DeBarros v. Areas USA Boston, LLC et al

Filing 51

Judge F. Dennis Saylor, IV: ORDER entered on Plaintiff's Motion for Relief from Order and Request for Leave to Serve 40 and Defendant's Motion to Enforce the Settlement Agreement (FDS, law4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_____________________________________
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ELSON DEBARROS,
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Plaintiff,
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v.
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AREAS USA BOSTON, LLC,
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)
Defendant.
)
_____________________________________)

Civil Action No.
15-14248-FDS

ORDER ON PLAINTIFF’S MOTION FOR RELIEF FROM ORDER AND
REQUEST FOR LEAVE TO SERVE MICHAEL FRANK AND DEFENDANT’S
CROSS-MOTION TO ENFORCE THE SETTLEMENT AGREEMENT
SAYLOR, J.
This is an employment discrimination action. In 2013, plaintiff Elson DeBarros was
terminated from his position as a line and prep cook at Areas USA, LLC. The complaint alleges
three claims for disability discrimination and retaliation arising under the Americans with
Disabilities Act against Areas USA and his former supervisor, Michael Frank. (Compl. at 16).
Pending before the court are (1) plaintiff’s motion for relief from the settlement order of
dismissal and request for leave to serve Michael Frank, and (2) defendant’s cross-motion to
enforce the settlement agreement.
I.

Plaintiff’s Motion for Relief from the Settlement Order of Dismissal and
Defendant’s Cross-Motion for Enforcement of the Settlement Agreement
On January 9, 2017, the Court referred this matter for an alternative dispute resolution

hearing. On March 13, 2017, the parties participated in a mediation facilitated by Senior District
Judge Edward F. Harrington. Plaintiff was present at the mediation and was represented by

counsel. Following the mediation, Judge Harrington reported to the Court that the case had
settled. On March 15, 2017, the Court entered a settlement order of dismissal.1
On April 14, 2017, plaintiff filed a pro se motion for relief from that order. Areas USA
opposes plaintiff’s motion and has cross-moved to enforce the settlement agreement.
At the hearing on these motions, plaintiff argued that he should not be required to honor
the settlement agreement because the proposed amount is insufficient to cover his damages.
However, “[d]efeated expectations” as to the amount of recovery “do not . . . entitle [a] litigant to
repudiate commitments made to opposing parties or to the court.” Petition of Mal de Mer
Fisheries, Inc., 884 F. Supp. 635, 640 (D. Mass. 1995) (quoting Petty v. Timken Corp., 849 F.2d
130, 133 (4th Cir. 1988)). There is no evidence that plaintiff was under duress during the
mediation, that he was fraudulently induced to agree to a settlement, or that the mediation
process was otherwise defective. See Massey v. Stop & Shop Companies, Inc., 1998 Mass. App.
Div. 117 (Dist. Ct. 1998). The fact that the settlement is less than plaintiff hoped to recover does
not justify relief from an otherwise valid agreement.
Nor, as plaintiff contends, should the fact that there is no document memorializing the
agreement render the settlement unenforceable. Under Massachusetts law, “an enforceable
settlement agreement arises when all of the parties to be bound mutually assent to all material
terms, even if those terms are not memorialized in a final writing.” Hansen v. Rhode Island's
Only 24 Hour Truck & Auto Plaza, Inc., 962 F. Supp. 2d 311, 314 (D. Mass. 2013); Petition of
Mal de Mer Fisheries, Inc., 884 F. Supp. at 641. Judge Harrington’s report of settlement
indicates plaintiff’s intent to be bound to an agreement reached at the mediation. Plaintiff does
not seriously dispute this. Instead, at the hearing on these motions he stated that after reaching

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That order contains a typographical error identifying Judge Casper as the judge who entered the order. In
fact, the settlement order of dismissal was entered by the undersigned judge. (Docket No. 39).

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the agreement he “[went] home and ma[d]e a final account” and determined that the amount
“only goes for attorney’s fees basically.” Although the parties agree that the settlement would be
paid to plaintiff, rather than his attorney, plaintiff contends that he is contractually obligated to
make certain payments to counsel. Taking plaintiff’s claims at the hearing as true and drawing
all inferences in his favor, there is no genuine issue that a settlement agreement was reached at
the mediation. Therefore, the settlement agreement is enforceable in the amount agreed upon in
exchange for a release of claims.
Plaintiff further contends that his attorney did not adequately represent his interests in the
mediation and concerning other aspects of this case. Such contentions do not undermine the
enforceability of the agreement he reached. The Court has not been asked to consider and takes
no position as to whether plaintiff has a separate claim for legal malpractice against his attorney.
Accordingly, plaintiff’s motion for relief from the settlement order of dismissal will be
denied, and the cross-motion for enforcement of the settlement agreement filed by Areas USA
will be granted.
II.

Plaintiff’s Motion for Leave to Serve Michael Frank
Plaintiff filed the complaint in this action on December 30, 2015, naming both Areas

USA and Michael Frank as defendants. Plaintiff timely served a summons and copy of the
complaint on Areas USA, but did not serve process on Frank. On April 14, 2017, he filed the
present motion seeking leave to serve Frank with the summons and complaint.
Under Fed. R. Civ. P. 4(m), “[i]f a defendant is not served within 90 days after the
complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service be made within a
specified time.” However, if a plaintiff shows good cause for failing to serve a defendant within

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90 days, “the court must extend the time for service for an appropriate period.” Fed. R. Civ. P.
4(m). More than a year has passed since plaintiff filed the complaint in this action. He now
contends that his failure to serve Frank is due to his former attorney’s inability to find that
defendant’s address. However, he has not shown, as he must, that he was diligent in attempting
to effect service during that period. See Martello v. United States, 133 F. Supp. 3d 338, 344–45
(D. Mass. 2015). In any event, plaintiff’s motion would be futile. There is no individual liability
under Title I of the Americans with Disabilities Act. See Roman-Oliveras v. Puerto Rico Elec.
Power Auth., 655 F.3d 43, 52 (1st Cir. 2011). Therefore, no plausible claim upon which relief
can be granted is pleaded in the complaint against Frank.
Accordingly, the motion for leave to serve Michael Frank will be denied.
III.

Conclusion
Plaintiff’s motion for relief from the settlement order of dismissal and request for leave to

serve Michael Frank is DENIED. Defendant’s motion for enforcement of the settlement
agreement is GRANTED.

So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: July 25, 2017

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