Myers v. Hydraulic Hose of Hillsborough, LLC et al
ORDER denying 36 --motion for relief from judgment. Signed by Judge Steven D. Merryday on 12/4/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
LINDA M. MYERS,
CASE NO. 8:15-cv-2555-T-23AAS
HYDRAULIC HOSE OF
and BRIAN O’DONNELL,
The parties agreed on July 28, 2017, to settle this FLSA action. On August 4,
the plaintiff notified the court about the settlement and stated that the parties would
move for approval of the settlement no later than August 18. (Doc. 34) In accord
with Local Rule 3.08(b), an August 7 order (Doc. 35) dismisses the action without
prejudice and permits the parties to submit a stipulation of dismissal with prejudice
(accompanied by the proposed FLSA settlement) no later than October 6. A month
and a half after the expiration of the time within which to request a dismissal with
prejudice, the plaintiff moves (Doc. 36) to “enforce [the] settlement” or to vacate the
August 7 order. According to the plaintiff, the defendants repudiated the settlement.
1. Motion to “enforce the settlement”
Because no order retains jurisdiction to enforce the settlement, the court lacks
jurisdiction to enforce the settlement. Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375 (1994) (“Absent [an order that retains jurisdiction], enforcement of the
settlement agreement is for the state courts, unless there is some independent basis for
federal jurisdiction.”). To the extent the August 7 order implicitly “retains
jurisdiction” over an item, the order contemplates only a stipulation of dismissal with
prejudice accompanied by a motion for approval of the FLSA settlement.
2. Motion to vacate under Rule 60(b)(6)
An “extraordinary” remedy, relief under Rule 60(b)(6), Federal Rules of Civil
Procedure, requires showing that an “extreme” and “unexpected” hardship will
result from an order if not vacated. Griffin v. Swim-Tech. Corp., 722 F.2d 677, 680
(11th Cir. 1984) (citing Ackermann v. United States, 340 U.S. 193 (1950), and United
States v. Swift & Co., 286 U.S. 106 (1932)). Because a separate action for breach of
contract remedies the purported breach of a settlement, the considered weight of
authority holds that the breach of a settlement inflicts no “extreme” injury susceptible
to relief under Rule 60(b)(6).1 Sawka v. Healtheast, Inc., 989 F.2d 138, 140–41 (3d Cir.
1993) (Nygaard, J.); Rey v. United States, 51 F.3d 1046 (5th Cir. 1995) (per curiam);
If the settlement depended on judicial approval (that is, if approval of the settlement
amounted to a condition precedent) and if the parties failed to obtain approval, a different result
might obtain. But this order need not decide that issue because the plaintiff states (more than once)
that the settlement required no judicial approval or dismissal with prejudice. (Doc. 36 at 4)
Harman v. Pauley, 678 F.2d 479 (4th Cir. 1982) (Ervin, J.); cf. also Keeling v. Sheet Metal
Workers Intern. Ass’n, Local Union 182, 937 F.2d 408, 410 (9th Cir. 1991) (“In the usual
course upon repudiation of a settlement agreement, the frustrated party may sue
anew for breach of the agreement and may not, as here, reopen the underlying
litigation after dismissal.”).
Even if the breach of a settlement could justify relief under Rule 60(b)(6), in
this instance the e-mails attached to the plaintiff’s motion strongly suggest that
neglect by the plaintiff’s counsel accounts (at least partially) for the parties’ failure to
effectuate the settlement. The defendants’ counsel e-mailed the plaintiff’s counsel on
August 14, August 29, and September 18 to inquire about the settlement papers.2
(Doc. 36-1) The plaintiff’s counsel first responded on October 17 — two and a half
weeks after the expiration of the time within which to move for approval of the
settlement. (Doc. 36-1)
The parties agreed to resolve this FLSA action. According to the plaintiff, the
defendants repudiated the settlement, which purportedly required no judicial
approval or dismissal with prejudice. Because an action for breach of contract
remedies the plaintiff’s injury and because the plaintiff fails to identify an “extreme”
On October 20, the defendants’ counsel explained that the time within which to move for a
dismissal with prejudice expired on October 6 and asked, “How do you propose to overcome that
hurdle?” The plaintiff's counsel articulated no answer and instead responded, “Well, just send [the
money] to my trust account. . .”
and “unexpected” hardship that warrants vacating the August 7 order, the motion
(Doc. 36) is DENIED.
ORDERED in Tampa, Florida, on December 4, 2017.
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