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Case: 4:13-cv-00908-CEJ Doc. #: 23 Filed: 09/20/13 Page: 1 of 5 PageID #: 91









Case No. 4:13-CV-908 (CEJ)


This matter is before the Court on defendant’s motion to enforce a settlement

agreement. Plaintiff has filed a memorandum in opposition, and the issues have been

fully briefed.



On May 13, 2013, plaintiff filed this action against defendant pursuant to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the Americans with

Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq. , and the Rehabilitation Act of

1973, §§ 701, et seq. , alleging discrimination based on race, color, gender, and

disability. Defendant filed an answer on June 18, 2013. The Court scheduled a Rule 16

conference and directed the parties to file a joint proposed scheduling order. On July

30, 2013, the Court canceled the Rule 16 conference due to the parties failure to file

a scheduling plan. On July 31, 2013, the Court issued a case management order. On

September 4, 2013, defendant filed the instant motion to enforce settlement

agreement and to recover attorneys’ fees incurred by filing this motion.

In its motion, defendant explains that a joint scheduling plan was not submitted

to the Court because a settlement agreement had been reached between the parties.

The exhibits attached to defendant’s motion show that on July 30, 2013, defendant’s

Case: 4:13-cv-00908-CEJ Doc. #: 23 Filed: 09/20/13 Page: 2 of 5 PageID #: 92

counsel sent plaintiff’s counsel a settlement agreement for signature. On August 5,

2013, plaintiff’s counsel requested that the agreement be changed to reflect that

defendant would respond to future employment inquires with a neutral reference. On

the same day, the agreement was adjusted to reflect this request. On August 6, 2013,

plaintiff’s counsel wrote to defendant’s counsel stating that plaintiff requested that the

wording of paragraph 12 be adjusted. On the same day, defendant’s counsel adjusted

the agreement to reflect plaintiff’s request. On August 7, 2013, plaintiff’s counsel

informed defendant’s counsel that plaintiff no longer wished to sign the agreement and

that he had been discharged as plaintiff’s attorney.

Plaintiff argues that these e-mail exchanges evidence negotiations, but not a

final agreement to settle. Plaintiff contends that he did not review the drafts and did

not approve of them. In reply, defendant submits an affidavit from plaintiff’s former

counsel. The affidavit states that plaintiff “retained [him] to negotiate with Defendant

. . . to reach a settlement in this matter;” that the parties “had reached a Settlement

Agreement to fully settle the claims;” and that plaintiff “agreed to accept the terms of

the Agreement and authorized [him] to accept the terms of the Agreement on his




The Court has the inherent power to enforce a settlement agreement entered

into by the parties in a pending case. Barry v. Barry , 172 F.3d 1011, 1013 (8th Cir.

1999). Settlement agreements are governed by contract law. Chaganti & Associates

v. Nowotny, 470 F.3d 1215, 1221 (8th Cir. 2006). In order for a settlement agreement

to be enforceable, the parties must have reached agreement on the essential terms

of the deal. Sheng v. Starkey Laboratories, Inc., 117 F.3d 1081, 1083 (8th Cir. 1997).

“Settlement agreements that do not expressly resolve ancillary issues can,


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nevertheless, be enforceable.” Id. In determining whether an unresolved issue is

“material” or “ancillary,” the court looks to the intent of the parties. Worthy v.

McKesson Corp. , 756 F.2d 1370, 1372 (8th Cir. 1985). The party requesting

enforcement of a settlement agreement has the burden of proving its claim for relief

by clear, convincing, and satisfactory evidence. Visiting Nurse Assoc., St. Louis v. VNA

Healthcare, Inc., 347 F.3d 1052, 1053 (8th Cir. 2003) (citations omitted).

Upon review of the record, the Court concludes that the parties reached an

enforceable settlement agreement. First, the parties did not submit a joint scheduling

plan as directed by the Court because of their belief that a settlement had been

reached. Second, the parties agreed to the essential terms of the contract,

i.e. that the

plaintiff would dismiss the case in exchange for the defendant’s payment of a certain

amount. This amount has not been disclosed to the Court because of a confidentiality

clause in the settlement agreement. Third, the correspondence between the attorneys

reflect that the parties intended to be bound by this agreement, but that ancillary

issues needed to be addressed before execution,

i.e. the addition of a provision

regarding a neutral reference and the rewording of a sentence. See

Johnson v.

Dobson, 230 F.3d 1363 (8th Cir. 2000) (The “parties entered into a valid, oral, global-

settlement agreement . . . notwithstanding the ancillary adjustment of the payment

schedule); compare to Church Mutual Insurance Co. v. Copenhaven, 2011 WL 704575

(E.D. Ark. Feb. 22, 2011) (Court found that a set of e-mail exchanges between counsel

did not amount to a settlement agreement because a “vital part of the settlement

agreement” was missing). Fourth, plaintiff’s argument that he did not review the

agreement is contradicted by the evidence presented by defendant. The August 6,

2013 email reflects that plaintiff himself requested a specific adjustment, which shows

that plaintiff was given an opportunity to review the agreement. Lastly, plaintiff’s


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former attorney states in an affidavit that plaintiff retained him to negotiate a

settlement and that he did negotiate a settlement which plaintiff authorized. It is well-

established that an attorney may enter into a settlement agreement on behalf of a

client. Harris v. Ark. State Highway & Transp. Dep’t, 437 F.3d 749 (8th Cir. 2006). A

client bears a “heavy burden” when attempting to prove that the attorney was not

authorized to enter into a settlement agreement. Id. at 751. Plaintiff has not provided

any evidence showing that his former attorney did not have authority to enter into the

settlement agreement at issue here.

For the reasons discussed above, the Court concludes that defendant is entitled

to enforcement of the settlement agreement and is entitled to recover the reasonable

costs and attorneys’ fees incurred in filing this motion.


IT IS HEREBY ORDERED that defendant’s motion to enforce settlement

agreement [Doc. # 19] is granted.

IT IS FURTHER ORDERED that plaintiff shall have until September 27, 2013

to (1) execute a release of all claims against the defendant and (2) execute and file a

stipulation for dismissal of this action with prejudice. If plaintiff fails to comply

with this order, the Court will dismiss this action with prejudice and without

further notice to plaintiff.

IT IS FURTHER ORDERED that upon plaintiff’s execution of the release and

stipulation for dismissal, the defendant shall pay to plaintiff the agreed-upon

settlement amount.


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IT IS FURTHER ORDERED that the defendant shall have until October 4,

2013, to submit a verified statement of attorneys’ fees and costs incurred in bringing

the motion to enforce settlement.


Dated this 20th day of September, 2013.