Gentry, et al v. National Multi List Service, Inc., et al

Filing 40

ORDER. Plaintiffs' Renewed Motion to Vacated Order and Enforce Settlement Agreement 38 is DENIED without prejudice to Plaintiffs filing a Motion for Default and a motion for default judgment no later than October 1, 2014, by Magistrate Judge Kathleen M. Tafoya on 9/2/14.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–00858–PAB–KMT
SUSAN GENTRY, and
LISA LUCERO, on behalf of themselves and others similarly situated,
Plaintiffs,
v.
NATIONAL MULTI LIST SERVICE INC.,
JAMES JONES, and
JIM BRAND,
Defendants.

ORDER
This matter is before the court on Plaintiffs’ “Renewed Motion to Vacated Order and
Enforce Settlement Agreement.” (Doc. No. 38, filed July 8, 2014.)
In their Complaint, filed March 24, 2014 (Doc. No. 1), Plaintiffs assert claims for (1)
unpaid wages under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.; (2) tax fraud
under 26 U.S.C. § 7434; (3) willful withholding under the Colorado Wage Act, Colo. Rev. Stat.
§ 8-4-101 et seq.; and (4) breach of contract or quasi contract. Defendants were served with
Plaintiff’s Complaint on April 8, 2014. (Doc. Nos. 15-17.) Based on the fact that Defendants
had approached them about a potential settlement, Plaintiff sought and received an extension of
time for Defendants to respond through May 2, 2014. (Doc. No. 19, 21.)

On May 21, 2014, Plaintiffs filed a Motion for Stay Pending Completion of Settlement
stating that the parties had reached a settlement and that the final payment would be made by
Defendants to Plaintiffs on or before August 1, 2014. (Doc. No. 22.) The court granted this
motion and directed the parties to file Dismissal Papers pursuant to Fed. R. Civ. P. 41, or
alternatively a Joint Status Report, no later than August, 15, 2014. (Doc. No. 24.)
Plaintiffs’ present Motion seeks to enforce the Settlement Agreement and Mutual Release
(“Settlement Agreement”) reached between Plaintiffs and Defendants on May 8, 2014. (See
Mot., Ex. 4.) The Settlement Agreement provides that Defendants were to make 12 payments to
Plaintiffs totaling $8,000, after which Plaintiffs would dismiss their claims in this action without
prejudice. (See id.) Apparently, Defendants have failed to make any payments under the
Settlement Agreement. (Mot. at 2.)
Under the circumstances presented, the court declines to enforce the Settlement
Agreement. Defendants have failed to appear in this action and, therefore, are in default.
Further, Defendants have failed to the make any payments under the Settlement Agreement. The
court has no interest in enforcing a contractual agreement in the absence of both contracting
parties—particularly where Defendants have made no attempt to comply with their obligations
under that contract.
Importantly, the Settlement Agreement provides that Plaintiffs shall be entitled to pursue
their original claims in the event of a breach. (Mot., Ex. 4 ¶ 16.) As such, the court finds the

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appropriate course of action under the circumstances is for Plaintiffs to seek an entry of default
and then default judgment against Defendants.
Therefore, it is
ORDERED that Plaintiffs’ “Renewed Motion to Vacated Order and Enforce Settlement
Agreement” (Doc. No. 38) is DENIED without prejudice to Plaintiffs filing a Motion for Default
and a motion for default judgment no later than October 1, 2014.
Dated this 2nd day of September, 2014.

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