McIntosh v. Arrow-Med Ambulance, Inc.

Filing 122

MEMORANDUM OPINION & ORDER: 1. Relator's 89 MOTION to Enforce Settlement is GRANTED IN PART to the extent that Relator requests summary enforcement of settlement agreement; 2. Dfts SHALL pay to Relator the sum of $120,000; 3. Dft Arrow- Med Ambulance, Herschel Jay Arrowood, and Lesa Arrowood are liable for the amount awarded to Relator; 4. Parties SHALL submit and agreed payment plan W/IN 21 DAYS; 5. Relator's request for addition atty fees is DENIED IN PART W/OUT PREJUDICE. Relator is directed to quantify fees and costs incurred as a result of Dfts' failure to comply w/ settlement; 6. This is a final and appealable order. Signed by Judge Joseph M. Hood on 4/29/2020.(SLH)cc: COR

Case: 5:15-cv-00105-JMH Doc #: 122 Filed: 04/29/20 Page: 1 of 6 - Page ID#: 911

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
UNITED STATES OF AMERICA, ex
rel. DARRELL STEPHEN
McINTOSH,

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Plaintiff,
v.
ARROW-MED AMBULANCE, INC.;
HERSCHEL JAY ARROWOOD; and
LESA ARROWOOD,
Defendants.

Civil Case No.
5:15-CV-105-JMH
MEMORANDUM OPINION
AND ORDER

***
This matter is before the Court on the Relator, Darrell
Stephen

McIntosh’s

“Motion

to

Enforce

Settlement”

[DE

89].

Specifically, Relator requests this Court enforce a settlement
agreement in the amount of one hundred and twenty thousand dollars
($120,000) against Defendants, Arrow-Med Ambulance, Herschel Jay
Arrowood, and Lesa Arrowood (collectively, “Defendants”). Having
considered the matter fully, and being otherwise sufficiently
advised, McIntosh’s motion, [DE 89], will be granted in part and
denied in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
In May 2019, the United States and Defendants negotiated a
settlement of this matter in the amount of $814,617. As part of
the agreement, Defendants consented to an entry of judgment in
favor of the United States against them for violating the False
1

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Claims Act (“FCA”). [DE 87]. The issue of the statutory relator’s
share was reserved for a later determination by the Court. [DE 87
at 2].
Prior to the agreed judgment, Relator executed a separate
settlement agreement with Defendants, which Relator and Defendant
Lesa Arrowood, on behalf of herself and Hershel Arrowood, signed.
[DE 89-2]. Pursuant to this settlement, Defendants promised to pay
Relator $120,000 for attorneys’ fees and expenses awarded under 31
U.S.C. § 3730(d). [DE 89-2]. While this agreement was entered on
May 14, 2019, Defendants had until June 12, 2019 to begin payments
under the agreement. [DE 89-1 at 4; DE 89-2 at 1]. Relator was
subsequently informed, however, that Defendants were unable to
begin payments on time. [DE 89-1 at 4].
On August 21, 2019, Relator filed two motions for awards and
fees under 31 U.S.C. § 3730(d). [DEs 88-89]. First, Relator
requested an award share of $195,508.08, or twenty-four percent of
the $814,617 judgment [DE 88]. The United States responded in
opposition of that amount and instead requested that Relator be
awarded $146,631.06, or eighteen percent. [DE 99]. On January 31,
2020, however, Relator withdrew his Motion, [DE 88], and gave
notice to the Court that he had reached an agreement with the
United States. [DE 118].
In addition, Relator also filed the instant motion. [DE 89].
Here, Relator seeks to enforce the settlement agreement between
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him and Defendants. [DE 89]. Relator indicates that Defendants
have not complied with the terms of the settlement agreement by
their failure to make payments. [Id.]. Consequently, Relator asks
this

Court

to

enforce

the

settlement

agreement,

requiring

Defendants to pay Relator in the amount of $120,000.00, for the
attorneys’ fees provided in their agreement. [DE 89].
II. DISCUSSION
The FCA is the primary statute used by the United States to
recover money lost due to fraudulent claims. 31 U.S.C. §§ 37293733. The FCA includes a qui tam provision, allowing a private
person — a “relator” — to bring a civil action on behalf of the
Government. 31 U.S.C. § 3730(b)(1). The FCA also provides that the
relator is entitled to a share of “the proceeds of the action or
settlement of the claim” and his attorney entitled to “reasonable
attorneys’ fees and costs.” 31 U.S.C. § 3730(d)(1). Moreover,
courts have consistently held that the FCA’s attorney fee-shifting
provision is mandatory. See, e.g., United States ex rel. LeFan v.
G.E. Co., 397 F. App’x 144, 152 (6th Cir. 2010).

As such, Relator

is entitled to an award of reasonable attorneys’ fees, an amount
of which would ordinarily be determined by a showing of costs
incurred. See, e.g., id. at 147-151.
Nevertheless,

Relator

has

moved

to

enforce

a

settlement

agreement entered in contemplation of the amount of attorneys’
fees awarded under the FCA. “It is well established that courts
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retain the inherent power to enforce agreements entered into in
settlement of litigation pending before them.” Bamerilease Capital
Corp. v. Nearburg, 958 F.2d 150, 152 (6th Cir. 1992). Before
enforcing a settlement, courts must conclude that the parties have
agreed to all material terms. RE/MAX Int’l, Inc. v. Realty One,
Inc.,

271

F.3d

633,

645-646

(6th

Cir.

2001).

While

this

is

ordinarily accomplished through an evidentiary hearing, no hearing
is required where “an agreement is clear and unambiguous and no
issue of fact is present.” Meadows v. City of Dry Ridge, No. 1561-DLB-JGW, 2017 WL 2843298, at *2 (E.D. Ky. July 3, 2017)(quoting
RE/MAX Int’l, Inc., 271 F.3d at 646).
“Once

concluded,

a

settlement

agreement

is

as

binding,

conclusive, and final as if it had been incorporated into a
judgment.” RE/MAX Int’l, Inc., 271 F.3d at 650 (citing Clinton St.
Greater Bethlehem Church v. City of Detroit, 484 F.2d 185, 189
(6th Cir. 1973)). As a consequence, courts must uphold settlement
agreements

“whenever

equitable

and

policy

considerations

so

permit.” Henley v. Cuyahoga Cty. Bd. Of Mental Retardation and
Developmental

Disabilities,

141

F.

App’x

437,

442

(6th

Cir.

2005)(citing Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372
(6th Cir. 1976)). Moreover, “[s]ummary enforcement of a settlement
agreement for which there is no dispute as to the terms of the
agreement is the only appropriate judicial response, absent proof
of fraud or duress.” RE/MAX Int’l, Inc., 271 F.3d at 650.
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Here, parties neither request an evidentiary hearing, nor
dispute the validity of the settlement agreement, either by its
material terms or allegations of fraud. [DE 120]. To be sure, in
their response to Relator’s motion, Defendants concede that “a
settlement as described by Relator’s counsel was entered on or
about May 13, 2019, which called for payment to Relator’s counsel
of $120,000.” [Id. at 1]. Instead, Defendants simply indicate an
inability to pay due to the pending receipt of funds in escrow
from the United States. [Id.]. However, lack of funds or ability
to pay is no defense to the enforcement of a settlement or entry
of judgment. Thus, because no dispute exists regarding the entry
into and terms of this settlement agreement, summary enforcement
of the settlement agreement is the only appropriate judicial
response. RE/MAX Int’l, Inc., 271 F.3d at 646, 650.
Accordingly, having reviewed Relator’s motion [DE 89], and
being otherwise sufficiently advised, IT IS ORDERED as follows:
(1)

Relator’s

GRANTED IN PART

Motion

to

Enforce

Settlement

[DE

89]

is

to the extent that Relator requests summary

enforcement of the settlement agreement;
(2)

Defendants SHALL pay to Relator the sum of $120,000 in

accordance with the terms of the settlement agreement [DE 89-2];
(3)

Defendants Arrow-Med Ambulance, Herschel Jay Arrowood,

and Lesa Arrowood are jointly and severally liable for the amount
awarded to Relator;
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(4)

Parties SHALL submit an agreed payment plan with the

Court within twenty-one (21) days of entry of this Order;
(5)

Relator’s request for additional attorneys’ fees and

costs is DENIED IN PART WITHOUT PREJUDICE, to be renewed at a later
time. Relator is directed to quantify the attorney fees and costs
incurred as a result of Defendants’ failure to comply with the
parties’ settlement agreement in any renewed motion for attorneys’
fees; and
(6)

This is a final and appealable order.

This the 29th day of April, 2020.

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