Case 1:17-cv-04557-ER Document 142 Filed 04/14/20 Page 1 of 3
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`TYRONE HOLMES,
`
`Plaintiff,
`
`– against –
`
`APPLE, INC., AMAZON.COM, LLC, and
`CHECKPOINT FLUIDIC SYSTEMS
`INTERNATIONAL, LTD.,
`Defendants.
`
`ORDER
`17 Civ. 4557 (ER)
`
`RAMOS, D.J.:
`Tyrone Holmes, proceeding pro se, brought this lawsuit on June 16, 2017,
`asserting eight causes of action against Defendants Apple Inc. (“Apple”), Amazon.com,
`LLC (“Amazon”), and CheckPoint Fluidic Systems International, Ltd. (“CheckPoint”).
`Doc. 1. On July 23, 2018, the Court granted Apple’s motion for judgment on the
`pleadings and CheckPoint’s motion to dismiss. Doc. 121. With respect to Amazon, the
`Court entered judgment for Amazon on three of the claims against it, granted summary
`judgment in its favor on four others, and, at its request, entered judgment against it on a
`breach of contract claim. Id. Before the Court is Amazon’s motion for an assessment of
`costs pursuant to Federal Rule of Civil Procedure 68. Doc. 131.
`For the following reasons, Amazon’s motion is GRANTED.
`BACKGROUND
`de Court assumes familiarity with its prior opinion in this case, Holmes v. Apple,
`Inc., No. 17 Civ. 4557 (ER), 2018 WL 3542856 (S.D.N.Y. July 23, 2018), as well as with
`its opinion in the related case, Holmes v. City of New York, No. 19 Civ. 1628 (ER), 2020
`WL 918611 (S.D.N.Y. Feb. 26, 2020). de following facts are only those pertinent to
`resolve the motion at hand.
`On December 29, 2017, Amazon offered Holmes an offer of judgment in the
`amount of $2,351.12—the price of the Apple computer and corresponding Apple Care
`
`I.
`
`
`
`

`

`Case 1:17-cv-04557-ER Document 142 Filed 04/14/20 Page 2 of 3
`
`
`
`plan Holmes purchased from the retailer. Doc. 133, Ex. 1. In its letter, Amazon advised
`Holmes that “if [he] were to proceed to trial and recover a judgment less than or equal to
`the amount of this offer, then [he] would be personally liable to Amazon for its legal costs
`from this point forward.” Id. Holmes declined the offer. Id., Ex. 2. de Court
`subsequently entered judgment on the breach of contract claim in favor of Holmes and
`against Amazon, at Amazon’s request, in the amount of $2,351.12. Doc. 121 at 21–22.
`To the Court’s knowledge, Amazon deposited this amount with the Clerk of Court and
`there it remains. Doc. 133, Ex. 3.
`Holmes appealed this Court’s decision to the Second Circuit, and the Second
`Circuit affirmed via summary order on December 9, 2019. See Holmes v. Apple, Inc., No.
`18 Civ. 2492, 2019 WL 6696939 (2d Cir. Dec. 9, 2019). de Second Circuit also
`remanded the case to this Court to give Amazon the opportunity to move for costs
`pursuant to Federal Rule of Civil Procedure 68(d), since Holmes had previously rejected
`an offer of judgment for $2,351.12 and subsequently received a judgment in that amount.
`Id. at*4. de Second Circuit found that “Amazon’s offer of $2,351.12 provided complete
`relief on Holmes’s breach of contract claims.” Id.
`On February 3, 2020, Amazon filed the instant motion for an assessment of costs.
`Doc. 131.
`II.
`DISCUSSION
`Rule 68 provides in relevant part that:
`[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 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.
`Fed. R. Civ. P. 68(a), (d). “Rule 68 is a cost-shifting rule designed to encourage
`settlements without the burdens of additional litigation.” Reiter v. MTA N.Y.C. Transit
`Auth., 457 F.3d 224, 229 (2d Cir. 2006). “[A]ll costs properly awardable in an action are
`
`
`
`2
`
`

`

`Case 1:17-cv-04557-ER Document 142 Filed 04/14/20 Page 3 of 3
`
`
`
`to be considered within the scope of Rule 68 ‘costs.’”1 Marek v. Chesny, 473 U.S. 1, 9
`(1985).
`Rule 68’s language is mandatory, stating that “the offeree must pay the costs
`incurred.” Fed. R. Civ. P 68(d) (emphasis added). In his opposition, Holmes does not
`dispute that Amazon made him an offer of judgment, that he rejected the offer, and that
`judgment was later entered in his favor in precisely the same amount. He seeks, instead,
`to relitigate the underlying facts of this case and its appeal with arguments that this Court
`has heard and rejected numerous times. dis is not the appropriate vehicle for such
`contentions. To the extent Holmes argues that Amazon’s offer was a sham, this
`conclusion has been foreclosed by the Second Circuit’s finding that “Amazon’s offer of
`$2,351.12 provided complete relief on Holmes’s breach of contract claims.” 2019 WL
`6696939, at *4. de Court will therefore grant Amazon’s motion for assessment of costs.
`III. CONCLUSION
`For the foregoing reasons, Amazon’s motion is GRANTED. Amazon is directed
`to submit a bill of costs within ten days. de Clerk of Court is respectfully directed to
`terminate the motion, Doc. 131.
`
`It is SO ORDERED.
`
`Dated: April 14, 2020
`New York, New York
`
`EDGARDO RAMOS, U.S.D.J.
`
`
`1 Amazon’s motion is silent as to exactly what costs it intends to seek. de Court notes, however, that
`because attorney’s fees are generally not available in actions for contract claims (absent a contractual
`obligation to the contrary), see Singer v. Xipto Inc., 852 F. Supp. 2d 416, 426–27 (S.D.N.Y. Mar. 30, 2012)
`(collecting cases), they would likely not be appropriate here.
`
`
`
`3
`
`