McCurdy v. Auburn University et al
OPINION AND ORDER, it is the ORDER, JUDGMENT, and DECREE of the court as follows:(1) The 63 judgment of dismissal is vacated and this case is reopened; (2) the defs' 65 motion to enforce settlement is granted; (3) All parties are enjoined an d restrained from failing to comply with the 76 settlement agreement and said settlement agreement is adopted as the order of the court; (4) Pursuant to the 76 settlement agreement, it is declared that defs are released and discharged from all of plfs claims as set forth in the settlement agreement; directing the clerk to enter this document on the civil docket as a final judgment pursuant to Rule 58 FRCP; this case is closed again. Signed by Honorable Judge Myron H. Thompson on 12/30/15. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Dorothy McCurdy names Auburn University
charges that, on account of her race, the defendants
paid her less than other employees doing comparable
work, denied her a promotion, and subjected her to a
hostile-work environment, all in violation of Title VII
of the Civil Rights Act of 1964, as amended (42 U.S.C.
§§ 1981a and 2000e through 2000e-17), and the Civil
Rights Act of 1866, as amended (42 U.S.C. § 1981).
§ 2000e-5(f)(3) (Title VII) and 28 U.S.C. § 1343(a)(3)
defendants’ motion to enforce settlement.
is now representing herself, opposes the motion.
the reasons below, the motion will be granted.
defendants, made the court aware that they wanted to
convened a settlement conference, and, after several
hours of mediation, the parties
reached an apparent
The magistrate judge then went
on the record to confirm the agreement.
then-counsel, and defense counsel were present in this
Defense counsel explained the terms of the
receive a full and general release from McCurdy.
magistrate judge asked McCurdy if she agreed to those
terms, and she answered affirmatively.
settlement agreement was in her best interests, and she
On October 30, 2015, the
court then entered
order dismissing this case, albeit “with leave to any
party to file, within 49 days, a motion to have the
consummated.” Order (doc. no. 63).
disputes that she agreed to it.
allowed by the dismissal order, the defendants filed a
motion to enforce the settlement agreement.
At a hearing on the enforcement motion on December
withdraw, and McCurdy proceeded to represent herself.
McCurdy and defense counsel then presented evidence and
argument to the court.
litigation is pending before that court.
U.S. Xpress, Inc., 2013 WL 1363484, at *2 (M.D. Ala.
settlement and voluntarily dismiss the lawsuit, but a
dismissal order expressly retained jurisdiction to do
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
expressly retained jurisdiction to set aside dismissal
within 49 days. The defendants’ motion was filed within
settlement has been reached by the parties, federal
courts have differed on the source of law to apply.
Courts have decided on some occasions that federal law
(Thompson, J) (citing cases taking both approaches);
see also Gamewell Mfg., Inc. v. HVAC Supply, Inc., 715
F.2d 112, 113-16 (4th Cir. 1983) (same).
In this case,
“the court need not resolve which body of law applies”
defendants is enforceable under both federal law and
Alabama law. Jowers, 2013 WL 424726, at *1 (quotation
marks and citation omitted).
ALABAMA LAW: Under Alabama law, an attorney has the
authority to bind his client by a settlement agreement
if it is reduced to writing or put on the minutes of a
See 1975 Ala. Code § 34-3-21; see
also Mays v. Julian LeCraw and Co., Inc., 807 So. 2d
551, 554 (Ala. Civ. App. 2001) (stating that “Section
then-counsel and defense counsel
was entered on the
proceeding before the magistrate judge.
However, admittedly, if there was no meeting of the
minds before agreeing to the settlement agreement, that
is, if the parties did not “assent to the same thing
and in the same sense,” it could be argued that the
settlement agreement is not valid and therefore cannot
Allen v. Allen, 903 So. 2d 835, 840 (Ala.
Civ. App. 2004) (quoting Lilly v. Gonzalez, 417 So. 2d.
161, 163 (Ala. 1982).
Whether there was a meeting of
the minds “is determined by reference to the reasonable
Id. (quoting SGB Constr. Servs, Inc. v. Ray
Sumlin Constr. Co., 644 So. 2d. 892, 895 (Ala. 1994)).
Here, McCurdy contends that the settlement was only
a partial one, that is, that it did not cover all her
claims. She further maintains that, if her then-counsel
he did agree to settle all the claims, he failed to
notify her of that.
The court is convinced from the
understood that all her claims were being resolved and
that she knowingly and voluntarily entered into the
agreement resolving all her claims.
In short, there
McCurdy’s then-attorney and defense counsel but between
McCurdy herself and defense counsel.
During the proceeding before the magistrate judge,
defense counsel announced the settlement terms in the
presence of McCurdy.
The announcement did not include
any indication that the parties settled only some of
their claims and not all of them.
“We’ve reached a settlement, Your
Honor. The dollar amount is $ 60,000.
$ 31,804 of that is designated as back
pay wages. Our agreement includes the
usual and standard terms, including a
full and general release, an agreement
not to rehire, and our usual terms.”
McCurdy Settlement Conference Tr. (doc. no. 64) at 2:22
representation, the magistrate judge said to McCurdy,
“And Ms. McCurdy, you’ve heard the terms that [defense
counsel] has said.
You agree those are the terms of
responded, “Yes, sir.”
Id. at 3:6-9.
settlement is in your best interest?” Id. at 3:10-11.
McCurdy replied, “Yes, sir.”
Id. at 3:12.
Then, at the conclusion of the hearing, and still
trial judge “to suspend any further action” in the case
and to notify the trial judge of the settlement and
“dismissal of the case.” McCurdy Settlement Conference
Tr. (doc. no. 64) at 3:20-25.
McCurdy did not object
when she heard that.
entering into a settlement agreement on all claims.
This notion of a partial settlement is nowhere to be
found in the recorded proceedings before the magistrate
judge; it is nothing more than a belated effort by
McCurdy to get out of the settlement to which she and
McCurdy is therefore required to comply with the
settlement by not only her then-attorney’s actions but
under federal law, which requires only that settlement
agreements “be entered into voluntarily and knowingly”
by the plaintiff.”
Fulgence v. J. Ray McDermott & Co.,
662 F.2d 1207, 1209 (5th Cir. Dec. 7, 1981).*
while McCurdy contends that she did not know that she
was settling the entire case, the court is convinced
otherwise for the reasons set forth above.
The Eleventh Circuit has adopted as precedent
all decisions of the former Fifth Circuit rendered
prior to October 1, 1981, and all Former Fifth Circuit
Unit B and non-unit decisions rendered after October 1,
1981. See Stein v. Reynolds Secur., Inc., 667 F.2d 33,
34 (11th Cir. 1982); Bonner v. City of Prichard, 661
F.2d 1206, 1207 (11th Cir. 1981) (en banc).
* * *
Accordingly, it is the ORDER, JUDGMENT, and DECREE
of the court as follows:
vacated and this case is reopened.
(2) The defendants’ motion to enforce settlement
(doc. no. 65) is granted.
(3) All parties are enjoined and restrained from
failing to comply with the settlement agreement (doc.
no. 76) and said settlement agreement is adopted as the
order of the court.
(4) Pursuant to the settlement agreement (doc. no.
76), it is declared that defendants are released and
discharged from all of plaintiff’s claims as set forth
in the settlement agreement (doc. no. 76).
The clerk of the court is DIRECTED to enter this
This case is closed again.
DONE, this the 30th day of December, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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