Carson v. Verismart Software, Inc. et al

Filing 134

ORDER RE SETTLEMENT AGREEMENT DRAFTING DISPUTES. Signed by Magistrate Judge Donna M. Ryu on 02/05/2013. (dmrlc1, COURT STAFF) (Filed on 2/5/2013)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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FLETCHER CARSON,

No. C 11-03766 DMR

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Plaintiff,
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ORDER RE SETTLEMENT
AGREEMENT DRAFTING DISPUTES

v.
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VERISMART SOFTWARE, et al.,
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Defendants.
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___________________________________/
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On June 1, 2012, this court convened a settlement conference that resulted in the full

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resolution of this case. The parties agreed to the materials terms of a confidential settlement, and

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placed those terms on the record. Although the parties expressed their intent to reduce the terms of

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the settlement to writing, all parties understood that the settlement agreement was fully enforceable

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as of June 1, 2012 on the material terms that were announced and agreed to on the record.

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The parties subsequently reassigned the case to the undersigned for all purposes. They

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agreed to vest full authority in this court to decide all disputes regarding the drafting of the

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settlement agreement, with such disputes to be submitted through a joint letter, without oral

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argument, for a definitive and binding decision without right of appeal.

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On January 14, 2013, the parties submitted a joint letter requesting that the court resolve

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certain drafting disputes between Defendant Carl Raff on the one hand, and Plaintiff Fletcher

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Carson, Defendants Verismart Software Inc., Phillip Thoren, James Garvey, Andy Thoren, and Joe

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Dawson, and additional contractual parties Omsphere LLC and Thomas McKelvey, on the other.

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Having reviewed the submissions, the court makes the following final, binding and non-appealable

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decisions.

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The court will address the disputes regarding the specific paragraphs of the settlement

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agreement that are identified in the headings in the joint letter.1 Except where specifically noted, the

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paragraphs in the joint letter, as well as in this opinion, refer to the numbering in Raff’s proposed

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For the Northern District of California

United States District Court

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agreement.
Paragraph 3.2(d): Raff seeks to eliminate the words “assist” and “incite” from the provision

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as agreed to by the other parties. The words “assist” and “incite” shall remain in the agreement.

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They are consistent with the material terms of the agreement.

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Paragraphs 3.2(e), 3.2(f), and 3.2(i): Raff’s proposed paragraphs 3.2(e) and 3.2(f) are
rejected as exceeding the material terms of the agreement.

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Paragraph 3.2(h): Raff’s proposed paragraph 3.2(h) combines two paragraphs, (¶¶ 3.2(e) and

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(g)), in the proposal made by the other parties. Raff’s proposed paragraph 3.2(h) is rejected. It does

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not materially differ from the provisions agreed upon by all other parties. Raff makes no attempt to

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explain why his proposed wording is superior to the language accepted by all other parties.

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Paragraph 3.2(j): Although this provision is identified in a heading in the joint letter, the

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submissions indicate that the parties are in full agreement regarding the language of this paragraph.

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Raff’s proposed ¶ 3.2(j) is identical to the other parties’ proposed ¶ 3.2(i). Therefore, no decision is

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necessary.

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In reviewing the parties’ submissions, it appears that Raff’s proposed agreement contains some
language that differs from the agreement proposed by the other parties, but is not raised as a dispute in
the joint letter. The court will decide only those disputes that were specifically raised in the joint letter.

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Paragraph 8.3.2: Although this provision is identified in a heading in the joint letter, the

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submissions indicate that the parties are in full agreement regarding the language of this paragraph.

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Therefore, no decision is necessary.

IT IS SO ORDERED.

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Dated: February 5, 2013

ERED

ORD
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. Ryu

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For the Northern District of California

United States Magistrate Judge

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United States District Court

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agreement. It also appears to be superfluous.

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Paragraph 8.4: Raff’s proposal is rejected as exceeding the scope of the material terms of the

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