Mims v. Bogan (MAG+)(JOINT ASSIGN)

Filing 90

OPINION. Signed by Honorable Judge Myron H. Thompson on 7/30/2015. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
RICHARD MIMS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
D. BOGAN,
Defendant.

CIVIL ACTION NO.
1:12cv887-MHT
(WO)

OPINION
Plaintiff Richard Mims brought this action against
defendant D. Bogan asserting unlawful arrest and use of
excessive force in violation of the Fourth Amendment of
the United States Constitution as well as battery in
violation of Alabama law.

Subject-matter jurisdiction

is proper under 28 U.S.C. §§ 1331 (federal question),
1343(a)(3)

(civil

rights),

and

1367

(supplemental).

The case is now before the court on Mims’s motion to
set

aside

the

dismissal

and

reinstate

the

Bogan’s motion to enforce the settlement.

case

and

A hearing

was held on both motions on July 29, 2015.
to

set

aside

will

be

granted,

the

case

The motion
will

be

reopened, and the motion to enforce the settlement will
be granted as well.

I. BACKGROUND
On June 2, 2015, Bogan’s counsel informed the court
that the parties in this case had reached a settlement
agreement.

Based

on

this

reported

settlement,

the

court entered a judgment dismissing the case but also
providing, among other things, that the parties had 49
days to file a motion to have the dismissal set aside
and

the

case

reinstated

for

a

determination

as

to

whether there was, in fact, a settlement and, if so,
for its enforcement.

On July 8, 2015, Mims filed a

motion to set aside the judgment, claiming that there
was no settlement.

Bogan disagreed that there was no

settlement

moved

and

has

to

2

enforce

the

settlement

agreement.

He submitted email exchanges as evidence.

The emails at issue show the following:
On May 21, Mims’s counsel wrote that Mims
would not go any lower than $ 16,000, but that
his counsel would be willing to reduce attorney
fees

by

$ 2,000,

thereby

reducing

the

settlement offer to $ 14,000. On the same day,
Bogan’s counsel wrote back, saying that “[t]he
offer

of

Mr.

Mims

to

settle

the

case

for

$ 14,000.000 is accepted.” Email from Joe Adams
to Leroy Maxwell (doc. no. 86-2) at 1.

Bogan’s

counsel then said he would draft the settlement
paperwork and would send it to Mims.
On June 1, Mims’s counsel wrote to Bogan’s
counsel that “I do not have a problem with you
notifying
settlement

the

Judge

agreement

that
in

we

reached

principle,

execution of release forms.”

3

have

a

pending

Email from Leroy

Maxwell to W. Allen Sheehan (doc. no. 86-5) at
1.
Over

the

next

month,

the

parties

discussed

the

settlement agreement, to which Bogan proposed adding
language that would expedite the dispersal of funds to
Mims.

Bogan had already sent a settlement agreement to

Mims, who had not yet signed it.

When Bogan sent the

new version, Mims’s counsel wrote back, asking if he
could arrange for Mims to come to defense counsel’s
office to sign the new agreement.

Mims never showed

up, and the agreement has not been signed.

II. DISCUSSION
As a threshold, both parties agree that the case
should be reopened.
the motion to reopen.

The court agrees and will grant
However, the parties disagree

what should occur after the case is reopened.

Mims

argues, without providing any detail, that the parties
never reached a settlement.
4

Bogan responds that the

emails show a binding settlement agreement. The court
agrees with Bogan and finds that the parties made a
binding settlement agreement.
A

district

enforce

a

litigants
court.
260

court

ordinarily

settlement
while

has

agreement

litigation

is

the

entered

pending

power

to

into

by

before

that

Mass. Cas. Ins. Co. v. Forman, 469 F.2d 259,

(5th

Cir.

1972)

curiam).*

(per

In

determining

whether a valid, enforceable settlement agreement has
been

reached

by

the

parties,

federal

courts

differed on the source of law to apply.

have

Courts have

decided, on some occasions, that federal common law
governs,
Works,

see,

Inc.,

e.g.,
769

Eatmon

F.2d

v.

1503,

Bristol
1516

Steel

(11th

Cir.

&

Iron
1985)

(citing Fulgence v. J. Ray McDermott & Co., 662 F.2d

*

In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit Court of
Appeals adopted as binding precedent all of the
decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
5

1207, 1209 (5th Cir. 1981)), and, on other occasions,
that state law governs, see, e.g., Resnick v. Uccello
Immobilien GMBH, Inc., 227 F.3d 1347, 1350 (11th Cir.
2000).

See also Hogan v. Allstate Beverage Co., Inc.,

821 F.Supp.2d 1274, 1279 (M.D. Ala. 2011) (Thompson,
J.) (discussing the differing approaches).

In this

case, the court need not resolve which body of law
applies, because a settlement was reached under basic,
hornbook contract law, regardless as to whether it is
viewed as federal or state.
A

valid

contract

requires

“an

offer

and

an

acceptance, consideration, and mutual assent to terms
essential to the formation of a contract.”

Shaffer v.

Regions Fin. Corp., 29 So. 3d 872 (Ala. 2009).
other

words,

any

and

all

terms

essential

to

contract must be both defined and agreed-upon.

In
the
See

Hogan, 821 F. Supp. 2d at 1280 (citing Browning v.
Peyton, 918 F.2d 1516, 1521 (11th Cir. 1990)).

“An

agreement, even an oral one, will not automatically be
6

considered

non-binding

merely

because

formal document was envisioned.”

a

later,

more

See Samson Plastic

Conduit & Pipe Corp. v. Battenfeld Extrusionstechnik
GMBH, 718 F. Supp. 886, 892 (M.D. Ala. 1989) (Dubina,
J.); see also Restatement (Second) of Contracts § 27
(1981)

(“Manifestations

of

assent

that

are

in

themselves sufficient to conclude a contract will not
be prevented from so operating by the fact that the
parties also manifest an intention to prepare and adopt
a written memorial thereof; but the circumstances may
show

that

the

agreements

are

preliminary

negotiations.”).
“[I]t

is

well

settled

that

where

there

is

uncertainty and ambiguity in a contract, it is the duty
of the court to construe the contract so as to express
the intent of the parties.”
Dynamics,

Inc.,

20

So.

3d

Kelmore, LLC v. Alabama
783,

791

(Ala.

2009)

(internal quotation marks omitted).

“[I]f the contract

is

evidence

ambiguous,

parol

or

extrinsic
7

will

be

allowed to clarify the contract.”

Marriott Int’l, Inc.

v. deCelle, 722 So. 2d 760, 762 (Ala. 1998).

“Although

the destruction of contracts because of uncertainty is
disfavored under the law, if a court cannot discern the
intentions of the parties to a contract because the
contract is so vague and indefinite, the contract is
void on the ground of uncertainty.”

Drummond Co., Inc.

v. Walter Industries, Inc., 962 So. 2d 753, 774 (Ala.
2006); see also White Sands Group, L.L.C., v. PRS II,
LLC, 998 So. 2d 1042, 1051 (Ala. 2008) (“[A] contract
that leaves material portions open for future agreement
is nugatory and void for indefiniteness.”)
citations omitted).

(internal

For an alleged contract to be

considered void on this basis, “the indefiniteness must
reach

the

point

where

Poole

v.

Prince,

61

construction
So.

3d

258,

becomes
275

futile.”

(Ala.

2010)

(internal citations omitted).
In

this

contract.

case,

it

is

clear

there

was

a

valid

In response to a $ 16,000 offer from Bogan,
8

Mims’s counsel responded, by email, that he could do
$ 14,000.

This

$ 14,000

was

a

counteroffer,

Bogan accepted via email on May 21.

which

Therefore, there

was a written offer (Mims’s email offering $ 14,000), a
written acceptance (Bogan’s email), and consideration
(payment for settlement of the case).

The contract is

valid.
Mims points to a June 1 email, where his counsel
stated

that

[Bogan’s

he

did

counsel]

“not

have

notifying

the

a

problem

Judge

that

with
we

you
have

reached a settlement agreement in principle, pending
execution
Maxwell

to

of
W.

the

release

Allen

forms,”

Sheehan

(doc.

Email
no.

from
86-5)

Leroy
at

1.

Relying on this email, Mims argues that there was no
settlement without execution of the release forms.

In

other words, he argues that execution of the release
forms was a material term of the contract that was
never completed.

However, as noted above, the mere

fact that parties intend to memorialize an agreement in
9

a more formal way does not make the initial offer and
acceptance non-binding.

Samson Plastic Conduit, 718 F.

Supp. at 892; Restatement (Second) of Contracts § 27
(1981).

Here, there is no indication that signing the

release forms was a material term of the deal when Mims
made the offer for $

14,000 or when the offer was

accepted, nor is there any indication that the written
release

forms

would

have

changed

a

material

term.

While Mims may not have wanted to inform the court that
the

settlement

pending

release

agreement
forms,

was

that

reached
parol

in

principle,

evidence

is

not

enough to raise any ambiguity in the essential terms of
the contract, much less one so “vague and indefinite”
as to force the court to destroy the contract.
***
Accordingly, pursuant to this opinion, the court
will enter an order, first, setting aside the dismissal
of this case and reinstating it and, second, enforcing
the settlement agreement.

Counsel for Bogan informs
10

the court that Bogan would be satisfied with simply an
order declaring that there is a settlement and, because
the case is now settled, a judgment dismissing the case
with prejudice.
longer

Bogan’s counsel says a release is no

necessary.

therefore,

include

The
the

order
requested

of

the

court

declaration,

will,
and

a

judgment of dismissal with prejudice will follow and be
entered as well.
DONE, this the 30th day of July, 2015.
/s/ Myron H. Thompson___
UNITED STATES DISTRICT JUDGE