Silver v. Means et al
MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 7/19/2021.(rbf, )
Case: 1:21-cv-00127 Document #: 65 Filed: 07/19/21 Page 1 of 7 PageID #:353
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
FREDERICK O. SILVER, on behalf
of himself and all others similarly
JONATHAN MEANS, RICH CHRISTENSEN, )
TODD GILMAN, and STAFF MANAGEMENT )
No. 21 C 127
Judge Rebecca R. Pallmeyer
Defendants Staff Management Solutions, LLC, Jonathan Means, Rich Christensen, and
Todd Gilman move to enforce a settlement agreement reached by the parties on an April 30, 2021
telephone call. For the following reasons, the Defendants’ motion is granted, and the case is
dismissed with prejudice. Consistent with the parties’ oral agreement, Defendants are instructed,
within 7 days, to furnish a document memorializing the terms of the settlement agreement that
omits Plaintiff’s Social Security number.
Magistrate Judge Kim presided over a settlement conference in this case on April 30, 2021
and, in a Report and Recommendation, has set forth facts that support his conclusion that the
agreement reached at that time should be enforced. (Report and Recommendation [hereinafter,
Briefly, Plaintiff Frederick O. Silver, a former employee of Defendant Staff
Management Solutions, LLC, filed this action against Staff Management Solutions and three of
its directors, alleging that by complying with a Nevada state court wage garnishment order,
Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, the Texas Finance
Code Chapter 392, and his right to be free from unreasonable and wrongful collections under Texas
common law. After multiple days of negotiations, Magistrate Judge Kim conducted a settlement
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conference on April 30, 2021 and entered an order  at its conclusion, confirming that the
parties had reached a resolution. The April 30 conference was transcribed and is filed under seal,
(SEALED April 30, 2021 Tr. .) In his April 30 order, Judge Kim directed Defendants to email
the finalized written agreement to Plaintiff by May 3, 2021. When Defendants sent the agreement
to Plaintiff on May 3, Plaintiff refused to sign it, claiming the parties “were NOT able to resolve
this matter” in their settlement discussions. (Mot. to Reinstate  at 2.) Defendants then filed a
motion to enforce  the verbal settlement reached by the parties in open court. On June 7,
2021, Magistrate Judge Kim issued his R&R , recommending that the court grant Defendants’
motion to enforce the settlement agreement.
On June 14, June 17, and June 21, 2021, Silver filed objections [56–58] to Magistrate
Judge Kim’s recommendation. Silver claims that there was no enforceable deal because he never
signed the written draft agreement emailed to him by the Defendants and because Defendants’
counsel lacked authority to make such an agreement without the Defendants themselves present.
Plaintiff also argued that any determination of whether a settlement was reached should be made
under Texas law because of his claims arising out of Chapter 392 of the Texas Finance Code and
the Texas common law right to be free from unreasonable and wrongful collections. Finally,
Plaintiff claimed that Defendants had defrauded him by including his Social Security number in
the settlement document despite earlier assurances that they would exclude the number from any
document memorializing the agreement.
Where a party timely objects to a magistrate’s recommendation on a dispositive matter,
the district court reviews that recommendation de novo. FED R. CIV. P. 72(b)(3). For the purposes
of a magistrate’s recommendation, motions to enforce settlement agreements are considered
dispositive motions and thus warrant de novo review. See Svanaco, Inc., v. Brand, No. 15-cv11639, 2021 WL 2526234, at *3 (N.D. Ill. June 21, 2021) (“[Plaintiff]’s motion to enforce the
settlement is dispositive of the parties’ claims and therefore [the resulting report and
recommendation] must be reviewed de novo.”); see also Thompson v. ATG Credit, LLC, No. 18
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C 1992, 2018 WL 4517676, at *6 (N.D. Ill. July 17, 2018) (affording de novo review to a report
and recommendation surrounding a settlement agreement “because the referred matter is
determinative of [defendant]’s defense”). In conducting de novo review, the court is called upon
to “decide the case based on an independent review of the evidence and arguments without giving
any presumptive weight to the magistrate judge’s conclusion.”
Mendez v. Republic Bank,
725 F.3d 651, 661 (7th Cir. 2013). The district court may, however, “be persuaded by the
reasoning of a magistrate judge . . . while still engaging in an independent decision-making
process.” Id. After conducting its review, a district court may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
First, the court examines whether, in a settlement conference before the magistrate judge
in open court, the parties verbally reached an enforceable agreement. State law governs this
question. Lynch, Inc. v. SamataMason Inc., 279 F.3d 487, 490 (7th Cir. 2002) (collecting cases).
In making his recommendation, Magistrate Judge Kim applied Illinois state law, noting
Defendants’ assumption that Illinois law applied, as well as Plaintiff’s failure to challenge that
assumption. (R&R at 5.) Plaintiff claims that he did challenge Defendants’ assumption before
Judge Kim made his recommendation, arguing that Texas contract law should apply due to his
Texas statutory and common law claims. Plaintiff does not indicate in what ways, if any, Texas
contract law materially differs from Illinois contract law. Regardless, Judge Kim was correct on
this score; Illinois law applies because “[i]ssues regarding the formation, construction, and
enforceability of a settlement agreement are governed by local contract law.” Pohl v. United
Airlines, Inc., 213 F.3d 336, 338 (7th Cir. 2000) (emphasis added).
Indeed, a settlement
agreement “is enforced, ‘just like any other contract’ under the state law of contract.” Holmes v.
Potter, 552 F.3d 536, 539 (7th Cir. 2008) (quoting Dillard v. Starcon Int'l, 483 F.3d 502, 508 (7th
Cir. 2007)). Although this settlement conference took place over the phone, it was hosted by a
magistrate judge sitting in Illinois, regarding a suit filed in the Northern District of Illinois, so it is
Illinois contract law that applies in determining whether a binding contract was formed. See Pohl,
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213 F.3d at 338 (applying Indiana contract law to determine if an enforceable agreement had
been formed to settle a case in the Southern District of Indiana); see also Laserage Tech. Corp. v.
Laserage Lab’ys, Inc., 972 F.2d 799, 802 (7th Cir. 1992) (looking to Illinois contract law for
guidance in determining whether an enforceable agreement had been formed to settle a case in
the Northern District of Illinois).
Under Illinois law, oral settlement agreements are enforceable where “there is clearly an
offer and acceptance of the compromise and a meeting of the minds as to the terms of the
agreement.” Dillard, 483 F.3d at 507 (internal quotations omitted). The essential terms of the
agreement “must be ‘definite and certain’ so that a court can ascertain the parties' agreement
from the stated terms and provisions.” Id. (quoting Quinlan v. Stouffe, 355 Ill. App. 3d 830, 837–
38, 823 N.E.2d 597, 603 (4th Dist. 2005)). It is the parties’ “objective conduct, not their subjective
beliefs” that determines whether the requisite “meeting of the minds” occurred. Dillard, 483 F.3d
at 507 (citing Paxton-Buckley-Loda Educ. Ass'n, IEA-NEA v. Ill. Educ. Lab. Rels. Bd., 304 Ill.
App. 3d 343, 350, 710 N.E.2d 538, 544 (4th Dist. 1999)).
The history recounted in Magistrate Judge Kim’s R&R confirms that the parties in this case
reached an enforceable oral agreement at the settlement conference. (See R&R at 1–4.) With
Judge Kim’s participation, the parties reached specific agreements as to the monetary amount
Defendants would pay Plaintiff (id. at 1–2), the fact that Plaintiff’s personal information would be
read into the sealed record rather than written into the settlement agreement (id. at 2–3), the fact
that Defendants would pay Plaintiff’s costs (id. at 4), and other non-monetary terms. (Id. at 2.)
Plaintiff now contests the monetary term; he claims he refused to accept anything below $8,000,
but Plaintiff verbally agreed to the monetary term in an April 29, 2021 settlement discussion, and
did not say that the term was unacceptable to him in the April 30, 2021 phone call the next day,
despite Judge Kim mentioning the agreed-upon money amount on five separate occasions
throughout that call. (See generally SEALED April 30, 2021 Tr.) Similarly, Plaintiff did not object
when Judge Kim confirmed in an April 29, 2021 order  that the parties had reached a
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settlement agreement that day as to the monetary term and other collateral non-monetary terms;
nor did Plaintiff object when Judge Kim issued another order  on April 30, 2021, stating that
the parties had resolved the matter. Moreover, toward the end of the April 30, 2021 phone call,
Judge Kim stated, “So with that, we do have a settlement,” and later—before terminating the
call—Judge Kim asked, “Anything else for me, Mr. Silver?” to which Silver replied, “No, Judge.” 1
(SEALED April 30, 2021 Tr. at 11, 13.) At no point did Silver express disagreement with Judge
Kim’s statement that the parties had reached a settlement agreement. Based on Plaintiff’s
“objective conduct,” the court adopts the magistrate report’s reasoning and finds that there was
“clearly an offer and acceptance . . . and a meeting of the minds” necessary to form an
enforceable settlement agreement on April 30, 2021. Dillard, 483 F.3d at 507.
Plaintiff contends the agreement is somehow rendered unenforceable by the fact that the
individual Defendants did not directly participate in the settlement conference.
themselves, however, do not dispute that their attorney had authority to settle on the terms set
forth in the agreement. See Brewer v. Nat'l R.R. Passenger Corp., 165 Ill. 2d 100, 106, 649
N.E.2d 1331, 1334 (1995) (“[T]he existence of the attorney of record's authority to settle in open
court is presumed unless rebutted by affirmative evidence that authority is lacking.” (emphasis in
original) (internal quotations omitted)); cf. Fuery v. City of Chicago, 900 F.3d 450, 467 (7th Cir.
2018) (“The clients are principals, the attorney is an agent, and under the law of agency the
principal is bound by his chosen agent's deeds.”). More importantly, even if Defendants’ attorney
lacked authority to settle, where, as here, the parties reach a settlement agreement in open court,
this issue of attorney authority to settle cannot “be raised later to create a material question of fact
After Judge Kim said, “So with that, we do have a settlement,” Silver did mention
that he had “one more thing to add,” which was to ask that Defendants cover the costs he had
incurred in filing the lawsuit. (SEALED April 30, 2021 Tr. at 11–12.) This request, however, was
granted by Defendants, and Judge Kim then asked Silver, before hanging up, whether Silver had
any other requests. (Id. at 12–13.) Silver had none and in no way indicated any objection to
Judge Kim’s previous statement that the parties had reached a settlement agreement.
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regarding the validity of that settlement reached in open court.” Wilson v. Wilson, 46 F.3d 660,
665 (7th Cir. 1995).
Silver also contends that the settlement agreement is not admissible because the
agreement has not been admitted through a competent witness with an affidavit.
Objections  at 2.) It is undisputed, however, that the agreement has not been signed by both
sides. Defendants are not arguing otherwise, nor are they offering it in evidence. They contend
that the parties reached an oral agreement, and that the written document would have
memorialized it. Its admissibility is not an issue on this motion. Additionally, Silver challenges
Magistrate Judge Kim’s jurisdiction to deny his request for reinstatement of a previous court order
requiring the defendants to file a responsive pleading by April 16, 2021. (Suppl. Objections 1
.) The parties’ agreement to settle the case eliminates the need for Defendants to file a
responsive pleading. Judge Kim acted properly in declining to reinstate previous orders.
Lastly, Silver argues Defendants’ counsel committed fraud by intentionally including
Plaintiff’s Social Security number in the draft agreement that Defendants sent Plaintiff on May 3,
2021. (Suppl. Objections 2 .) Nothing about this purported fraud defeats the conclusion that
the parties entered into a valid oral contract. That contract is enforceable whether or not it was
memorialized in writing. In any event, the document Defendants prepared to that end  was
filed with this court under seal, so it is not accessible to the public and there is no risk of disclosure
of Plaintiff’s private information. That said, the court recognizes that, in the April 30, 2021 phone
call, Silver made clear—in no uncertain terms—that he would not agree to settle unless
Defendants could assure him that his Social Security number would not appear on any document
memorializing the settlement agreement. (SEALED April 30, 2021 Tr. at 3–4, 6–9.) Defendants
inclusion of that information is puzzling (see SEALED May 3, 2021 Agreement  at 2 ¶ 5), but
it does not constitute fraud. See Bower v. Jones, 978 F.2d 1004, 1012 (7th Cir. 1992) (“[An unkept
promise alone] is insufficient to make out a claim of promissory fraud, since there is no proof that
the defendants made the promise never intending to keep it.”).
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In light of the manifest importance to Silver of keeping his Social Security number off of
any document memorializing the settlement agreement, the court directs Defendants to send
Silver a revised version of the settlement agreement within 7 days, together with the settlement
check. Because the parties voluntarily agreed to settle this case in open court, Plaintiff cannot
repudiate the agreement and it will be “summarily enforced by the court.” Wilson, 46 F.3d at 667
(quoting Cummins Diesel Mich., Inc. v. The Falcon, 305 F.2d 721, 723 (7th Cir. 1962)).
Defendants’ motion to enforce the settlement agreement is granted. Defendants are
directed promptly to send Plaintiff a check in the amount to which the parties agreed and a revised
document memorializing the agreement that excludes Plaintiff’s Social Security number. The
case is dismissed with prejudice. Civil case terminated.
Dated: July 19, 2021
REBECCA R. PALLMEYER
United States District Judge
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