Glass v. Beer, et al

Filing 254

ORDER signed by Judge Oliver W. Wanger on 4/19/2011 denying 243 MOTION to Terminate/Vacate Voluntary Dismissal and Settlement Agreement and Reschedule Jury Trial or Direct Defendants to Pay Plaintiff and Return Witness Fees and Travel Expenses. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DONALD GLASS,

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CASE NO. 1:04-cv-05466-OWW-SMS PC
Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S MOTION
TO TERMINATE/VACATE VOLUNTARY
DISMISSAL AND SETTLEMENT
AGREEMENT AND RESCHEDULE JURY
TRIAL OR TO DIRECT EXPEDITED
PAYMENT AND RETURN OF WITNESS
FEES AND TRAVEL EXPENSES

R. BEER, et al.,

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Defendants.

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(Doc. 243)
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I.

Procedural Background

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This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Donald Glass

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(hereinafter “Plaintiff”) a state prisoner proceeding pro se. This case was originally set for trial

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to begin May 11, 2010. However, a settlement conference was held May 4, 2010 at which the

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parties entered into a stipulation for voluntary dismissal with prejudice pursuant to Federal Rule

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of Civil Procedure 41(a)(1)(A)(ii). (Docs. 230, 231.)

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December 27, 2010, Plaintiff filed a “Motion to Terminate/Vacate Voluntary Dismissal

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and Settlement Agreement and Reschedule Jury Trial or Direct Defendants to Pay Plaintiff and

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Return Witness Fees and Travel Expenses.” (Doc. 243.) In support of his request to

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terminate/vacate his voluntary dismissal and the settlement agreement and to reschedule the jury

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trial, or direct Defendants to pay him, Plaintiff submitted nothing more than argument based on

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lack of payment, the passage of time, and reiteration of a conversation with the Deputy Attorney

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General. (Doc. 243, p. 2.) Plaintiff requests that the Deputy Attorney General be directed to
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arrange for issuance of his settlement check within thirty days, or that the stipulation of voluntary

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dismissal be terminated and the case be reset for jury trial. (Id.)

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In opposition, Defendants D. Adkinson, R. Beer, J. Buckley, W. Butts, V. Castillo, N.

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Dill, J. Gonzales, J. Keener, L. Loren, J. Marshall, D. Morales, R. Sloss, and B. Streeter

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(hereinafter “Defendants”) assert that this court lacks jurisdiction to enforce the settlement

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agreement, that there are no grounds to set aside the judgment, and that Plaintiff has an

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alternative remedy via civil action to enforce the settlement contract in state court. (Doc. 247.)

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Plaintiff argues in his reply that this Court “should have set a time schedule or a time

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limitation for allowing Plaintiff to withdraw the conditional voluntary dismissal if Defendants

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. . . repudiate or intentional [sic] delay or refuse to pay or (honor the settlement agreement once

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the budget [sic] signed) comply with the terms of the settlement/voluntary dismissal.” (Doc. 252,

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3:18-23.) Relying on Lau v. Gelndora Unified School District, 792 F.2d 929 (9th Cir. 1986),

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Plaintiff also argues that the Court should have expressly granted him a time frame within which

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to withdraw from the settlement/voluntary dismissal for lack of payment (id., at 3:24-4:4) and

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that his voluntary dismissal should be viewed as a dismissal without prejudice under Federal

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Rule of Civil Procedure 41 (id., at 4:5-12).

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II.

Legal Analysis

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A.

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Federal courts are courts of limited jurisdiction, possessing only that power authorized by

Settlement/Voluntary Dismissal

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Constitution and statute. Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375, 377 (1994).

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A claim for breach of contract or a settlement agreement, even if part of the consideration was

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dismissal of a federal case, will not provide the basis for federal court jurisdiction. Id. at 378.

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This limited jurisdiction cannot be expanded by judicial decree or consent of the parties. Id.

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(citing American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18 (1951)). Lack of jurisdiction is

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to be presumed and the burden of proving jurisdiction rests with the party asserting jurisdiction.

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Kokkonen, 511 U.S. at 377. Enforcement of a settlement requires its own basis for jurisdiction.

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Id.

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However, even if jurisdiction were assumed, the Ninth Circuit has allowed a judgment
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based on a settlement agreement to be set aside under Federal Rule of Civil Procedure 60(b)(6)

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only under extraordinary circumstances where one of the parties repudiated the agreement.

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Keeling v. Sheet Metal Workers Int. Assoc., 937 F.2d 408, 410 (9th Cir. 1991). The issue of

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whether this Court has jurisdiction to enforce the agreement underlying the Rule 41 stipulation

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entered in this case need not be reached as Defendants have not repudiated the agreement. The

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delay in payment to Plaintiff has been occasioned by the state’s budget crisis and an

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accumulation of numerous concomitant debts which could not be be helped or prevented by the

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parties. Defendants submitted evidence that payment of the settlement monies to Plaintiff is

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eminently forthcoming -- so much so that it may occur prior to the issuance of this order.

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Further, particularly given the state’s budgetary issues, delay in payment (even if protracted) does

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not, in and of itself constitute extraordinary circumstances to justify setting aside the stipulation

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of voluntary dismissal entered in this case.

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Further, Plaintiff and Defendants entered into a settlement pursuant to Federal Rule of

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Civil Procedure 41(a)(1)(ii), which provides for dismissal “by filing a stipulation of dismissal

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signed by all parties who have appeared in the action,” and causes dismissal to be with prejudice

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if (as here) the stipulation so specifies. Neither Rule 41, nor any provision of law provides for

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jurisdiction of a court over disputes arising out of an agreement that produces the stipulation.

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Kokkonen, 511 U.S. at 378 (“Enforcement of the settlement agreement, . . . , whether through

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award of damages or decree of specific performance, is more than just a continuation or renewal

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of the dismissed suit, and hence requires its own basis for jurisdiction”).
Finally, Plaintiff’s argument that, per Lau, he should have been given a time frame within

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which to withdraw the settlement/voluntary dismissal is in error. Lau addressed the imposition

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of conditions on a plaintiff’s motion for voluntary dismissal after the defendant has filed an

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answer or motion for summary judgment. Lau, 792 F.2d at 930-931. However, the case at bar

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was resolved via a statement that the parties had settled rather than by a request filed solely by

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Plaintiff such that Lau is inapplicable. See e.g. Camacho v. City of San Luis, 359 Fed. Appx.

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794, 797-98 (9th Cir. 2009).

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B.

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Plaintiff submitted witness fees and travel expenses that were served on three

Witness Fees and Travel Expenses

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unincarcerated witnesses (Sgt. Rangel, Lt. Nurse Koeppe, and Sgt. Scaife) to compel their

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attendance at trial.

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When the case resolved short of trial, Sgt. Rangel returned the monies he received to the

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Court. Subsequently, the monies from Lt. Nurse Koeppe were also returned and, per Plaintiff’s

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request, both sums were forwarded to Ms. Michelle Franklin. In their opposition, Defendants

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advised that the monies served on Sgt. Scaife had been surrendered to and deposited in the

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account of California State Prison – Corcoran and that the check for the return of the fees was

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being processed. (Doc. 248.) In fact, March 29, 2011, a check for Sgt. Scaife’s witness fees and

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travel expenses was filed in this case. April 6, 2011, an order issued for the Clerk of the Court to

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forward Sgt. Scaife’s witness fees and travel expenses to Ms. Franklin. (Doc. 249.) At the

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writing of this order, all of the witness fees and travel expenses which Plaintiff served for

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attendance at trial of the three unincarcerated witnesses (Sgt. Rangel, Lt. Nurse Koeppe, and Sgt.

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Scaife) have been received and, per Plaintiff’s request, forwarded to Mrs. Franklin.

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Accordingly, the portion of Plaintiff’s motion which seeks reimbursement for the witness

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fees and travel expenses which were paid for the three unincarcerated witnesses to attend the trial

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in this matter is moot.

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III.

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Conclusion
Based on the above, extraordinary circumstances not having been shown such that

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Plaintiff’s motion to terminate/vacate voluntary dismissal and settlement agreement and

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reschedule jury trial or direct defendants to pay Plaintiff, filed December 27, 2010, is HEREBY

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DENIED. Further, Plaintiff’s request that the witness fees and travel expenses be returned is

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DENIED as moot.

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IT IS SO ORDERED.

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Dated:
April 19, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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