USDC IN/ND case 4:15-cv-00004-RLM-PRC document 18 filed 07/20/15 page 1 of 5

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,
)
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.
)

Case No: 4:15-cv-00004-RLM-PRC

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 Judgment tendered 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 Defendants sent a document entitled Offer of
Judgment to undersigned counsel via email offering to allow judgment be entered against
the Defendants in exchange for Ten Thousand and One Dollars ($10,001.00) plus
reasonable attorneys fees and costs to be paid to the Plaintiff. See Exhibit A (attached
hereto).
2. While that document claimed to be made pursuant to Fed. 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 2 of 5

if accepted, be confidential in nature and liquidated damages assessed should that
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
against a claim may serve on an opposing party an offer to allow
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, plus proof of service. The clerk must then enter
judgment
(d) If the judgment that the offeree finally obtains is not more
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.,
3010 WL 3037365, 3 (S.D. Ind. 2010) (stating that [f]iling essentially transforms a
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
must therefore be public. See Chambers v. Midwest Indep. Transmission Sys. 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, the Defendants here appear only to be willing to have a judgement entered
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 3 of 5

R. 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, the Defendants offer appears to be an attempt by the Defendants to reap the
benefits of private settlement while saddling the Plaintiff with the binding effects of a Rule
68 offer and restraining his First Amendment rights with an amorphous confidentiality
requirement and a liquidated damages provision.
8. The language of the rule makes clear that there is substantial risk associated with the
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
burden of a confidentiality provision is so vague that the Plaintiff is left guessing at the
ambiguities included therein. See Webb, 147 F.3d at 621 (7th Cir. 1998) (stating that
[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 a way that has the flavor of heads I 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 4 of 5

10. 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
has suffered any damage. See Exhibit A (attached hereto). However, [t]he Seventh
Circuithas clearly indicated that where a plaintiff accepts an Offer of Judgment and
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, the Plaintiff respectfully requests this Court strike or otherwise invalidate the
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. Barnhart

Scott L. Barnhart, #25474-82
Keffer Barnhart LLP

USDC IN/ND case 4:15-cv-00004-RLM-PRC document 18 filed 07/20/15 page 5 of 5

CERTIFICATE 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. Barnhart
Scott L. Barnhart, #25474-82
Keffer Barnhart LLP
230 East Ohio Street, Suite 600
Indianapolis, Indiana 46204
Email: Barnhart@KBindy.com
Phone: (317) 857-0160
Fax: (855) 641-5311

USDC IN/ND case 4:15-cv-00004-RLM-PRC document 20 filed 07/21/15 page 1 of 1

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,
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.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No: 4:15-cv-00004-RLM-PRC

APPENDIX TO D.E. 18
Comes now the Plaintiff, Oyindamola Oluwatimi, by and through counsel of record, Scott
L. Barnhart of Keffer Barnhart LLP, and hereby files his appendix to D.E. 18. This Appendix
includes the following document:
1. Exhibit A Offer of Judgment sent via email on or about July 9, 2015.
Respectfully Submitted,
/s/ Scott L. Barnhart
Scott 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. Barnhart
Scott 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 20-1 filed 07/21/15 page 1 of 2

USDC IN/ND case 4:15-cv-00004-RLM-PRC document 20-1 filed 07/21/15 page 2 of 2

USDC IN/ND case 4:15-cv-00004-RLM-PRC document 21 filed 07/24/15 page 1 of 2

UNITED 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,
)
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
)
)

Case No: 4:15-cv-00004-RLM-PRC

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 2 of 2

3. 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, IN 46219
Phone: (317) 261-1885
Fax: (317) 261-1887

USDC IN/ND case 4:15-cv-00004-RLM-PRC document 22 filed 07/29/15 page 1 of 3

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,
)
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.
)

Case No: 4:15-cv-00004-RLM-PRC

REPLY IN SUPPORT OF 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 replies in support of his Motion to Strike
or Otherwise Invalidate Offer of Judgment. In support of said Reply, the Plaintiff states as
follows:
1. First, the Defendants response offers no substantive argument or legal citations that their
offer should be considered as made pursuant to Fed. R. Civ. P. 68. Therefore, the
Defendants have waived that argument and have conceded that the Offer was private in
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, Defendants lone argument that Plaintiffs motion is moot is without merit.
Plaintiffs Motion to Strike or otherwise Invalidate Offer of Judgment was not made

USDC IN/ND case 4:15-cv-00004-RLM-PRC document 22 filed 07/29/15 page 2 of 3

moot by the Plaintiffs denial of the Defendants private settlement offer. As Rule 68
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 obligations under Rule 68.
Plaintiff attaching the Defendants offer to this Court affords the Court with the best
evidence available for it to make its determination on this issue.
WHEREFORE, the Plaintiff respectfully requests this Court strike or otherwise invalidate the
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. Barnhart

Scott L. Barnhart, #25474-82
Keffer Barnhart LLP

USDC IN/ND case 4:15-cv-00004-RLM-PRC document 22 filed 07/29/15 page 3 of 3

CERTIFICATE 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. Barnhart
Scott L. Barnhart, #25474-82
Keffer Barnhart LLP
230 East Ohio Street, Suite 600
Indianapolis, Indiana 46204
Email: Barnhart@KBindy.com
Phone: (317) 857-0160
Fax: (855) 641-5311