Eswarappa v. Shed Inc/kid's Club

• Decision Date: 18 February 2010
• Docket Number: Civil Action No. 06-11169-RBC.
• Citation: 685 F.Supp.2d 229
• Parties: Sunita ESWARAPPA, Plaintiff, v. SHED INC/KID'S CLUB, Defendant.
• Court: U.S. District Court — District of Massachusetts

685 F.Supp.2d 229

Sunita ESWARAPPA, Plaintiff,

v.SHED INC/KID'S CLUB, Defendant.

Civil Action No. 06-11169-RBC.

United States District Court, D. Massachusetts.

Decided: Feb. 18, 2010.

Nicholas J. DeNitto, Nicholas J. DeNitto, P.C., North Andover, MA, for Plaintiff.

Joseph L. Edwards, Jr., Prince, Lobel Glovsky & Tye LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON MOTION OF DEFENDANT SHED INC. /KID'S CLUB TO ENFORCE SETTLEMENT AGREEMENT (# 110)

CODLINGS, United States Magistrate Judge.

I. Introduction

In her complaint, plaintiff Sunita Eswarappa ("Eswarappa") alleges claims of discrimination and retaliation based on age and race against defendant SHED Inc./ Kid's Club ("SHED"). Following more than three years of litigation, in mid-November, 2009, the parties requested that the case be referred to the district court's ADR program for mediation to be held as soon as possible, but in no event later than December 31, 2009. (See Electronic Court Note dated 11/12/2009) The case was assigned to Magistrate Judge Marianne B Bowler who set the mediation for December 14, 2009 and ordered that "[a]ll parties and trial counsel are REQUIRED to attend and must have full binding settlement authority." (# 107, emphasis in original) The mediation was rescheduled to December 17, 2009 and ultimately held on that date. At the conclusion of the mediation. Magistrate Judge Bowler reported the case as settled (# 108), and on December 22, 2009, the Court entered the standard Order Re: Settlement (# 109) directing the parties to file the papers necessary to remove the case from the Court's docket on or before the close of business on February 18, 2010.

On December 23, 2009, Eswarappa's attorney faxed a letter to Magistrate Judge Bowler, cc'd to SHED's attorney, stating that the plaintiff was revoking her acceptance of the settlement. (# 110, Exh. 4) On December 31, 2009, SHED filed a motion to enforce the settlement agreement together witha supporting memorandum and exhibits. (# 110) On January 13, 2010 Eswarappa filed a memorandum in opposition to the defendant's motion (# 112) as well as an affidavit of the plaintiff (# 113) and an affidavit of plaintiffs counsel (# 114). SHED was granted leave to submit a reply which was filed on January 19 2010. (# 116) On January 25, 2010, a hearing was held on the motion to enforce and at this juncture, the motion stands ready for decision.

II. The Background Facts

The manner in which the December 17, 2009 mediation was conducted is undisputed. Confidential mediation briefs were submitted in advance of the mediation. At the outset of the session, each party presented an initial statement to the other party and Judge Bowler. (# 110 at 3 H 12;

# 112 at 5 ¶ 8) Thereafter throughout the course of the day Judge Bowler met privately with each party, and relayed numerous settlement demands/offers/counteroffers between the parties. (# 110 at 3 ¶¶ 12, 13; # 112 at 5 ¶ 10) According to plaintiff's attorney:

At various times when Judge Bowler met with [Eswarappa] and her attorney, she related her assessment of [Eswarappa's] case and pointed out the uncertainty of jury trials in such cases and the various probable outcomes and provided [Eswarappa] with the opportunity to make a statement, which she exercised.

Affidavit of Nicholas J. DeNitto #114

¶11.

Late in the afternoon. Judge Bowler presented the terms of SHED's final offer ¹ to Eswarappa and asked if she accepted the offer. (#114 11¶¶16, 17) Eswarappa responded affirmatively. (#114 ¶17) Judge Bowler then invited SHED's representative and its attorney to join Eswarappa and her attorney in the courtroom, where, before all the interested parties, Judge Bowler repeated the terms of the offer that had been accepted. (# 110 at 4 ¶ 14;

# 114 ¶ 18) Counsel and the parties agreed that the terms of the settlement as recited by Judge Bowler were acceptable. According to the plaintiff, "[a]t this juncture the parties concluded the case was settled based on [Eswarappa's] acceptance of the money offer and method of payment." (# 112 at 8 ¶21 (emphasis in original); #114 ¶ 19 (emphasis in original)) Having established an agreement between the parties, Judge Bowler reported on December 17th that the case was settled. (# 108)

On December 22, 2009, SHED's counsel e-mailed a proposed Settlement Agreement and Release (# 112, Exh. A) and a Stipulation of Dismissal (# 112, Exh. B) to Eswarappa's attorney. (# 112 at 8 H 24) As noted earlier, the next day the plaintiff's counsel faxed a letter to Judge Bowler wherein Eswarappa notified the court that she "hereby revokes her acceptance of the settlement offer of defendant. Shed Inc./ Kid's Club... [made] during the mediation on December 17, 2009." (# 112, Exh. C) In turn, SHED filed its motion to enforce the settlement.

III. Discussion

Eswarappa advances several arguments in opposition to SHED's motion which shall be addressed seriatim. The plaintiff does not dispute that she, in fact, accepted the terms of SHED's settlement offer on December 17, 2009. Rather, Eswarappa takes the position that she has the legal right to revoke that acceptance.

At the outset, it is beyond cavil "that public policy strongly favors encouraging voluntary settlement of employment discrimination claims." E.E.O.C. v. Astra U.S.A., Inc., 94 F.3d 738, 744 (1 Cir., 1996) (citing Carson v. American Brands, Inc. 450 U.S. 79, 88 n. 14, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981) ("In enacting Title VII, Congress expressed a strong preference for encouraging voluntary settlement of employment discrimination claims.")) When Eswarappa purportedly revoked the settlement agreement, it had yet to be reduced to writing; at least the defendant plainly anticipated the production of a written document as evidenced by SHED's attorney e-mailing a proposed draft of the settlement and a release to plaintiff's counsel. In any event, an oral settlement agreement "is permissible." F.A.C., Inc. V. Cooperativa de Seguros de Vida de Puerto Rico, 449 F.3d 185, 187 (1 Cir.) (citing Quint v. A.E. Staley Mfg. Co., 246 F.3d 11, 15 (1 Cir., 2001) ("Quint's argument, that when the parties to an agreement contemplate a written document will memorialize a contract, there can be no agreement until the document is executed, is a radical and doomed departure from the principles of contract law."), cert, denied, 535 U.S. 1023, 122 S.Ct. 1618, 152 L.Ed.2d 631 (2002)), cert. denied, 549 U.S. 1089, 127 S.Ct. 728, 166 L.Ed.2d 583 (2006).

The First Circuit has explained that:

A party to a settlement agreement may seek to enforce the agreement's terms when the other party reneges.... If, however, the settlement collapses before the original suit is dismissed, the party who seeks to keep the settlement intact may file a motion for enforcement. See United States v. Hardage, 982 F.2d 1491, 1496 (10th Cir.1993) ("A trial court has the power to summarily enforce a settlement agreement entered into by the litigants while the litigation is pending before it.") (citations omitted); Mathewson Corp. v. Allied Marine Indus., Inc., 827 F.2d 850, 852-53 (1st Cir.1987) (similar). In a federal court, such a motion—at least when the underlying cause of action is federal in nature—is determined in accordance with federal law. See Michaud v. Michaud, 932 F.2d 77, 80 n. 3 (1st Cir.1991); Fennell v. TLB Kent Co., 865 F.2d 498, 501 (2d Cir.1989); Mid-South Towing Co. v. Har-Win, Inc., 733 F.2d 386, 389 (5th Cir.1984); Gamewell Mfg., Inc. v. HVAC Supply, Inc., 715 F.2d 112, 115-16 (4th Cir. 1983).

Malave v. Carney Hosp., 170 F.3d 217, 220 (1 Cir., 1999); see also Kinan v. Cohen, 268 F.3d 27, 32 (1 Cir., 2001); Quint v. A.E. Staley Mfg. Co., 246 F.3d 11, 14 (1 Cir., 2001), cert, denied, 535 U.S. 1023, 122 S.Ct. 1618, 152 L.Ed.2d 631 (2002); Negron Gaztambide v. Hernandez Torres, 145 F.3d 410, 415 (1 Cir., 1998), cert. denied, 525 U.S. 1149, 119 S.Ct. 1049, 143 L.Ed.2d 55 (1999).

Thus, because this case has not been dismissed, the Court has the power to enforce the settlement agreement. Quint, 246 F.3d at 14.

In her opposition Eswarappa argues in various ways, i.e., the "parties did not agree beforehand to be bound by the mediation conference decision ²" (#113 ¶ 4), "I never agreed or waived my right to revoke the mediation outcome" (# 113 ¶ 6) and "I was not informed that once I agreed to accept SHED's offer, I could not change my mind" (#113 ¶ 7), that she did not believe the settlement agreement to be final. The plaintiff does not assert that she negotiated for the right to repudiate as part of the settlement agreement, nor has she cited any case law to support her apparent assumption that a right to revoke is somehow an integral part of every settlement agreement. Also, properly, Eswarappa does not contend that, as a matter of law, she should have been afforded "a period of at least 7 days following the execution of such an agreement [waiving a right or claim under the ADEA], [within which she] may revoke the agreement." Title 29 U.S.C. § 626(f)(1)(G). Since an action had been filed in court alleging age discrimination under 29 U.S.C. § 623, only "subparagraphs (A) through (E) of paragraph (1) [of 29 U.S.C. § 626]" are applicable. See Title 29 U.S.C. § 626(f)(2)(A); see also Powell v. Omnicom, 497 F.3d 124, 131-2 (2 Cir., 2007); Gomez v. AlliedSignal, Inc., 172 F.3d 62 (Table, Text in Westlaw), 1999 WL 89040, *2 (10 Cir., Feb. 23, 1999) (unpubhshed disposition).³

That the defendant included such a seven-day right to revoke in its proposed written settlement agreement is not determinative; the plaintiff cannot bootstrap that provision into the oral settlement agreement. Eswarappa never signed SHED's draft agreement so the provision constitutes no more than a proposed additional term that was rejected. Defense counsel's protestations about the purported intent of that clause notwithstanding, it would be a different story had the plaintiff executed defendant's proposed settlement agreement.

The bottom line is,...