Mendoza v. Preco, Inc., Case No. 17-2565-DDC-GEB

• Decision Date: 17 May 2019
• Docket Number: Case No. 17-2565-DDC-GEB
• Parties: DAVID J. MENDOZA, Plaintiff, v. PRECO, INC., Defendant.
• Court: U.S. District Court — District of Kansas

DAVID J. MENDOZA, Plaintiff, v. PRECO, INC., Defendant.

Case No. 17-2565-DDC-GEB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

May 17, 2019

MEMORANDUM AND ORDER

This matter comes before the court on defendant Preco, Inc.'s Renewed Motion to Enforce Settlement Agreement (Doc. 46). Pro se plaintiff David J. Mendoza has not filed a Response, and the time for doing so has passed. See D. Kan. Rule 6.1.¹ Preco's motion requested an evidentiary hearing to present evidence on one aspect of its motion—i.e., on whether Mr. Mendoza conferred authority to his former counsel to settle his claims. The court conducted an evidentiary hearing on this issue on May 8, 2019. Preco's motion also requested that—if the court concluded the parties had entered an enforceable settlement agreement—the court enter a fee award against Mr. Mendoza. On review of Preco's papers and the facts in evidence, the court grants Preco's motion in part and denies it in part. The court holds the partiesentered an enforceable settlement agreement on May 30, 2018, but the court declines to enter a fee award against Mr. Mendoza. The court explains the reasons for its decision, below.

I. Facts

The court bases the following findings of fact based on matters established by the filings on this motion, as well as evidence presented at the evidentiary hearing.

A. Mr. Mendoza's Lawsuit and Preco's First Motion to Enforce Settlement (Doc. 36)

Mr. Mendoza worked as a Shipping/Receiving clerk in Preco's office and warehouse in Lenexa, Kansas. In September 2017, Mr. Mendoza filed a lawsuit against Preco, alleging civil rights violations based on Preco's purported racial discrimination, harassment, and retaliation during his employment. Doc. 1. Preco filed an Answer. Doc. 5. And, the parties began discovery, which included Preco taking Mr. Mendoza's deposition. See, e.g., Docs. 17, 21, & 25. Preco's motion asserts Mr. Mendoza admitted to committing perjury twice during his deposition on May 23, 2018. Doc. 25; Doc. 47 at 2-3 n.1. Preco's motion contends Mr. Mendoza did not disclose his wife's last name and address in response to Preco's interrogatories. Id. And, Preco alleges, Mr. Mendoza testified that he left a later job voluntarily when, in reality, Mr. Mendoza was fired from that position. Id.

On May 29, 2018, Mr. Mendoza's counsel, Kirk Holman, left a voicemail for Preco's counsel, Robert Sheffield, with a request for a return phone call. Doc. 47-2 at 2. Mr. Sheffield returned Mr. Holman's phone call that day. Id. During that call, Mr. Holman said he believed dismissing Mr. Mendoza's case would be in everyone's best interest and asked Mr. Sheffield if Preco would agree to a dismissal of the case without prejudice. Id.

Later that day, Mr. Sheffield sent Mr. Holman an email. Doc. 47-3 at 1-2. Mr. Sheffield's email indicated that dismissal without prejudice would not provide Preco withsufficient finality given the limitations period for some of Mr. Mendoza's claims and his ability to re-file if he so chose. Id. Mr. Sheffield continued:

Therefore, I can confirm that Preco is willing to stipulate to a dismissal with prejudice, each party to bear its own costs. As part of the dismissal, Preco is willing to forgo filing any motions for sanctions related to your client's admitted perjury in exchange for a full waiver and release of all claims by your client. In other words - let's set this up for both parties to move on and put the case behind them for good. We would be happy to draw up an agreement reflecting these terms. Thanks, and please let me know.

Id. On May 30, 2018, Mr. Holman replied in an email, "Well done, Robert. Please send over the Proposed Release." Id. at 1.

In June 2018, the parties exchanged draft settlement agreements. And, on July 2, 2018, Mr. Sheffield sent Mr. Holman a final agreement. Doc. 47-11 at 3. On July 9, 2018, Mr. Sheffield sent an email to Mr. Holman checking whether plaintiff had signed the agreement. Id. Mr. Holman responded the same day, "It's been sent to him for signature. We are both in trial this week. I am fine with filing the stipulation if you are fine doing so." Id. at 2.

Mr. Sheffield waited to respond until the following week, after Mr. Holman's trial had concluded. On July 17, 2018, Mr. Sheffield responded to Mr. Holman: "Thanks, Kirk. Have you received the signed agreement from Mr. Mendoza? In any event, I agree with you about getting the dismissal filed. It is attached here. You have my approval to file." Id.

Later in the day on July 17, 2018, Mr. Holman replied to Mr. Sheffield: "Sorry, Robert. Was in trial last week but learned Friday [i.e., July 13] that apparently, he now intends to sue me for malpractice and continue with the litigation against your client. I am going to file a Motion to Withdraw. We sent a courier out for him to sign and learned all of this." Id. In context, it is evident that the "he" in Mr. Holman's July 17 email referred to Mr. Mendoza.

Mr. Mendoza's attorneys—including Mr. Holman—withdrew from their representation shortly after defendant served its Motion to Enforce Settlement on July 27, 2018. See Doc. 38 (Motion to Withdraw); Doc. 39 (Order granting Motion to Withdraw). Mr. Mendoza has proceeded pro se since then.

Mr. Mendoza filed no response to Preco's motion after the court extended his deadline. See Doc. 43. The court thus ruled on Preco's Motion to Enforce Settlement Agreement. In its December 20, 2018, Memorandum and Order, the court held that it could not grant Preco's motion. Doc. 44. In short, the court could not discern whether Mr. Holman—Mr. Mendoza's former attorney—had acted with actual or apparent authority when he entered into the settlement agreement with Preco. Doc. 44. The court thus directed Preco to contact the court to schedule an evidentiary hearing to demonstrate that Mr. Mendoza had conferred authority on his counsel to settle the case.

B. Preco's Renewed Motion to Enforce Settlement (Doc. 46) and Evidentiary Hearing on Mr. Holman's Actual Authority

On March 7, 2019, Preco filed a Renewed Motion to Enforce Settlement Agreement (Doc. 46) and requested an evidentiary hearing on the narrow issue whether Mr. Mendoza conferred Mr. Holman with authority to settle the case. Mr. Mendoza did not respond to defendant's proposed hearing dates. Doc. 48. So, on April 17, 2019, the court set an evidentiary hearing for three weeks later: May 8, 2019, at 9:00 a.m. Id. The court sent Mr. Mendoza a copy of the Order (Doc. 48) about the hearing date both by regular and certified mail. Id. Preco sought to move the hearing date (Doc. 49), and Preco's counsel sent Mr. Mendoza an email about the original hearing date and the proposed new dates. But, the court denied Preco's motion, and the court mailed Mr. Mendoza a copy of the Order (Doc. 50) stating that the hearing would proceed as scheduled on May 8, 2019, at 9:00 a.m.

At 7:33 a.m. on May 8, the court's Deputy Clerk received an ex parte message from Mr. Mendoza's email account. This email asserted that Mr. Mendoza would not attend the hearing because he could not leave work. The court shared a copy of the email with defense counsel at the hearing. And, the court liberally construed the email as a motion to continue the hearing. But, the court denied the motion because Mr. Mendoza had sufficient notice of the hearing. And, the court concluded, Mr. Mendoza could have filed a proper motion to continue well before the hearing rather than send the Deputy Clerk an email less than two hours before the hearing.

The court permitted Preco to present evidence on the actual authority issue. Preco called Mr. Holman—Mr. Mendoza's previous attorney—to testify. The court's findings of fact based on Mr. Holman's testimony are as follows:

• In a call between Mr. Sheffield and Mr. Holman on May 29, 2018, Mr. Holman offered that the case should be dismissed without prejudice and that each party should bear its own costs.

• Later that day, Mr. Holman received an email from Mr. Sheffield. The email proposed Mr. Mendoza would dismiss his claims with prejudice and Preco would forego pursuing sanctions against Mr. Mendoza for purported perjury during discovery in exchange for Mr. Mendoza's full waiver and release. Also, each party would bear its own costs.

• Mr. Holman communicated with Mr. Mendoza about Preco's offer before he sent Mr. Sheffield an email on May 30, 2018. Mr. Mendoza authorized Mr. Holman to accept the offer from Preco.

• On May 30, 2018, Mr. Holman sent Mr. Sheffield an email stating "Well done, Robert. Please send over the Proposed Release." Mr. Holman testified that this email indicated his acceptance of Mr. Sheffield's offer proposed in the May 29, 2018, email.

II. Legal Standard

District courts may "summarily enforce a settlement agreement" reached by the parties. United States v. Hardage, 982 F.2d 1491, 1496 (10th Cir. 1993). Because settlement agreements are contracts, state contract law governs issues of formation, construction, and enforceability. United States v. McCall, 235 F.3d 1211, 1215 (10th Cir. 2000). In Kansas, "'the law of theforum applies unless it is expressly shown that a different law governs, and in case of doubt, the law of the forum is preferred.'" Mendy v. AAA Ins., No. 17-2322-DDC-GLR, 2017 WL 4422648, at *6 (D. Kan. Oct. 5, 2017) (quoting Brenner v. Oppenheimer & Co., 44 P.3d 364, 376 (Kan. 2002)) (further citation omitted). Preco contends Kansas law applies, and Mr. Mendoza has made no showing in opposition. Also, the court concludes the parties have not presented sufficient facts for the court to determine the choice of law question independently. The court thus defaults to applying Kansas law.

"'It is an elemental rule that [Kansas] law favors compromise and settlement of disputes, and generally, in the absence of bad faith or fraud, when parties enter into an agreement settling and adjusting a dispute, neither party is permitted to repudiate it.'" Earthmovers, Inc. v. Massey, 07-4134-SAC, 2008 WL 1924938, at...