Edwards v. Trade Publishing Ltd et al

Filing 76

ORDER GRANTING TRADE PUBLISHING LTD.'S MOTION TO ENFORCE SETTLEMENT AGREEMENT re 28 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 3/27/13. "The court grants the motion to enforce settlement agreement. Trade Publishing is directed to submit the stipulated dismissal agreed to by the parties no later than April 10, 2013. This leaves for adjudication only the claims asserted against Defendant Ron Jacobs." (emt, )CERTIFICATE OF SER VICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Joella Marie Edwards served by first class mail at the address of record on March 27, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOELLA MARIE EDWARDS,

)
)
Plaintiff,
)
)
vs.
)
)
TRADE PUBLISHING LTD.; and
)
RON JACOBS,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 12-00023 SOM/BMK
ORDER GRANTING TRADE
PUBLISHING LTD.’S MOTION TO
ENFORCE SETTLEMENT AGREEMENT

ORDER GRANTING TRADE PUBLISHING LTD.’S
MOTION TO ENFORCE SETTLEMENT AGREEMENT
I.

INTRODUCTION.
Plaintiff Joella Marie Edwards claims that Defendants

violated her copyright and seeks damages for that alleged
violation, as well as for emotional distress allegedly inflicted
and negligence.

See Verified Complaint, Jan. 11, 2012, ECF No.

1.
Defendant Trade Publishing Ltd. filed a motion to
enforce a settlement agreement resolving Edwards’s claims against
Trade Publishing.

See ECF No. 28.

Trade Publishing says that

Edwards agreed to dismiss her claims, but then refused to sign
the settlement documents, leading her attorneys to withdraw from
the case on the ground that they believed Edwards was reneging on
her agreement to settle the case.

See ECF No. 28.

The motion to enforce settlement agreement was
originally set for hearing on August 21, 2012.

See ECF No. 30.

At that hearing, the court determined that an evidentiary hearing
on the matter would be helpful to determine some of the issues in
the case.

The evidentiary hearing, with Edwards appearing by

videoconference, was set for September 10, 2012.

See ECF No. 38.

That evidentiary hearing was continued a number of times to
accommodate Edwards’s family medical emergencies.
As the continued hearing date of March 25, 2013,
approached, court staff made numerous attempts to obtain
confirmation from Edwards that the hearing would finally proceed
as planned.

See ECF No. 74.

In a minute order issued on March

19, 2013, the court informed Edwards that, unless it received
confirmation by March 21, 2013, that she was going to appear at
the hearing scheduled for March 25, 2013, the court would cancel
the hearing and rule on the motion based on the papers before it.
Id.

The court warned Edwards that, because she had filed no

opposition to the motion, if Edwards did not appear at the
hearing and introduce evidence, the court would be “highly
likely” to grant the motion to enforce settlement.

Id.

When the court did not timely receive a response from
Edwards, it cancelled the hearing.

See ECF No. 75.

The court,

however, gave Edwards one last chance to contact the court, given
her previous family medical emergencies.

The court told Edwards

that, if it received no response by 10:00 a.m. on March 25, 2013,
it would deem the record to be complete and would rule on the

2

motion.

Id.

Having received no response from Edwards, the court

grants the motion.
II.

BACKGROUND.
On May 23, 2012, counsel for Edwards, Eric A. Seitz,

along with others in his office, held a teleconference with
Edwards.

See Declaration of Eric A. Seitz ¶ 7, ECF No. 61.

The

conversation concerned an email Edwards had sent to Ron Jacobs,
ECF No. 43.

This email was damaging to her case because Edwards

appeared to be happy with the book that she now says infringes on
her copyright.

The email indicated that the book had been

published with her permission.

See ECF No. 43.

Edwards gave

Seitz oral authorization during that conversation to settle the
present case.

See Seitz Decl. ¶ 7.

The following day, Seitz sent Edwards a letter
confirming their conversation.

The letter described Seitz’s and

Edwards’s discussion of the damaging email and the likelihood
Edwards would not recover anything if this case proceeded.

The

letter then confirmed Seitz’s suggestion, made during the
conversation on May 23, 2012, that Edwards settle the case.

The

letter then stated that the most likely settlement would be in
the form of an apology and said, “You agreed to this suggestion
and asked that I pursue settlement.”

It notes, “If the foregoing

does not properly set forth our discussion and agreement, please

3

notify me in writing immediately.
all settlement negotiations.”

I will keep you appraised of

See ECF No. 56.

On May 23, 2012, the day of his conversation with
Edwards, Seitz contacted counsel for Trade Publishing, Joachim P.
Cox, suggesting that the parties settle their dispute for a
certain amount, pending approval by Edwards.

See Decl. of

Joachim P. Cox ¶ 4, ECF No. 27-6 at PageID #214, July 10, 2012
(sealed document).
The following day, May 24, 2012, Seitz sent an email to
Cox.

The email stated that Seitz had authority from Edwards to

settle the case “along the lines we discussed yesterday.”

Seitz

told Cox that he wanted to get Edwards a certain amount, but was
willing to go much lower.

See ECF No. 27-6, PageID #225 (sealed

document); ECF No. 44, PageID #363 (redacted version of
document).
Cox responded via email that same day, May 24, 2012,
saying that the settlement discussed was for an amount different
from the amount stated in Seitz’s email of May 24, 2012.

Cox

further stated, “If Ms Edwards is in the position to offer [the
original settlement amount], please make it
receive careful consideration . . . .”

it [sic] will

See ECF No. 27-6, PageID

#224 (sealed document); ECF No. 44 (redacted version of the
document).

Minutes later, Seitz sent Cox an acceptance email.

See id.

4

Minutes after that, Cox responded, stating the terms of
the settlement and seeking confirmation of those terms.

ECF No.

27-6, PageID #223 (sealed document); ECF No. 44, PageID # 361
(redacted version of the document).
Seitz promptly emailed Cox that confirmation, saying
“That is our offer, but I will need to work out a letter with
Jacobs’ counsel as part of a package deal.”
#223.

ECF No. 27-6, PageID

ECF No. 27-6, PageID #223 (sealed document); ECF No. 44,

PageID # 361 (redacted version of the document).
Trade Publishing accepted the settlement offer.

See

Email from Cox to Seitz, May 30, 2012, ECF No. 27-6, PageID #229
(“This email confirms our call this afternoon in which I advised
that Trade accepts plaintiff’s settlement offer”); Cox. Decl.
¶ 7.
On May 31, 2012, Cox sent Seitz a draft settlement
agreement and a stipulated dismissal.

See Cox Decl. ¶ 8.

On June 5, 2012, Seitz told Cox that Seitz had reviewed
the settlement agreement and was forwarding it to Edwards with a
recommendation that she sign it in the “present form.”
Decl. ¶ 10.

See Cox

Trade Publishing signed the Settlement Agreement and

Release that day.

See ECF No, 27-6, PageID # 243; Cox Decl.

¶ 10.
On June 19, 2012, Seitz notified Cox that Edwards was
refusing to sign the settlement agreement.

5

See Cox Decl. ¶ 14;

ECF No. 27-6, PageID # 252.

Cox asked Seitz to let Edwards know

that Trade Publishing would be filing a motion to enforce the
settlement agreement and would be seeking fees and costs for
doing so.

Id.
On June 27, 2012, Cox asked Seitz whether Edwards was

still refusing to sign the settlement agreement.
that she was.
III.

Seitz told Cox

See Cox Decl. ¶¶ 15-16.

ANALYSIS.
It is “well established that the trial court has power

to summarily enforce on motion a settlement agreement entered
into by the litigants while the litigation is pending before it.”
City Equities Anaheim, Ltd. v. Lincoln Plaza Dev. Co., 22 F.3d
954, 957 (9th Cir. 1994).
To determine whether to enforce a settlement agreement,
this court applies state contract law principles.
Bunge Corp., 365 F.3d 820, 822 (9th Cir. 2004).

O’Neil v.

Under Hawaii

law, “Where the evidence in the record shows that all the
essential elements of a contract are present, a compromise
agreement among the parties in litigation may be approved by the
court and cannot be set aside except on grounds that would
justify rescission.”

Miller v. Manuel, 9 Haw. App. 56, 63, 828

P.2d 286, 291 (1991).

Hawaii courts have stated that, “in the

absence of bad faith or fraud, when parties enter into an

6

agreement settling and adjusting a dispute, neither party is
permitted to repudiate it.”

Id.

In determining whether to enforce a settlement
agreement, courts may utilize a procedure analogous to the one
used in determining a motion for summary judgment.
Haw. App. at 64, 828 P.2d at 291.

See Miller, 9

If there is no dispute as to

the existence of a complete settlement agreement, a court may
enforce the agreement.

However, when material facts concerning

the existence or terms of a settlement agreement are in dispute,
a court must hold an evidentiary hearing.

See Doi v. Halekulani,

276 F.3d 1131, 1138 (9th Cir. 2002) (“Where material facts
concerning the existence or terms of an agreement to settle are
in dispute, the parties must be allowed an evidentiary hearing.”
(quotation marks and citation omitted)); Moran v. Guerreiro, 97
Haw. 354, 371, 37 P.3d 603, 620 (Ct. App. 2001) (“If there is a
question of fact as to the existence of a mutual, valid, and
enforceable settlement agreement, an evidentiary hearing must be
held.”); Miller, 9 Haw. App. at 64-65; 828 P.2d at 292.
This court attempted to hold an evidentiary hearing
because Edwards appeared to be disputing that she had agreed to
settle this case.

However, after the hearing was continued

multiple times at Edwards’s request, Edwards still has filed no
written opposition to the motion and has failed to respond to
multiple attempts by the court to confirm that she would appear

7

and present evidence at the scheduled evidentiary hearing.
Having been thwarted by Edwards’s behavior, the court is forced
to rule on the matter without the benefit of an evidentiary
hearing.

Under these circumstances, the court deems Edwards to

have abandoned any previously stated position concerning the
settlement or lack thereof.

The court deems the facts presented

by Trade Publishing and Seitz to be true because they have been
unopposed by Edwards and because there is no admissible evidence
in the record to call their accuracy into question.

Based on the

undisputed facts set forth above, the court finds that the
parties had an enforceable settlement agreement as set forth in
Cox’s email of May 24, 2012.

That is, Edwards and Trade

Publishing agreed to all material terms necessary to settle this
case between them.
The court also determines that, under the circumstances
presented here, no one is disputing that Seitz had sufficient
written authority to settle this matter.

Section 605-7 of Hawaii

Revised Statutes requires attorneys seeking to settle cases to
have “special authority in writing” from the client before doing
so.

In the present case, it is undisputed that Seitz had a

conversation with Edwards in which she orally authorized him to
settle this matter.

Seitz then confirmed that conversation with

a letter, telling Edwards that she should notify him immediately
if Seitz had not properly described their conversation.

8

Because

there is no evidence in the record indicating that Edwards did
not receive that communication, and because Edwards has submitted
no evidence indicating that the written confirmation letter was
incorrect, the court determines that it is undisputed that
section 605-7’s written settlement authority requirement was
substantially satisfied under the limited circumstances presented
here.
IV.

CONCLUSION.
The court grants the motion to enforce settlement

agreement.

Trade Publishing is directed to submit the stipulated

dismissal agreed to by the parties no later than April 10, 2013.
This leaves for adjudication only the claims asserted
against Defendant Ron Jacobs.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 27, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Edwards v. Trade Publishing, Ltd., Civ. No. 12-00023 SOM/BMK; ORDER GRANTING TRADE
PUBLISHING LTD.’S MOTION TO ENFORCE SETTLEMENT AGREEMENT

9