concurring:
The plaintiffs in this case have appealed only the district court’s denial of their post-judgment motion for attorneys’ fees. Thus, the only question before us is whether the plaintiffs waived the right to seek fees by accepting the defendants’ offer of judgment pursuant to Rule 68. I agree with the majority that we cannot answer this question in the affirmative because, in this circuit, any waiver or limitation of attorneys’ fees under Rule 68 must be clear and unambiguous. See Guerrero v. Cummings, 70 F.3d 1111, 1113 (9th Cir.1995), cert. denied,-U.S.-, 116 S.Ct. 2549, 135 L.Ed.2d 1068 (1996).
The defendants have not appealed from the judgment entered by the district court pursuant to Rule 68. On remand, I assume the defendants could move for relief from judgment on the ground that there was no meeting of the minds to support the Rule 68 agreement. See Radecki v. Amoco Oil Co., 858 F.2d 397, 403 (8th Cir.1988). Although after today’s decision such a motion would likely fail because defendants will now be on notice that they must make explicit that their Rule 68 offers include fees, on the facts of this case, I would be inclined to grant such a motion.