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Robertson v. State

United States District Court, D. Nevada

June 27, 2018

DEVON ROBERTSON, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is made to the Honorable Larry R. Hicks, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR IB 1-4. Before the court is defendants' motion to enforce settlement agreement (ECF No. 58). No. opposition was filed. As more fully set forth below, this court recommends that defendants' motion be granted.

         I. Procedural History

         An early neutral evaluation ("ENE") was held on January 22, 2018 (ECF No. 57). Plaintiff attended the ENE in person with her attorneys, Daniel Kalish, Esq. and Jenny Foley, Esq. of HKM Employment Attorneys LLP. (Id.) The settlement agreement included the following relevant terms which were placed on the record:

1. In settlement of all claims raised in this litigation, the defendants will pay plaintiff the sum of $49, 000, which included the payment of attorneys' fees (Transcript, ECF No. 74 at 5:25-6:16);
2. Counsel would work together to determine whether two checks would be made payable and to whom (Id. at 6:16-7:23);
3. The parties agreed that this is the settlement of a disputed claim and is not to be construed as an admission of liability (Id. at 7:24-13);
4. Plaintiff agreed not to seek employment with any division of the State of Nevada, and the State of Nevada agreed to provide a neutral reference with dates of position held and identify position held (Id. at 8:14-9:9);
5. The parties agreed that this court would retain jurisdiction over the terms of the settlement until the stipulation to dismiss was entered with prejudice (Id. at 9:10-10:6); and
6. The parties agreed to file a stipulation for dismissal on or before February 21, 2018 (Id. at 10:7-19).

         During the finalization of the settlement agreement, counsel for plaintiff notified defendants that they "should not expect a signed settlement agreement from plaintiff." (ECF No. 58, Ex.A). Plaintiffs counsel explained that they were unable to provide any additional information without violating attorney-client confidentiality. (Id.) The present motion to enforce settlement agreement followed two days later.

         No opposition was filed to the motion to enforce. Therefore, the court sua sponte granted an extension of time to March 19, 2018 to file an opposition (ECF No. 60). In response, Jenny Foley, Esq. and HKM Employment Attorneys LLP filed a motion to withdraw as counsel (ECF No. 62).

         The court set a hearing on the motion to withdraw and ordered plaintiff to appear telephonically (ECF No. 63). Daniel Kalish, Esq. and Jenny Foley, Esq. of HKM appeared telephonically and advised the court that they both notified plaintiff of her required appearance at the hearing; however, plaintiff failed to appear either in person or telephonically. (ECF No. 64). Both counsel advised that they had no recent contact with plaintiff. (Id.) The court granted HKM's motion to withdraw, noted that plaintiff would be appearing in pro se from that point forward, and again sua sponte granted plaintiff an additional fifteen days to file an opposition to the motion to enforce. (Id.) The court's minutes were mailed to plaintiff at her last known address. (Id.)

         On April 3, 2018, pro se plaintiff contacted the deputy court clerk by email and stated, "I wish to have the case dismissed. What do you need from me?" (ECF No. 66). The court directed the parties to meet and confer and prepare a stipulation to dismiss this case with prejudice by April 20, 2018. (Id.) No stipulation to dismiss was filed. Rather, plaintiff filed a request for electronic access (ECF No. 67) which was granted (ECF No. 68).

         Thereafter, the court granted pro se plaintiff one final opportunity to June 8, 2018 to file an opposition to the motion to enforce settlement (ECF No. 69). The Clerk was directed to serve plaintiff via email and also by U.S. Postal Service at two separate addresses. (Id.) Plaintiff was cautioned that failure to file an opposition to the motion to enforce constituted a consent to the granting of the motion pursuant to Local Rule 7-2(d). (Id.) Plaintiff was also advised that an opposition would be accepted either by mail or electronically. (Id.) To date, no opposition has been filed.

         II. Legal Analysis and Discussion

         A. Enforcement of the Settlement Agreement

         A district court has the inherent power to enforce a settlement agreement entered into while the litigation is pending before it. In re City of Equities Anaheim, Ltd., 22 F.3d 954, 957 (9th Cir. 1995); Callie v. Near, 829 F.2d 888, 890 (9, h Cir. 1987). This enforcement power extends to oral agreements. Doi v. Halekulani Corp., 276 F.3d 1131, 1138 (9th Cir. 2002); Flick v. Bank of Am., 197 F.Supp.2d 1229, 1231 (D. Nev. 2002) (noting that "public policy favors voluntary settlement") (citing Stroman v. West Coast Grocery Co., 884 F.2d 458, 460-61 (9th Cir. 1989)). However, a district court may not summarily enforce a settlement "where materials facts are in dispute." In re City Equities Anaheim, 22 F.3d at 958.

         To enforce a settlement agreement, two elements must be satisfied. Marks-Foreman v. Reporter Publ'g Co., 12 F.Supp.2d 1089, 1092 (S.D. Cal. 1998). First, the settlement agreement must be complete. Id., citing Maynard v. City of San Jose, 37 F.3d 1396, 1401 (9th Cir. 1994); Doi, 276 F.3d 1137. Second, the settlement agreement must be the result of an agreement of the parties or their authorized representatives concerning the terms of the settlement. Marks-Foreman, 12 F.Supp.2d at 1092, citing Harrop v. Western Airlines, Inc., 550 F.2d 1143, 1144-45 (9th Cir. 1977), Doi, 276 F.3d at 1137-38. Where parties raise objections after the parties agree to a settlement, the court may rightfully deny such objections. Harrop, 550 F.2d at 1144.

         Settlement agreements in Nevada, as in all states, are contracts between the parties. Tumberry v. Pavilion Partners, L.P. v. M.J. Dean Const., Inc., 378 Fed.Appx. 758, 759 (9* Cir. 2010). Therefore, their construction and enforcement are governed by principles of contract law. Abbott v. Okoye, 2010 WL 3220184, *4 (E.D. Cal. Aug. 13, 2010) ("Under Nevada law, the construction and enforcement of a settlement agreement is governed by principles of contract law.")

         In May v. Anderson, 121 Nev. 668, 672-73 (2005) the Nevada Supreme Court considered whether a release constituted a material term of a settlement agreement. In its consideration, the May court detailed what is required to have an enforceable settlement agreement:

Because a settlement agreement is a contract, its construction and enforcement are governed by principles of contract law. Basic contract principles require, for an enforceable contract, an offer and acceptance, meeting of the minds, and consideration- A contract can be formed, however, when the parties have agreed to the material terms, even though the contract's exact language is not finalized until later. In the case of a settlement agreement, a court cannot compel compliance when material terms remain uncertain.
The court must be able to ascertain what is required of the respective parties.

May, 121 Nev. At 672-73 (footnotes omitted) (emphasis added).

         The May court then considered whether the parties agreed to all material terms, specifically whether the parties agreed upon the essential terms of the release. The court found that they did:

The district court found that CCIE made an offer to pay the full policy proceeds in exchange for a general release of all claims and a covenant not to sue. Schwartz had authority to negotiate on behalf of the Mays an accepted the offer in writing. The finalized release document prohibiting the Mays from pursuing any action, not just against the Andersons, but also against Curtis and all other parties who could be liable for the tragic accident, merely reiterates the release terms of the accepted settlement agreement. Regardless of the release document's language, however, since the parties agreed upon the essential terms of the release, i.e., all claims, an enforceable settlement agreement exists. The fact that the Mays refused to sign the proposed draft release document is inconsequential to the enforcement of the documented settlement agreement. The district court was able to determine what was required of the respective parties under the release terms of the settlement agreement and properly compelled compliance by dismissing the Mays' actions. Accordingly, we affirm the district court's judgment.

May, 121 Nev. at 674-75.

         A district court can grant a party's motion to enforce a settlement agreement by entering judgment on the instrument if the agreement is either reduced to a signed writing or entered in the court minutes in the form of an order so long as the settlement agreement's terms are certain. See Resnick v. Valente, 97 Nev. 615, 616, 637 P.2d 1205, 1206 (1981); see also Power Co. v. Henry, 130 Nev.Adv.Op. 21, 321 P.3d 858, 863 (2014).

         The fact that plaintiff refuses to sign the settlement agreement is immaterial to whether a settlement has been reached. "Because a settlement contract is formed when the parties have agreed to its material terms, even though the exact language is finalized later, a party's refusal to later execute a release document after agreeing upon the release's essential terms does not render the settlement agreement invalid." May, 121 Nev. at 670. The issue before the court, therefore, is whether plaintiff and defendants agreed to all the material terms on January 22, 2018.

         The court finds that the settlement reached on January 22, 2018, is enforceable as discussed below. First, the settlement was complete, stated on the record, and the parties and counsel were invited to seek clarification or make revisions. The transcript reveals that the court, the parties, and counsel did just that (ECF No. 74). Marks-Foreman v. Reporter Publ'g. Co., 12 F.Supp.2d 1089, 1092(S.D.Cal 1998) citing Maynard v. City of San Jose, 37F.3d 1396, 1401 (9, hCir. 1994); Doi. 276 F.3d at 1137. Second, the parties represented in open court that they were authorized to enter into the agreement (ECF No. 74). Marks-Foreman, 12 F.Supp.2d at 1092, citing Harrop v. Western Airlines, Inc., 550 F.2d 1143-45 (9th Cir. 1977), Doi, 276 F.3d at 1137-38.

         As with any settlement agreement reached in open court, the final written settlement agreement nearly always contains more detailed recitals and provisions to memorialize the parties' understanding. That fact cannot be used as a basis for reneging on the settlement "when the parties have agreed to the material terms, even though the contract's exact language is not finalized until later." See May v. Anderson, 121 Nev. 668, 672-73 (2005). The question then is, what are considered essential or material terms of the agreement? This requires a case-by-case analysis. Id. at 673.

         Plaintiff filed no opposition to the motion to enforce settlement agreement despite being sua sponte granted many opportunities to do so (ECF No. 60, 64 & 69). Pursuant to LR 7-2(d), plaintiffs failure to file opposition to the motion constitutes her consent to the granting of the motion.

         This court has carefully reviewed the transcript of the January 22, 2018, hearing during which the terms of the settlement were placed on the record (ECF No. 74). The court's standard practice is to admonish the parties and counsel about the importance of putting a settlement on the record, and the court did so here:

THE COURT: The parties, I'm very pleased to report, have reached a settlement of this case. And this is now a very important part of this proceeding because we're going to put the terms of the settlement on the record. And I'm going to ask counsel and the clients - or client representatives, canvass everyone and ask if you understand and agree to the settlement terms.
The reason this process is so important is that it will be what I listen to in the event there's a dispute about what the settlement terms are and the parties come back and ask that the settlement agreement be enforced.
So it really is important. And I know it's late in the day, but I really want to urge counsel and the clients, if you do have a specific question, you are most welcome to stop, ask to speak with your lawyer, or I may - if I say something incorrect, please go ahead and correct me or ask for clarification.

(ECF No. 74 at 3:19-4:10).

         The very first settlement term placed on the record to which all parties and counsel agreed, was that the terms of the settlement placed on the record that day were binding, notwithstanding the fact that they were going to later be put into a written settlement agreement (Id. at 4:24-5:2). The parties and their counsel each specifically agreed that that was their understanding and agreement (Id. at 5:3-24).

         The remaining essential terms of the settlement agreement were recited and agreed to by all parties on the record as follows:

1. In settlement of all claims raised in this litigation, the defendants will pay plaintiff the sum of $49, 000 in settlement of all claims, and that includes the payment of attorneys' fees (Id. at 5:25-6:16);
2. Counsel would work together to determine whether two checks would be made payable and to whom (Id ...

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