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)

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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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