United States District Court, D. Nevada
LINDA PETERSON, et al. Plaintiffs,
KEVIN MIRANDA, et al., Defendants.
Status Check - ECF No. 356) (Rqst for Oral Argument - ECF No.
A. LEEN UNITED STATES MAGISTRATE JUDGE
the court is Plaintiff's Motion for Status Check (ECF No.
356) and Request for Oral Argument (ECF No. 357) which
requests oral argument on the request for status check.
27, 2016, the district judge entered an Order (ECF No. 355)
approving the parties' stipulation and order for
dismissal with prejudice. The stipulation terminated and
closed this case. The motion for status check states that
this case has been settled as to all defendants except for
defendant Mark Robbins who executed a settlement agreement
and agreed to allow the undersigned to fill in the periodic
settlement contribution amount and payment period portions of
the agreement. However, Robbins did not provide the financial
information required to allow the court to determine an
appropriate settlement contribution. The request for status
check points out that the other two defendants who entered
into the same settlement agreement submitted financial
affidavits, and the court filled in the blanks as the parties
agreed. However, Robbins did not respond to counsel for
plaintiff's request to provide the required financial
condition information. Counsel for plaintiff therefore
requests that the court fill in the blanks of the settlement
agreement without consideration of Mr. Robbins' financial
condition and require settlement contributions for a period
not less than 120 months in an amount the court deems fit.
Request for Oral Argument (ECF No. 357) merely states that
the motion for a status check was filed September 26, 2016,
and oral argument is requested “to hear this
matter.” The undersigned conducted a settlement
conference in this case on October 21, 2015. Various
proposals were exchanged and an offer was made and left open
for the defendants to consider. The court conducted multiple
follow up telephonic status conferences on November 12, 13,
and 30, 2015. At the November 30, 2015 status conference, the
parties advised that, although they had continued to discuss
settlement, they were at an impasse. At that time, plaintiffs
were unwilling to settle with less than all of the remaining
defendants, and the case was set for trial on March 8, 2016.
district judge conducted a telephonic calendar call on
February 25, 2016. The minutes of this proceeding indicate
that the parties told Judge Hicks they were still negotiating
a settlement, but needed additional time to discuss the
terms. As a result, the district judge continued the calendar
call until Monday, February 29, 2016. See Minutes of
Proceeding (ECF No. 340).
February 29, 2016 continued telephonic calendar call, the
parties advised Judge Hicks that defendants Ruelas, Robbins
and Miranda had agreed to accept settlement terms as outlined
in the calendar call status memo. Counsel for plaintiffs, Mr.
Cook, requested that he be allowed to contact the
undersigned's chambers with regard to completion of the
payment amounts as outlined in the calendar call status memo.
counsel sent the undersigned a letter March 2, 2016,
enclosing the agreements executed by Ruelas, Robbins and
Zuniga, and financial affidavits executed by Ruelas and
Zuniga. A financial affidavit was not received from Robbins,
and the court has not received one to date. The court
reviewed the executed settlement agreements that were
hand-delivered to chambers, and found that the most
significant portion of the agreements, page 2 of 5 outlining
the consideration for the settlement, had not been provided.
Chambers staff therefore contacted counsel for plaintiff who
then provided the court with the missing pages of the
settlement agreements. The court did not receive a response
from any other counsel or from Mr. Robbins to Mr. Cook's
March 2, 2016 letter which was copied to them.
receiving and reviewing the materials forwarded to chambers
the court sent a letter to counsel for the settling parties
and Mr. Robbins memorializing what had occurred. (A copy of
this letter is attached as Exhibit # to plaintiffs'
request for a status check.) The court reviewed the
settlement agreement signed by defendants Ruelas, Zuniga, and
Robbins, and the financial affidavits submitted by Ruelas and
Zuniga. Pursuant to the parties' agreements that the
court fill in the amount of the payments, the duration of the
payments, and when the payments were to begin, the court
reviewed the affidavits, inserted the settlement
contributions deemed reasonable based on the financial
condition of Zuniga and Ruelas, and gave them sufficient time
to execute the required confession of judgment securing their
settlement contributions, and make arrangements to begin
payments beginning on July 1, 2016, and continuing once a
month until June 1, 2022, a period of six years.
court's letter which was copied to all parties and the
district judge gave counsel until June 24, 2016, to file the
stipulation to dismiss as to defendants Zuniga and Ruelas.
The court also gave counsel for plaintiff and Mr. Robbins
until June 24, 2016, to file a joint status report indicating
how they proposed to resolve this case given Mr. Robbins'
failure to submit the financial affidavit needed to
accomplish the signed settlement agreement.
status report was not filed as directed. Rather, three months
later, counsel for plaintiffs filed a request for a status
check which asserts, among other things, that the undersigned
has authority to fill in the payment amount for Mr.
Robbins' settlement contributions notwithstanding his
failure to provide the required financial status information
to the court. Mr. Robbins, who is pro se, has not responded
to the court's June 6, 2016 letter, plaintiff's
request for a status check, or the motion requesting a
hearing on the request for a status check.
request a status check “to determine whether any other
action need be taken before Robbins' damage payments are
entered by this Court.” The motion for a status check,
and motion for oral argument is not supported by a memorandum
of points and authorities or any legal authority supporting
the request that the court to fill in the blanks on the
settlement agreement executed by counsel for plaintiffs and
Robbins. To the extent plaintiffs are requesting a status
hearing “to determine whether any other action need be
taken before Robbins' payments are entered by this
Court” the court may not, of course, give legal advice
or practice pointer to litigants about how they should
proceed. This is especially true where, as her, the
parties' settlement agreements are not a model of
settlement agreement in this case contains a number of
recitals. Paragraph 1.01 makes it clear that the settlement
agreement between Robbins and the plaintiffs “is only
between Robbins and the Petersons for purposes of settling
any and all claims related to the Lawsuit” . . . and
that the “remaining defendants . . . are not parties to
this Agreement, and this Agreement has no bearing on the
Plaintiffs' ability to pursue the Lawsuit against the
Non-Settling Defendants.” Paragraph 1.03 contains a
provision that “this settlement is reached based on the
truthful representations of the financial statements provided
by Robbins to Petersons' counsel in November 2015.”
However, it does not appear any such financial information
was actually provided. Paragraph 1.03 reserves the right for
the Petersons to repudiate the financial aspect of the
agreement and prove up damages if there are
misrepresentations by Robbins about his financial condition.
The settlement agreement itself incorporates the recitals and
defines them as of terms of the agreement.
consideration section of the agreement, Paragraph 2.02 is
left blank to “be filled in by Magistrate Judge
Leen.” Robbins also agreed to execute a confession of
judgment for the amount the court deemed appropriate based on
his financial condition. Id. The parties agreed to a
stipulation to dismiss the lawsuit upon execution of the
confession of judgment and an affidavit attached as Exhibit 1
to the agreement. Robbins executed the affidavit attached as
Exhibit 2 to the agreement. In it, he admitted “that at
Trial the Petersons will be able to demonstrate through
admissible evidence, facts that are consistent with those
described in Exhibit ‘A' to the Joint Pre Trial