Fitzhugh v. AB McDonough's Inc et al
Filing
30
ORDER granting 28 Motion to Enforce Settlement Agreement. The parties SHALL enter into and execute a settlement agreement within seven days of the entry of this Order. Defendants SHALL tender the sum of $420.00 to Plaintiff as sanctions with in seven days of the entry of this Order. Upon the full execution of the settlement agreement and the payment of the award of sanctions, the parties SHALL execute and file with the Clerk a stipulation of dismissal with regards to this action. Signed by Judge J. Randal Hall on 03/09/2017. (pts)
IN THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
HILLARY N.
FITZHUGH,
*
Plaintiff,
*
v.
*
AB MCDONOUGH'S,
WILLIAM R. LEE,
INC.,
Sr.,
and
CV
416-113
*
*
•
Defendants.
*
ORDER
Before
the
Court
settlement
agreement.
failed
oppose
to
Accordingly,
7.5, SDGa.
or
is
Plaintiff's
(Doc.
28.)
otherwise
Plaintiff's
motion
Nevertheless,
of Plaintiff's motion,
To
respond
is
motion
date,
to
to
Defendants
Plaintiff's
deemed
enforce
unopposed.
have
motion.
See
LR
upon due consideration of the merits
the motion is GRANTED.
I.
BACKGROUND
Plaintiff was employed in 2014 as a bartender by Defendant
AB McDonough's,
Inc., d/b/a Billy's Place ("McDonough1s").
Compl., Doc. 19, f 11.)
of
her
employment,
environment and was
Defendant William R.
(Am.
Plaintiff alleges that, during the term
she
was
subjected
to
a
hostile
sexually harassed by McDonough's owner,
Lee,
Sr.
(Id^ St 12.).
work
co-
Plaintiff also
alleges that she was improperly forced to split her tips with
her
manager,
non-party
Alan
Larkin,
Labor Standards Act ("FLSA").1
On
May
16,
2016,
against Defendants.
parties
the
entered
parties
-
Plaintiff's
parties
claims
to
be
"confession of
Superior
G.)
Plaintiff
on
1
In
of
this
addition
drafted
the
the
that
her
present
by
both
record
28,
formal
Fair
action
County,
parties,
as
be
Georgia
settlement
Exs.
in
this
the
2016,
settled
A-D.)
The
settlement
well
as
a
entered in the
the
agreement.
of
26,
-
written
judgment to
negotiation
event
of
Exs.
E,
(Id.,
formal
settlement
counsel attempted to insert an additional
not
26,
2016;
additional
to
the
October
of
(Doc.
a
had
October
the
On
counsel
email.
Chatham
Defendants'
term
include
of
breach
material
their
through
of
While discovery was ongoing,
negotiations.
executed
During
agreement,
initiated
judgment" consent
Court
Defendants'
F,
through
subsequently
agreement
1.)
settlement
violation
(Id. 1 18.)
Plaintiff
(Doc.
in
been
Plaintiff's
term.2
claims
for
previously
counsel
Nevertheless,
sexual
harassment
agreed
to
refused
on November
under
by
Title
to
15,
VII
and
violation of the FLSA, Plaintiff also alleges claims for retaliation in
violation of Title VII and Georgia common law claim for assault, battery, and
intentional infliction of emotional distress.
(See Am. Compl.,
generally.)
2 In their email correspondence dated October 26, 2016, counsel agreed that,
inter alia, there would be "[n]o disparagement in the future of [Plaintiff]
by [Defendant Lee] or any manager or officer of [McDonough's]."
(See Doc.
28, Ex. A; see also id., Exs. B-D.)
In an email to Plaintiff's counsel dated
November
11,
2016,
Defendants'
counsel
stated
that
the
formal
settlement
agreement proposal attached to an earlier email from Plaintiff's counsel was
"pretty much fine," but requested that the aforementioned non-disparagement
clause be made reciprocal.
(Id. , Ex. F.)
Plaintiff's counsel refused this
request, however, on the grounds that it was not part of the original
agreement and that Plaintiff "must be able to address" various allegations
made against Plaintiff during the course of this litigation and communicated
to various third parties.
(Id., Ex. G.)
Shortly after receiving notice of
this refusal, the parties' respective counsel spoke telephonically and agreed
2
2016,
Defendants'
written
(Id. ,
settlement
Exs.
H,
agreement,
in
counsel
the
agreed
agreement
H-l.)
to
the
without
Significantly,
terms
this
as
part
of
the
additional
of
the
Defendants'
$4,291.67,
of
$103,000.00
first
was
payment
due
by
way
of
thereunder,
on or before
December
Plaintiff
monthly
in
15,
the
term.
settlement
Defendants were to make a total payment to
amount
formal
payments;
amount
2016.
of
(Id. , Exs.
H-l. )
Plaintiff
(and
subsequently
"confession
copies
of
which
of
December
14,
judgment"
were
November 28, 2016.
executed
sent
to
settlement
consent
Defendants'
counsel
agreement
judgment),
(Id. , Ex. I;
2016,
the
electronic
on
see also id. , Exs.
Plaintiff's
counsel
counsel inquiring as to Defendants'
emailed
or
J,
about
K.)
On
Defendants'
execution of the settlement
agreement and noting that the first payment thereunder was due
the
following
Defendants'
intended
day.
(Id^,
Ex.
K. )
Later
that
same
day,
counsel informed Plaintiff's counsel that Defendants
to
observe
their
obligations
under
the
terms
of
the
settlement agreement but were refusing to sign the settlement
agreement without a confidentiality provision.
On December 15,
the
office
of
2016,
Ex.
0.)
Defendants had a check hand-delivered to
Plaintiff's
settlement agreement.
(Id.,
(Id_J
counsel
as
per
the
terms
of
the
On December 20, 2016, Plaintiff's
to proceed forward with the formal settlement agreement without the
reciprocal non-disparagement clause and in the form and on the terms of the
formal settlement agreement eventually signed by Plaintiff and provided to
Defendants.
(Id.,
Exs.
H & H-l.)
3
counsel
emailed
received
the
not
signed
the
Defendants'
first
payment
settlement
counsel
under
the
agreement
stating
that
settlement
itself
and
she
had
agreement
that
-
but
if
the
signed agreement was not received by the following morning - she
would be preparing a motion to enforce settlement and requesting
attorney's
see
also
fees
in
id. ,
connection with that motion.
Exs.
L,
M.)
When
Defendants
execute and return the settlement agreement,
present motion to enforce.
failed
to
timely
Plaintiff filed the
DISCUSSION
Motion to Enforce Settlement Agreement
Federal courts "use the applicable state's contract
construe
Elec.
and
Co.,
Concepts,
Cir.
enforce
271
F.
settlement
App'x 908,
agreements."
912
(11th Cir.
Inc. v. W. Life Ins. Co.,
1981)).
Under
Georgia
that
evidence
in
sufficient
element
Inc.
to
record
create
the
v. Gen.
same
documents,
the
of
App. 2005)
the
the
law,
"in
a
affidavits,
reveal
jury
Elec.
that
issue
[non-movant's]
on
case."
Capital Corp.,
apply
to
a
4
2008)
order
to
v.
Gen.
(citing Ins.
1111-12
succeed
depositions
there
at
is
least
DeRossett
621 S.E.2d 755,
motion
law to
(5th
on
a
a party must show the
(internal quotation and citation
standards
Vinnett
639 F.2d 1108,
motion to enforce a settlement agreement,
court
N;
(Doc. 28.)
II.
A.
(Id. , Ex.
to
and
no
other
evidence
one
essential
Enterprises,
756
omitted).
enforce
(Ga.
Ct.
Because
settlement
agreement as
evidence
in
a motion for summary judgment,
the
light
See
id.
Defendants.
most
favorable
to
the Court views the
the
"A settlement agreement is a contract,
same
requirements
contracts."
Id.
also Moreno v.
("A definite
of
formation
of
Strickland,
offer
the
and
favors
certain,
should
for
consideration,
(citation omitted)).
"Only when a
and
and
will
an
parties
unambiguous
Id.
agreement
621 S.E.2d at
when
Ct.
[settlement]
App.
1999)
756.
have
agreement is disputed,
by a writing.
very
be
2002)
formed."
entered
to
quotation,
the
App.
"However,
agreement
(internal
("Where
Ct.
see
acceptance,
punctuation omitted); see also Scott v. Carter,
(Ga.
other,
(Ga.
Inc.,
enforced."
837
as
92
exists
compromise,
definite,
be
and it must meet the
enforceability
567 S.E.2d 90,
complete
minds
DeRossett Enterprises,
law
party,
(internal quotation and citation omitted);
create a binding contract."
meeting
and
non-moving
the
into
settle,
citation,
a
it
and
521 S.E.2d 835,
existence
of
the
it may only be established
Ideally, the writing requirement will be met by a
formal agreement
signed by the parties.
However,
letters or
documents prepared by attorneys which memorialize the terms of
the
agreement
reached
will
suffice.").
In
Georgia,
"an
attorney!s consent to [a settlement] agreement is binding on his
client."
(citing
Wong v.
Stone
Bailey,
Mountain
752 F.2d 619,
Confederate
621
Monumental
(11th Cir.
Association
Smith, 170 Ga. 515, 521, 153 S.E. 209, 211 (1930)).
5
1985)
v.
Here,
between
the Court finds that there was a meeting of the minds
the
October 26,
(See
Doc.
parties
regarding
settlement
as
2016 emails between the parties'
28,
Ex.
A-D.)
This
meeting
reflected
in
the
respective counsel.
of
the
minds
was
even
further crystalized in the form of the formal written settlement
agreement signed by Plaintiff which was delivered to
on November
28,
2016,
the
form and content
of which was
to by Defendants' counsel on November 15, 2016.3
H-l,
I.)
Moreover,
Defendants
agreed
(Id. , Exs. H,
Plaintiff has fully evidenced - and the Court
concludes - that there was an offer and complete acceptance,
consideration,
567
and
S.E.2d at 92.
these
showings
material
fact.
therefore
a
binding
contract.
See
for
Moreno,
Defendants have made no attempt to contradict
or
otherwise
Therefore,
demonstrate
Plaintiff is
a
genuine
entitled to
issue
of
judgment in
its favor on its motion to enforce settlement agreement.
B.
Motion
for
Sanctions
In addition to requesting the Court to enforce the parties'
settlement agreement,
Plaintiff has
also requested the Court to
require Defendants to pay that portion of Plaintiff's attorneys
3 Even without the subsequent formal settlement agreement, the October 26,
2016 email exchanges between the parties' respective counsel (doc. 28, Exs.
A-D)
are
themselves
sufficiently
definite,
certain,
and
unambiguous
to
be
enforceable as a settlement between the parties.
See DeRossett Enterprises,
Inc. , 621 S.E.2d at 756; Moreno v. Strickland, 567 S.E.2d at 92/ Scott v.
Carter, 521 S.E.2d 835, 837.
Notably, there is no material difference
between the terms agreed to by the parties in the October 26, 2016 emails and
the subsequent settlement agreement
Defendants on November 28, 2016.
1,
signed by
(Compare Doc.
I.)
6
Plaintiff and delivered to
28, Ex. A, with id.,
Exs. H-
fees
associated
motion.
(Doc.
with
28,
the
at
preparation
5-6.)
an affidavit in support,
of
Plaintiff's
Plaintiff s
counsel
has
present
submitted
attesting that 2.1 hours - at a rate of
$200.00 per hour - was spent in preparing the motion.
Ex.
P.)
Accordingly,
obligated
faith
to
pay
Plaintiff
Plaintiff
refusal
to
requests
$420.00
sign
the
as
that
Defendants
sanctions
settlement
(Doc. 28,
for
their
agreement
be
bad
(which
necessitated Plaintiff's present motion).
Notably,
the
route
circumstances in Georgia,
civil
litigants
Inc. ,
699
1988)).
in
federal
905,
well,
Procedure
Rule
does
concern
filed
by
federal
party
courts,
has
disrupting
order."
are
a
F.3d
682
See
however,
R.
have
a
party
for
acted
in
bad
faith
the
Eagle
1075,
litigation
Hosp.
1306
1106
v.
the
P.
544
Rule
or
11(b)
of
inherent
power
by,
"inter
or hampering
Physicians,
LLC
(11th Cir. 2009);
(11th Cir.
2001)
alia,
enforcement
v.
SRG
request
paper
(c) .
to
"litigation misconduct"
The
impose
where
delaying
of
Ga.
Civil
other
&
Union
(N.D.
Plaintiff's
motion,
Stores,
(citing
535,
Federal
Civ.
these
Wal-Mart
1988)
because
in
"is unavailable to
F. Supp.
written
Fed.
do
Ga.
under
unavailable
pleading,
Bruce
(N.D.
sanctions
against
561 F.3d 1298,
261
11
Defendants.
sanctions
906
travelled
§ 9-15-14,
court."
v. Tarancon Corp.,
As
not
O.C.G.A.
Supp.
F.
Carbide Corp.
typically
a
or
a court
Consulting,
Inc.,
see also Byrne v. Nezhat,
("This power
is derived
from the court's need to manage its own affairs so as to achieve
7
the
orderly
aspect
of
a
attorneys'
both,
or
and
expeditious
court's
disposition
inherent
power
is
of
the
.
ability
.
to
.
One
assess
fees and costs against the client or his attorney,
when either has acted in bad faith,
for
cases.
oppressive
reasons."
(internal
vexatiously,
quotations
wantonly,
and
citations
omitted) ), abrogated on other grounds by Douglas Asphalt Co.
QORE,
Inc.,
power,
F.3d
657
however,
discretion."
1146,
must
Eagle
1151-52
be
Hosp.
(11th
exercised
Cir.
with
Physicians,
LLC,
2011).
F.3d
v.
"This
restraint
561
or
at
and
1306
(internal quotations and citations omitted).
Here,
the
Court
finds
that
Defendants
have
acted
in
bad
faith in refusing to execute the formal settlement agreement and
related "consent
to judgment."
It is clear from the evidence
before the Court that the only reason for Defendants'
refusal to
execute these documents was to coerce
Plaintiff to acquiesce to
their
terms
attempts
finalized
to
settlement
renegotiate
agreement.
having settled this case twice
force
a
more-favorable
third
the
Indeed,
over,
Plaintiff's
have
not
motion
even
is
through
telling
the
parties
obstinacy.
and was forced to expend
gamesmanship.
attempted to mount
also
otherwise
Defendants attempted to
further fees to put an end to Defendants'
Defendants
the
despite
version
Plaintiff called their bluff, however,
of
as
to
That
a defense
against
their
faith.4
bad
4 Given that Defendants have failed to request an evidentiary hearing or
otherwise controvert Plaintiff's evidence of its attorney's fees incurred in
connection with its present motion, an evidentiary hearing is unnecessary
Accordingly,
the Court exercises its calm discretion and awards
Plaintiff her attorney's
end to Defendants'
fees
the
amount
incurred to put
an
frivolous and improper tactics.
III.
Upon
in the
foregoing
CONCLUSION
and
due
consideration,
Plaintiff's
Motion to Enforce Settlement Agreement and Motion for Sanctions
(doc.
28)
SHALL
is GRANTED.
enter
"confession
the
of
terms
Enforce
into
set
and
execute
judgment"
forth
a
consent
in
judgment)
Exhibit
Settlement Agreement
settlement
I
to
(doc.
28,
of the entry of this Order.
days
IT
Defendants
SHALL
tender
sanctions within seven
IS
IT IS THEREFORE ORDERED that the parties
FURTHER
ORDERED
the
(7)
sum
of
in
agreement
the
form
IS
I)
and
on
Motion
Plaintiff's
Ex.
(and
to
within seven
(7)
FURTHER ORDERED that
$420.00
to
Plaintiff
days of the entry of this Order.
that,
upon
the
full
execution
as
IT
of
the
settlement agreement and the payment of the award of sanctions
contemplated hereby, the parties SHALL execute and file with the
Clerk a stipulation of dismissal with regards to this action.
given the level of detail provided in Plaintiff's supporting affidavit and
the significantly increased costs to the parties that would be associated
with a hearing hereon.
See Aetna Ins. Co. v. Meeker, 953 F.2d 1328, 1335
(11th
Cir.
evidentiary
1992)
("Where,
hearing
and
as
did
in
not
this
case,
controvert
appellant
did
appellee's
contained detailed information concerning the amount
not
request
affidavits
and the
an
which
type of legal
services provided by appellee's counsel, the district court did not abuse its
discretion in failing to hold an evidentiary hearing.").
ORDER
March,
ENTERED
at
Augusta,
Georg la,
this
/
day
2017.
wdal
hall
:ted/states district judge
fern district of georgia
10
of
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