Kim Bevier v. Blue Cross & Blue Shield of So, No. 08-1913 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1913 KIM EDWARD BEVIER; CIRRUS SOFTWARE LLC, Plaintiffs - Appellants, v. BLUE CROSS & BLUE SHIELD OF SOUTH CAROLINA; PALMETTO GBA LLC; TRICENTURION INCORPORATED; TRAILBLAZER HEALTH ENTERPRISES, LLC; DIVERSIFIED SERVICE OPTIONS, INCORPORATED, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:08-cv-00575-CMC) Submitted: July 10, 2009 Before WILKINSON and Senior Circuit Judge. NIEMEYER, Decided: Circuit Judges, July 24, 2009 and HAMILTON, Affirmed by unpublished per curiam opinion. Wallace K. Lightsey, Meliah D. Bowers, WYCHE, BURGESS, FREEMAN & PARHAM, PA, Greenville, South Carolina, for Appellants. M. Dawes Cooke, Jr., B. Craig Killough, John William Fletcher, BARNWELL, WHALEY, PATTERSON & HELMS, LLC, Charleston, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kim proprietor of Bevier, a Cirrus computer Software software LLC engineer ( Cirrus ), and appeals sole the district court s denial of his motion for a permanent injunction and for reconsideration of the entry of judgment. On appeal, Bevier contends that the district court erred in determining that Bevier s acceptance of the Defendants Fed. R. Civ. P. 68 offer of judgment encompassed both the legal and equitable claims presented in Bevier s complaint, and therefore precluded the entry in this action of an order permanently enjoining the Defendants from continued infringement on Bevier s copyright for the Bean 3270 software. We affirm. Generally, we review the grant or denial of injunctive relief for abuse of discretion. Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 939 (4th Cir. 1995). However, where a district court s decision is based solely on a premise and interpretation of the applicable rule of law, our review is de novo. Eisenberg ex rel. Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123, 128 (4th Cir. 1999); see also Jason D.W. by Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 208 (5th Cir. 1998) ( [I]nterpretation of Rule 68 is an issue of law . . . review[ed] de novo. ). Here, the district court based its decision to deny the injunction solely on its interpretation of Rule 68, determining 2 Bevier s acceptance resolved his claim for injunctive relief. Accordingly, the appropriate standard of review is de novo. Rule 68(a) states: More than 10 days before the trial begins, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 10 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment. Fed. R. Civ. P. 68(a). The plain purpose of Rule 68 is to encourage settlement and avoid litigation. 473 U.S. 1, 6 (1985). Marek v. Chesny, In furtherance of these ends, an offer under Rule 68 must be unconditional in order to be effective. Whitcher v. 1991). Thus, excluding Town of Matthews, offers equitable including or injunctive inconsistent with Rule 68. plaintiff to only 136 accept Id. the F.R.D. only 582, 585 monetary relief would (W.D.N.C. damages . . . but be Correspondingly, to allow a [o]ffers of [j]udgment as to monetary damages would cause [an] action to remain pending as to equitable relief purpose of the Rule. a result clearly inconsistent with the Id. Moreover, the fact that an accepted Rule 68 offer of judgment disposes of the entire proceeding between the parties is apparent from its own terms. The final sentence of Rule 68(a) mandates that, when a party has filed the offer, notice of 3 acceptance, and proof of service, [t]he clerk must then enter judgment. This language indicates that a Rule 68 offer of judgment self-executing is [t]he court generally discretion whether or not to enter the judgment. has no Ramming v. Natural Gas Pipeline Co. of Am., 390 F.3d 366, 370-71 (5th Cir. 2004) (collecting cases confirming the self-executing nature of Though rare exceptions to this rule exist, * it is Rule 68). clear that in this instance, the district court had no option but to enter the judgment, effectively ending the litigation. Bevier contends that an offer of judgment may encompass either the entire dispute, or only a portion of the dispute. In support of this contention, he cites Said v. Va. Commonwealth Univ./Med. Coll. of Va., 130 F.R.D. 60 (E.D. Va. 1990). However, Said does not stand for the proposition that an offer of judgment may encompass only a portion of a dispute. In Said, of the offer specifically undetermined accrued costs. whether such costs allowed for the payment The court needed only to determine included attorney s fees. The instant situation would only be analogous were the Defendants offer to * Specifically, in class actions, a district court has an independent duty under Fed. R. Civ. P. 23(e) to review the acceptability of a settlement. Alternatively, a district court will not enter judgment pursuant to a Rule 68 offer of judgment that contemplates illegal activity, regardless of the parties agreement. Perkins v. U.S. W. Commc ns., 138 F.3d 336, 338 n.5 (8th Cir. 1998). 4 have included some undefined reference to injunctive relief. As no such terms were included in the offer, Said does not advance Bevier s argument. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument expressed would not in aid the the materials decisional process. AFFIRMED 5

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