule), Cited "see"
9th Cir. · 2013 · quote attribution · 1 verbatim quote · confidence low
at oral argument, both parties agreed that entry of a default judgment would satisfactorily resolve this case.
discussed Cited as authority (rule) Radha Geismann, M.D., P.C. v. ZocDoc, Inc. (2×) also: Cited "see, e.g."
2d Cir. · 2018 · confidence medium
P. 8(c)(1) (recognizing accord and satisfaction as an affirmative defense). 18 17‐2692 Radha Geismann, M.D., P.C. v. ZocDoc, Inc. 1 defendant—even without the plaintiff’s agreement thereto—and “[t]hen, after 2 judgment is entered, the plaintiff’s individual claims will become moot for 3 purposes of Article III.” Tanasi v. New Alliance Bank, 786 F.3d 195, 200 (2d Cir. 4 2015) (emphasis in original); see also Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir. 5 2013) (describing this process as “the typically proper disposition” under such 6 circumstances); McCauley v. Trans Union, …
discussed Cited as authority (rule) Bais Yaakov of Spring Valley v. Educational Testing Service (2×) also: Cited "see"
S.D.N.Y. · 2017 · confidence medium
But in so holding, the Second Circuit cited a “way to a better resolution” offered by the Seventh Circuit in Chathas v. Local 134 IBEW, 233 F.3d 508 (7th Cir. 2000): “entry of a default judgment against [the defendant].” McCauley, 402 F.3d at 342 (internal quotation marks omitted).
discussed Cited as authority (rule) Richard Chen v. Allstate Insurance Co.
9th Cir. · 2016 · confidence medium
See Already, LLC v. Nike, Inc., — U.S. —, 133 S.Ct. 721, 726-33 , 184 L.Ed.2d 553 (2013) (holding a covenant not to sue mooted a counterclaim of trademark invalidity, notwithstanding the lack of an admission or finding of liability); McCauley v. Trans Union, LLC, 402 F.3d 340, 342 (2d Cir.2005) (holding a plaintiff “is not entitled to keep litigating his claim simply because [the defendant] has not admitted liability”). 2.
examined Cited as authority (rule) Leyse v. Lifetime Entertainment Services, LLC (3×) also: Cited "see"
S.D.N.Y. · 2016 · confidence medium
See, e.g., Bank v. Carabean Cruise Line, Inc., 606 Fed.Appx. 30, 31 (2d Cir.2015) (“Where there is an unaccepted offer of judgment that would afford the plaintiff complete relief, we have held that ‘the typically proper disposition in such a situation is for the district court to enter judgment against the defendant for the proffered amount and to direct payment to the plaintiff consistent with the offer.’ ” (quoting Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir.2013))); McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir.2005).
cited Cited as authority (rule) Doe v. Spartanburg County School District Three
D.S.C. · 2016 · confidence medium
McCauley v. Trans Union, L.L.C., 402 F.3d 340, 341-42 (2d Cir.2005).
discussed Cited as authority (rule) Bank v. Caribbean Cruise Line, Inc.
2d Cir. · 2015 · confidence medium
Rather, where there is an unaccepted offer of judgment that would afford the plaintiff complete relief, we have held that “the typically proper disposition in such a situation is for the district court to enter judgment against the defendant for the proffered amount and to direct payment to the plaintiff consistent with the offer.” Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir.2013) (citing McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir.2005)); see also Tanasi, 786 F.3d at 200 (explaining that if the parties do not “agree that a judgment should be entered against the defendant…
discussed Cited as authority (rule) Zeitlin v. New York Islanders Hockey Club, L.P. (2×) also: Cited "see, e.g."
N.Y. Sup. Ct. · 2015 · confidence medium
Co. of Hartford, Conn. v Electrolux Home Prods., Inc., 2011 WL 3295510 , *2-3, 2011 US Dist LEXIS 83974 , *4-8 [WD NY, Aug. 1, 2011, No. 08-CV-623A]; see Hepler v Abercrombie & Fitch Co., 607 Fed Appx 91, 92 [2d Cir 2015]; Tanasi v New Alliance Bank, 786 F3d 195, 198-199 [2d Cir 2015]; Fed Rules Civ Pro rule 68), federal courts are constrained by the case or controversy, jurisdictional limitations set forth in article III of the United States Constitution, “a requirement that has no analogue in the State Constitution” (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1…
discussed Cited as authority (rule) Charlessaint v. Persion Acceptance Corp.
D. Mass. · 2015 · confidence medium
Although it has "reit-eratefd] that it remains the established law of this Circuit that a 'rejected settlement offer [under Rule 68], by itself, [cannot render] moot[] [a] case’”, Tanasi v. New Alliance Bank, 786 F.3d 195, 200 (2d Cir.2015), as amended (May 21, 2015) (alterations in Tanasi ), citing McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir.2005), it has concluded that entry of default judgment in favor of the plaintiff in the offered amount is the "better solution." McCauley, 402 F.3d at 342 . .
cited Cited as authority (rule) Hepler v. Abercrombie & Fitch Co.
2d Cir. · 2015 · confidence medium
McCauley v. Trans Union, L.L.C., 402 F.3d 340, 341 (2d Cir.2005); Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir.2013) (per curiam); accord Tanasi, 786 F.3d at 200 .
discussed Cited as authority (rule) Tanasi v. New Alliance Bank
2d Cir. · 2015 · confidence medium
In light of this confusion, we find it necessary to the resolution of this case to clarify and reiterate that it remains the established law of this Circuit that a “rejected settlement offer [under Rule 68], by itself, [cannot render] moot[] [a] case.”6 McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir. 2005).
discussed Cited as authority (rule) Tanasi v. New Alliance Bank
2d Cir. · 2015 · confidence medium
In light of this confusion, we find it necessary to the resolution of this case to clarify and reiterate that it remains the established law of this Circuit that a “rejected settlement offer [under Rule 68], by itself, [cannot render] moot[] [a] case.”6 McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir. 2005).
discussed Cited as authority (rule) Tanasi v. New Alliance Bank (2×) also: Cited "see"
2d Cir. · 2015 · confidence medium
In light of this confusion, we find it necessary to the resolution of this case to clarify and reiterate that it remains the established law of this Circuit that a “rejected settlement offer [under Rule 68], by itself, [cannot render] moot[ ] [a] case.” 6 McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir.2005).
discussed Cited as authority (rule) Tanasi v. New Alliance Bank
2d Cir. · 2015 · confidence medium
In light of this confusion, we find it necessary to the resolution of this case to clarify and reiterate that it remains the established law of this Circuit that a “rejected settlement offer [under Rule 68], by itself, [cannot render] moot[] [a] case.”6 McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir. 2005).
discussed Cited as authority (rule) Nicholson v. Allied Interstate, LLC (2×) also: Cited "see"
E.D.N.Y · 2015 · confidence medium
In McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir.2005), the district court had dismissed the plaintiffs claims under Rule 12(b)(1), because the plaintiff had rejected a Rule 68 offer of judgment for the full amount claimed in the complaint.
discussed Cited as authority (rule) Lary v. Rexall Sundown, Inc.
E.D.N.Y · 2015 · confidence medium
In McCauley v. Trans Union, L.L.C., 402 F.3d 340, 340 (2d Cir.2005), the pro se plaintiff sued credit reporting agency Trans Union, L.L.C. (“Trans Union”), alleging that it incorrectly reported plaintiff as having two (2) outstanding tax liens, thereby preventing him from securing a student loan with Sallie Mae.
discussed Cited as authority (rule) Boucher v. Rioux
D.N.H. · 2014 · confidence medium
The Supreme Court described the circuit split it identified this way: “Compare, e.g., Weiss v. Regal Collections, 385 F.3d 337, 340 (3d Cir. 2004) with McCauley v. Trans Union, LLC, 402 F.3d 340, 342 (2d Cir. 2005).” Genesis, 133 S. Ct. at 1528 n.3. 9 2013); (2) restated the rule from O’Brien that a case or controversy may be mooted when “an offer of judgment [gives] the plaintiff everything he has asked for as an individual [which] means his ‘entire demand,’” Hrivnak, 719 F.3d at 567 (emphasis in the original); and (3) did not mention Justice Kagan’s dissent.
cited Cited as authority (rule) Kaye v. Amicus Mediation & Arbitration Group, Inc.
D. Conn. · 2014 · confidence medium
Cabala, 736 F.3d at 230 ; Doyle, 722 F.3d at 80 ; McCauley v. Trans Union, LLC, 402 F.3d 340, 341 (2d Cir.2005).
cited Cited as authority (rule) Gorden v. Lloyd Ward & Associates, PC
Wash. Ct. App. · 2014 · confidence medium
Id. (citing O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 575 (6th Cir. 2009); McCauley v. Trans Union, LLC, 402 F. 3d 340, 342 (2d Cir. 2005)).
cited Cited as authority (rule) Sherrie Kay Gorden v. Lloyd Ward & Assoc. Pc
Wash. Ct. App. · 2014 · confidence medium
Genesis, 133 S. Ct. at 1529 n.4 (citing O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 575 (C.A. 62009); McCauley v. Trans Union, LLC, 402 F.3d 340, 342 (C.A. 2 2005».
cited Cited as authority (rule) Weitzner v. Sanofi Pasteur, Inc.
M.D. Penn. · 2014 · confidence medium
McCauley v. Trans Union, LLG., 402 F.3d 340, 342 (2d Cir.2005).
cited Cited as authority (rule) Yaakov v. Act, Inc.
D. Mass. · 2013 · confidence medium
McCauley v. Trans Union, LLC, 402 F.3d 340, 342 (2d Cir.2005).
discussed Cited as authority (rule) Scott v. Westlake Services, LLC
N.D. Ill. · 2013 · confidence medium
The Supreme Court stated that “[wjhile the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiffs claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us.” Id. at 1528-29 & 1528 n. 3 (footnote omitted) (illustrating the split among the Circuits by comparing Weiss v. Regal Collections, 385 F.3d 337, 340 (3d Cir.2004), with McCauley v. Trans Union, LLC, 402 F.3d 340, 342 (2d Cir.2005)).
discussed Cited as authority (rule) Blanche M. Dellapietro v. ARS National Services, Inc.
11th Cir. · 2012 · confidence medium
But see O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 575 (6th Cir.2009) (expressing disagreement “with the Seventh Circuit’s view that a plaintiff loses outright when he refuses an offer of judgment that would satisfy his entire demand”); McCauley v. Trans Union, L.L.C., 402 F.3d 340, 340 (2d Cir.2005) (holding that a plaintiff’s rejection of an offer of judgment for the full amount desired does not, in and of itself, moot the case). 9 .
discussed Cited as authority (rule) Simmons v. United Mortgage & Loan Investment, LLC (2×) also: Cited "see"
4th Cir. · 2011 · signal: cf. · confidence medium
Cf. McCauley, 402 F.3d at 342 (plaintiff not obligated to accept a Rule 68 offer of judgment conditioned on settlement being kept confidential and judgment under seal; party engaged in litigation is not entitled to confidentiality).
cited Cited "see" David Hooks v. Landmark Industries, Inc.
5th Cir. · 2015 · signal: see · confidence high
See McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir.2005); Diaz, 732 F.3d at 954-55 ; Stein v. Buccaneers Ltd.
discussed Cited "see" Fernandez v. Peter J. Craig & Associates, P.C.
E.D.N.Y · 2013 · signal: see · confidence high
See McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir.2005), And, an offer of settlement that does not provide for the entry of judgment is not the equivalent of a Rule 68 offer of judgment and is not treated as such.
discussed Cited "see" Boutros v. JTC Painting & Decorating Corp. (2×) also: Cited "see, e.g."
S.D.N.Y. · 2013 · signal: see · confidence high
See McCauley, 402 F.3d at 341 (offer included “the only possible damages [plaintiff] may still recover.”); Abrams, 719 F.2d at 32 (“all that remains is their individual claims, for which Interco admittedly has offered to pay much more than plaintiffs could obtain by suit.”); Ward, 455 F.Supp.2d at 269-70 (“BONY’S offer far exceeds all Ward could recover at trial.”); cf. id. (“Courts have, however, denied a defendant’s motion to dismiss on mootness grounds where the plaintiff potentially could recover more than the relief offered by defendant, such as where the offer is not co…
discussed Cited "see" Genesis HealthCare Corp. v. Symczyk (2×) also: Cited "see, e.g."
SCOTUS · 2013 · signal: see · confidence high
See United States Parole Comm'n v. Geraghty, 445 U.S. 388 , 404, 100 S.Ct. 1202 , 63 L.Ed.2d 479 (1980). 3 Compare, e.g., Weiss v. Regal Collections, 385 F.3d 337 , 340 (C.A.3 2004), with McCauley v. Trans Union, LLC, 402 F.3d 340 , 342 (C.A.2 2005). 4 While we do not resolve the question whether a Rule 68 offer that fully satisfies the plaintiff's claims is sufficient by itself to moot the action, supra, at 1528, we note that Courts of Appeals on both sides of that issue have recognized that a plaintiff's claim may be satisfied even without the plaintiff's consent.
cited Cited "see" Lowell v. Hayes
Alaska · 2005 · signal: see · confidence high
See McCauley v. Trans Union, L.L.C., 402 F.3d 340, 341-42 (2d Cir.2005) (citing Cathas v. Local 134 IBEW, 233 F.3d 508, 512 (7th Cir.2000)) (Rule 68 offer may contain disclaimer of liability).
discussed Cited "see, e.g." Jenkins v. Pech
D. Neb. · 2014 · signal: compare · confidence medium
See Genesis Healthcare Corp., 133 S.Ct. at 1528 -29 & n. 3 (citing eases, noting conflict and declining to resolve it); compare McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir.2005) (rejecting the argument that an unaccepted offer of settlement for the full amount of damages owed “moots” a ease such that the case should be dismissed for lack of jurisdiction if the plaintiff desires to continue the action, but holding the typically proper disposition in such a situation is for the district court to enter judgment against the defendant for the proffered amount and to direct paymen…
cited Cited "see, e.g." Gildor v. United States Postal Service
N.D.N.Y. · 2007 · signal: see also · confidence medium
See also McCauley v. Trans Union, L.L.C., 402 F.3d 340, 341-2 (2005).
Retrieving the full opinion text from the archive…
Peter MCCAULEY, Plaintiff-Appellant,
v.
TRANS UNION, L.L.C., Defendant-Appellee
340.
Court of Appeals for the Second Circuit.
Mar 24, 2005.
402 F.3d 340
2005 U.S. App. LEXIS 4817
Peter McCauley, New York, NY, Plaintiff-Appellant Pro Se., Mark E. Kogan, Philadelphia, PA (Timothy P. Creech, Satzberg, Trichon, Kogan & Wertheimer, P.C., of counsel), for Defendant-Appellee.
Oakes, Raggi, Wesley.
Cited by 41 opinions  |  Published
3 passages pin-cited by 3 cases
Pinpoint authority: #31,911 of 633,719
Citer courts: Second Circuit (1) · Ninth Circuit (1)
OAKES, Senior Circuit Judge.

This pro se appeal raises the question whether a plaintiffs rejection of an offer of judgment under Fed.R.Civ.P. 68 moots the case so that entry of judgment in favor of the defendant is appropriate. The United State District Court for the Southern District of New York, Victor Marrero, Judge, dismissed this case as moot and entered judgment in favor of the defendant when the defendant’s offer of judgment was refused. Because we find that the plaintiffs refusal did not, in and of itself, moot the case, we vacate the judgment and remand for entry of a default judgment in favor of the plaintiff.

The facts behind this appeal can be quickly summarized. In May 2002, Peter McCauley filed a complaint against Trans Union, a consumer reporting agency, alleging that Trans Union had negligently indicated on McCauley’s credit report that he had two outstanding tax liens, thus temporarily preventing McCauley from securing a student loan with Sallie Mae Servicing Corporation (“Sallie Mae”). McCauley demanded damages in the amount of $240, which was the fee he incurred when, after he was refused a loan by Sallie Mae, he[*341] charged over $8,000 in tuition to his credit card.

In June 2002, Trans Union filed an answer to McCauley’s complaint, which denied all allegations and requested that the court dismiss McCauley’s complaint with prejudice. In October 2002, Trans Union made an offer of judgment pursuant to Fed.R.Civ.P. 68 [1] for $240, plus costs to be determined by the court. The offer of judgment specified that it not be construed as an admission of liability and that it remain confidential and filed under seal.

In September 2003, Trans Union moved for summary judgment, arguing that it had offered McCauley the entire amount of compensatory damages he had sought, eliminating any “case or controversy” with respect to McCauley’s claims. The district court granted the motion in part, and denied in part, finding that because there remained a possibility that McCauley could recover punitive damages at the time of the settlement offer, Trans Union’s offer did not encompass everything McCauley could possibly have been entitled to recover from his claims. The court acknowledged, however, that punitive damages were no longer available to McCauley and concluded that “the only possible damages McCauley may still recover ... would be $240 along with the costs of the action. Were Trans Union now to make an identical Rule 68 offer of judgment that it made prior to filing this motion ... the Court would be compelled to dismiss the action if McCauley were to reject the offer.”

Thereafter, Trans Union renewed its offer of $240 plus court costs to McCauley. Because McCauley refused to accept the offer, the court dismissed the case in December 2003, holding that the offer constituted everything McCauley would potentially recover through successful litigation. Judgment was entered in favor of Trans Union.

On appeal, McCauley argues that he is seeking not just his actual damages of $240 but, more importantly, the precedential value of a judgment against Trans Union, which is frustrated by the language in Trans Union’s settlement offer requiring that the settlement be confidential and filed under seal. McCauley contends that he has a legal and cognizable interest in obtaining a judgment that is not confidential and sealed, and thus can be used as precedent in future matters. He also asserts that, even if the district court properly dismissed his claim, it erred in failing to enter a judgment of $240 plus costs against Trans Union.

We have held that the federal courts lack jurisdiction in a case because of mootness “when the parties lack a legally cognizable interest in the outcome.” Fox v. Bd. of Trustees of State Univ. of New York, 42 F.3d 135, 140 (2d Cir.1994) (internal quotation omitted). It is clear that Trans Union’s unwillingness to admit liability is insufficient, standing alone, to make this case a live controversy. See Abrams v. Interco, Inc., 719 F.2d 23, 33 n. 9 (2d Cir.1983) (plaintiff is not entitled to “pursue litigation in which he no longer has an interest merely because this could benefit others”). As explained by a sister circuit in discussing disclaimers of liability in Rule 68 settlement offers, “a party [cannot] force his opponent to confess to having violated the law, as it is always open to a defendant to default and suffer judgment to be entered against him without his admitting anything.” Chathas v. Local 134 IBEW, 233 F.3d 508, 512 (7th Cir.2000).[*342] The Chathas court went on to say, “if the defendant has thus thrown in the towel there is nothing left for the district court to do except enter judgment. The absence of a controversy in the constitutional sense precludes the court from issuing an opinion on whether the defendant actually violated the law.” Id.

Although McCauley is not entitled to keep litigating his claim simply because Trans Union has not admitted liability, Chathas’s language suggests that the district court’s entry of judgment for Trans Union did not moot this case. In the absence of an obligation to pay McCauley the $240 in claimed damages, the controversy between McCauley and Trans Union is still alive. When Trans Union acknowledged that it owes McCauley $240, but offered the money with the requirement that the settlement be confidential, Trans Union made a conditional offer that McCauley was not obliged to take. Because judgment was then entered in Trans Union’s favor, Trans Union was relieved of the obligation to pay the $240 it admittedly owes, and McCauley, by his refusal of a conditional settlement offer, wound up with nothing. We therefore cannot conclude that the rejected settlement offer, by itself, moots the case so as to warrant entry of judgment in favor of Trans Union.

Chathas points the way to a better resolution: entry of a default judgment against Trans Union for $240 plus reasonable costs. Such a judgment would remove any live controversy from this case and render it moot. Moreover, a default judgment would serve Trans Union’s desire to end the case, would award McCauley his damages and, like the Rule 68 settlement offer, would have no preclusive effect in other litigation. Unlike the settlement offer, however, the default judgment would be a matter of public record, satisfying McCau-ley’s desire that the case’s disposition not be confidential. Although Trans Union sought to avoid this last result, a party engaged in litigation is not entitled to insist on confidentiality. See Gambale v. Deutsche Bank AG, 377 F.3d 133, 140 (2d Cir.2004) (“The public’s stake in the propriety and particulars of the court’s adjudication does not evaporate upon the parties’ subsequent decision to settle.”).

At oral argument, both parties agreed that entry of a default judgment would satisfactorily resolve this case. We have considered McCauley’s arguments with respect to attorney’s fees and find them to be without merit. We therefore vacate the judgment entered in favor of Trans Union and remand the case to the district court for the limited purpose of entering a default judgment in favor of McCauley for $240 plus such costs as the district court deems reasonable.

1

. Fed.R.Civ.P. 68 (2004) states that "a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money ..., with costs then accrued.”