Mims v. Bogan (MAG+)(JOINT ASSIGN)
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
CIVIL ACTION NO.
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.
is proper under 28 U.S.C. §§ 1331 (federal question),
The case is now before the court on Mims’s motion to
Bogan’s motion to enforce the settlement.
was held on both motions on July 29, 2015.
reopened, and the motion to enforce the settlement will
be granted as well.
On June 2, 2015, Bogan’s counsel informed the court
that the parties in this case had reached a settlement
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
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
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
settlement offer to $ 14,000. On the same day,
Bogan’s counsel wrote back, saying that “[t]he
$ 14,000.000 is accepted.” Email from Joe Adams
to Leroy Maxwell (doc. no. 86-2) at 1.
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
execution of release forms.”
Email from Leroy
Maxwell to W. Allen Sheehan (doc. no. 86-5) at
settlement agreement, to which Bogan proposed adding
language that would expedite the dispersal of funds to
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.
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.
argues, without providing any detail, that the parties
never reached a settlement.
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.
Mass. Cas. Ins. Co. v. Forman, 469 F.2d 259,
whether a valid, enforceable settlement agreement has
differed on the source of law to apply.
decided, on some occasions, that federal common law
(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.
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.
See also Hogan v. Allstate Beverage Co., Inc.,
821 F.Supp.2d 1274, 1279 (M.D. Ala. 2011) (Thompson,
J.) (discussing the differing approaches).
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.
acceptance, consideration, and mutual assent to terms
essential to the formation of a contract.”
Regions Fin. Corp., 29 So. 3d 872 (Ala. 2009).
contract must be both defined and agreed-upon.
Hogan, 821 F. Supp. 2d at 1280 (citing Browning v.
Peyton, 918 F.2d 1516, 1521 (11th Cir. 1990)).
agreement, even an oral one, will not automatically be
formal document was envisioned.”
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
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
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.”
Kelmore, LLC v. Alabama
(internal quotation marks omitted).
“[I]f the contract
allowed to clarify the contract.”
Marriott Int’l, Inc.
v. deCelle, 722 So. 2d 760, 762 (Ala. 1998).
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.”)
For an alleged contract to be
considered void on this basis, “the indefiniteness must
(internal citations omitted).
In response to a $ 16,000 offer from Bogan,
Mims’s counsel responded, by email, that he could do
Bogan accepted via email on May 21.
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
Mims points to a June 1 email, where his counsel
reached a settlement agreement in principle, pending
Relying on this email, Mims argues that there was no
settlement without execution of the release forms.
other words, he argues that execution of the release
forms was a material term of the contract that was
However, as noted above, the mere
fact that parties intend to memorialize an agreement in
a more formal way does not make the initial offer and
Samson Plastic Conduit, 718 F.
Supp. at 892; Restatement (Second) of Contracts § 27
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
While Mims may not have wanted to inform the court that
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
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
Bogan’s counsel says a release is no
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
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