Ross et al v. Option One Mortgage Services, Inc. et al

Filing 77

ORDER denying 76 Plaintiffs' Verified Petition for Relief from Order of Dismissal and to Reopen Case. Signed by Judge Virginia M. Hernandez Covington on 9/23/2011. (CR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TODD A. ROSS, et al.,
Plaintiffs,
v.

CASE NO:

8:07-cv-1967-T-33TGW

OPTION ONE MORTGAGE SERVICES,
INC., et al.
Defendants.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiffs'
Verified Petition for Relief from Order of Dismissal and to
Reopen Case.

(Doc. # 76).

On December 28, 2009, Plaintiffs, proceeding pro se,
filed a "Status Report" indicating that the parties had
reached a resolution on the principal terms and needed an
additional 30 days to complete the settlement agreement.
(Doc. # 74). On December 30, 2009, the Court entered an Order
dismissing the case without prejudice to the right of any
party to re-open the action within 60 days, upon good cause
shown, or to submit a stipulated form of final judgment.
(Doc. # 75).

The Court also stated that after that 60-day

period, the dismissal would be deemed with prejudice. Nothing
was filed by any of the parties within the 60-day period.

Almost two years later, Plaintiffs now move this Court to
vacate the order of dismissal and re-open this action based on
the

breach

of

the

"Compromise,

Settlement

and

Release

Agreement" entered into by the parties.
This Court, however, is without jurisdiction to enforce
the

settlement

agreement

because

it

did

not

retain

jurisdiction over the settlement agreement nor incorporate the
terms of the settlement agreement in the order. See Kokkonen
v. Guardian Life Ins. Co., 511 U.S. 375 (1994).
The situation would be quite different if
the parties' obligation to comply with
the terms of the settlement agreement had
been made part of the order of dismissal
-- either by separate provision (such as
a provision "retaining jurisdiction" over
the
settlement
agreement)
or
by
incorporating the terms of the settlement
agreement in the order. In that event, a
breach of the agreement would be a
violation of the order, and ancillary
jurisdiction to enforce the agreement
would therefore exist.
That, however,
was not the case here. The judge's mere
awareness and approval of the terms of
the settlement agreement do not suffice
to make them part of his order.
Id. at 381.

As such, enforcement of the settlement agreement
Id. at 382.

is left for the state courts.
Accordingly, it is

ORDERED, ADJUDGED, and DECREED:
Plaintiffs' Verified Petition for Relief from Order of
2

Dismissal and to Reopen Case (Doc. # 76) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 23rd
day of September, 2011.

Copies:
All Parties and Counsel of Record

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