I concur in the result. Defendants’ offer of judgment dated February 29, 2000 did not clearly and unconditionally offer plaintiff his attorneys fees. Athough the defendants offered to stipulate that plaintiff “shall be considered a ‘prevailing part/ solely for the purpose of filing an attorney fee application or motion,” they specifically reserved the right to assert “any other objections they may have to plaintiffs attorneys fee applieation/motion or any part thereof.” This was not an unconditional offer of plaintiffs entitlement to attorneys fees. See Herrington v. County of Sonoma, 12 F.3d 901, 907 (9th Cir.1993).
Defendants’ offer of judgment dated May 17, 2000 (“in the total amount of $200,000, inclusive of costs and reasonable attorneys fees, as determined by the court, incurred to the date of this offer”) was ambiguous. Was it a flat offer of $200,000? Or were costs and reasonable attorneys fees to be “determined by the court”? An offer of judgment under Rule 68 must be clear and unambiguous. Nusom v. COMH Woodburn, Inc., 122 F.3d 830, 833 (9th Cir.1997). This offer was neither.