Black Jaguar, White Tiger, Foundation et al v. Tiffany et al

Filing 51

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Plaintiff's Motion to Enforce Settlement and to Compel Andrea Tiffany to Sign Retraction Letter (Docket Entry # 35 ). This court will conduct a status conference on August 19, 2019 at 12:15 p.m. (Patton, Christine)

Case 1:18-cv-10987-MLW Document 51 Filed 08/01/19 Page 1 of 9

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BLACK JAGUAR, WHITE
TIGER, FOUNDATION,
and EDUARDO SERIO,
Plaintiffs,
v.

CIVIL ACTION NO.
18-10987-MLW

ANDREA TIFFANY and
DOES 1-20,
Defendants.
MEMORANDUM AND ORDER RE:
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AND TO
COMPEL ANDREA TIFFANY TO SIGN RETRACTION LETTER
(DOCKET ENTRY # 35)
August 1, 2019
BOWLER, U.S.M.J.
Pending before this court is a motion to enforce a
settlement agreement and to compel defendant Andrea Tiffany
(“defendant”) to sign a retraction letter filed by plaintiff
Black Jaguar, White Tiger, Foundation (“BJWT”) and plaintiff
Eduardo Serio (collectively “plaintiffs”).1
Defendant opposes the motion.

(Docket Entry # 35).

(Docket Entry # 44).

After

listening to oral argument, this court took the motion (Docket
Entry # 35) under advisement.
BACKGROUND
Plaintiffs filed this action in May 2018 alleging that

1

Although the punctuation of BJWT is taken from the
caption of the complaint, the punctuation of BJWT varies in the
complaint.

Case 1:18-cv-10987-MLW Document 51 Filed 08/01/19 Page 2 of 9

defendant and unidentified individuals published numerous false
and malicious statements of fact about plaintiffs on various
social media platforms.

Based on diversity jurisdiction, they

assert state law claims for defamation and tortious interference
with actual and prospective business relationships.

(Docket

Entry # 1).
At a February 6, 2019 status conference, the issue of a
possibility of settlement arose.

After a recess to allow

defendant to speak to her counsel, the parties returned to the
courtroom and plaintiffs’ counsel suggested reading terms of a
settlement reached by the parties into the record.2

Immediately

before plaintiffs’ counsel read the terms into the record,
defendant asked if she had to agree to the settlement “right
now,” to which this court responded that plaintiffs’ counsel is
2

Two days prior to the hearing, this court allowed
defendant’s counsel motion to withdraw as counsel. The December
2018 motion explained he “was hired to attempt to settle this
matter quickly” and, “[n]ow that settlement discussions have
ended without a resolution, Defendant has decided to represent
herself in this matter.” (Docket Entry # 20). Also two days
prior to the hearing, defendant’s counsel filed a motion to make
a limited appearance to file objections to a pending motion to
compel. (Docket Entry # 27). This court allowed the motion
prior to the hearing prior but noted at the hearing that
plaintiffs’ counsel did not have an opportunity to object to the
limited appearance. (Docket Entry # 48, pp. 2-3). Defendant’s
counsel described his status at the hearing as being to argue the
pending motion to compel and to try and facilitate settlement
negotiations “for the Court and for the parties.” (Docket Entry
# 48, p. 4). Later during the hearing, this court allowed
defendant’s counsel “limited appearance since we seem to be on
track at the moment,” i.e., with a settlement. (Docket Entry #
48, p. 18).
2

Case 1:18-cv-10987-MLW Document 51 Filed 08/01/19 Page 3 of 9

“going to dictate the terms.

Then they will be reduced to

writing . . . [a]nd then you will have the opportunity to review
it with your counsel and sign.”

(Docket Entry # 48, p. 14).

Plaintiffs’ counsel then proceeded to read certain terms of the
purported settlement into the record, including that defendant
“will execute a correction/retraction letter which my clients
will be free to use to attempt to restore their reputation to the
extent necessary.”

(Docket Entry # 48, p. 15).

After reading

various terms into the record, defendant stated that she
understood the terms.

(Docket Entry # 48, p. 19).

When asked if

she understood that “this will be the substance of the
agreement,” the following exchange took place:
The Defendant: Yes. I mean, there’s a little detail that I
think will get worked out later, but I understand.
The Court:

And what is that?

The Defendant: The letter and stuff like this. I don’t
really understand what they’re wanting with this.
[Defendant’s Counsel]: The details of the settlement will
be worked out in a written Settlement Agreement . . .
The Court: So do you understand all of the terms that have
been set forth today?
The Defendant: Yes. I would like to see them in writing
though. I’m not good verbally hearing things. I need to
visually see it.
(Docket Entry # 48, pp. 19-20).
On February 28, 2019, this court convened a second status
conference during which the dispute regarding the content of the
3

Case 1:18-cv-10987-MLW Document 51 Filed 08/01/19 Page 4 of 9

retraction letter continued.

Plaintiffs’ counsel stated his

clients needed the retraction letter to accept a settlement that
had no money thus indicating the materiality of the retraction
letter.

(Docket Entry # 49, p. 19).

At the conclusion of the

conference, this court gave defendant two weeks to write a
retraction letter and set a further hearing to determine if
plaintiffs could “live with that statement.”
pp. 27-28).

Plaintiffs’ counsel agreed.

(Docket Entry # 49,

(Docket Entry # 49, p.

28).
In a March 14, 2019 email to plaintiffs’ counsel,
defendant’s counsel attached a letter stating that defendant “has
agreed to sign” the letter (henceforth, “March 14 retraction
letter”).

(Docket Entry # 35-4).

Plaintiffs’ counsel responded

by email the following day that the March 14 retraction letter
was acceptable except for a typographical error in the spelling
of plaintiff Eduardo Serio’s name.

(Docket Entry # 35-5).

In a

reply email, defendant’s counsel attached a corrected version of
the March 14 retraction letter, stated he would ask defendant to
sign the final settlement agreement, and thanked plaintiffs’
counsel for his “help in resolving this matter.”
35-6).

(Docket Entry #

Plaintiffs’ counsel forwarded an executed version of the

settlement agreement to defendant’s counsel on March 18.

Like

other versions, it contains the following language regarding the
retraction letter:
4

Case 1:18-cv-10987-MLW Document 51 Filed 08/01/19 Page 5 of 9

5. Retraction Letter
Tiffany shall execute the letter attached hereto as
Exhibit B. Tiffany agrees and understands that the BJWT
Parties may publish the letter in their sole discretion to
any third party and that the publication of the letter shall
not constitute a violation of this Agreement. Tiffany
further agrees that she will make no public comment about
the letter once it is signed. For purposes of this
Paragraph, “no public comment” shall restrict Tiffany from
making statements on social media, regardless of whether the
statement is published on a non-public social media account.
She will not claim, suggest or imply that she was coerced or
pressured into signing the letter and/or that her signature
on the letter is inauthentic.
(Docket Entry # 35-7, ¶ 5) (“paragraph five”) (bolding omitted).
Thereafter, defendant refused to sign the settlement
agreement.

At the further hearing on March 21, 2019, defendant

stated she “actually never agreed to settlement.

I said I

understood the terms you guys want me to sign on.”
# 38, p. 5).

(Docket Entry

When this court advised her that she had the

benefit of counsel to explain the terms of the settlement and
that this court repeatedly asked if she understood those terms,
defendant replied that “[u]nderstanding is different from
agreeing, I guess.

I don’t know what else to say.”

Entry # 38, p. 6) (emphasis added).

(Docket

Defendant then provided a

different retraction letter and signed the settlement agreement
(which included paragraph five) with this retraction letter,
subject to plaintiffs finding this new retraction letter
acceptable.

(Docket Entry # 38, pp. 9-12).

In the event

plaintiffs did not accept the new retraction letter, this court
5

Case 1:18-cv-10987-MLW Document 51 Filed 08/01/19 Page 6 of 9

advised defendant she would need to file an opposition to the
motion to enforce the settlement.

(Docket Entry # 38, pp. 12-

13).
It is apparent that the new retraction letter was not
acceptable to plaintiffs because defendant filed an opposition to
the motion to enforce.

(Docket Entry # 44).

Defendant states in

the opposition that “[f]eeling my life is in danger has put undue
pressure on me to agree to a settlement.”
1).

(Docket Entry # 44, p.

Defendant submits her attorney did not instruct her to read

the settlement, “only to sign it.”

(Docket Entry # 44, p. 1).

She further states she did not give her “informed consent” for
the settlement and asserts the settlement is “void due to the
lack of contract,” in other words, that the parties never came to
an agreement.

(Docket Entry # 44, pp. 1, 8).

She also expressed

a belief that “no documents would be made public.”

(Docket Entry

# 44, p. 1).
DISCUSSION
This court “may summarily enforce” a settlement “agreement,
provided that there is no genuinely disputed question of material
fact regarding the existence or terms of that agreement.”

Fid.

and Guar. Ins. Co. v. Star Equip. Corp., 541 F.3d 1, 5 (1st Cir.
2008).

Conversely stated, “‘“a trial court may not summarily

enforce a settlement agreement”’ if material facts are in dispute
as to the validity or terms of the agreement.”
6

Bandera v. City

Case 1:18-cv-10987-MLW Document 51 Filed 08/01/19 Page 7 of 9

of Quincy, 344 F.3d 47, 52 (1st Cir. 2003) (quoting Malave v.
Carney Hosp., 170 F.3d 217, 220 (1st Cir. 1999)) (emphasis
added).

In the event “‘a genuinely disputed question of material

fact’” does exist as to validity or the material terms of a
purported settlement, an evidentiary hearing is warranted to
resolve the contested factual issues.

Id. at 50, 52 (citation

omitted).
Where, as here, diversity jurisdiction provides the basis to
adjudicate the claims (all of which arise under state law),
Massachusetts law governs the validity and the terms of the
purported settlement agreement.

See In re Volkswagen & Audi

Warranty Extension Litig., 692 F.3d 4, 15 (1st Cir. 2012) (“As a
general matter, ‘interpreting settlement agreements and their
scope is a matter of state contract law.’”) (internal brackets
and citations omitted).

In fact, the purported settlement

agreement includes a provision that Massachusetts law applies.
(Docket Entry # 35-8, p. 10).
In Massachusetts, “[a]n enforceable agreement requires (1)
terms sufficiently complete and definite, and (2) a present
intent of the parties at the time of formation to be bound by
those terms.”

Targus Grp. Int’l, Inc. v. Sherman, 922 N.E.2d

841, 848 (Mass. App. Ct. 2010); accord Situation Mgmt. Sys., Inc.
v. Malouf, Inc., 724 N.E.2d 699, 703 (Mass. 2000).

For example,

when parties to settlement negotiations could not agree upon the
7

Case 1:18-cv-10987-MLW Document 51 Filed 08/01/19 Page 8 of 9

scope a release, which was the main value of the proposed
settlement for one of the parties, the court in United States ex
rel. Allen v. Alere Home Monitoring, Inc., 355 F. Supp. 3d 18, 25
(D. Mass. 2019), concluded there was no agreement upon the
material terms.

As explained in Allen:

the record demonstrates that the three parties to the
settlement negotiations had not and could not mutually agree
to the scope of the release. Because the release was a
material term, there was no enforceable agreement. This was
simply not a circumstance where the parties had “agreed upon
all material terms,” such that the purpose of a final
executed document was “to serve as a polished memorandum of
an already binding contract.” Goren v. Royal Invs. Inc., 25
Mass.App.Ct. 137, 516 N.E.2d 173, 175 (1987). As a result,
Relator’s reliance on Fecteau Benefits Group., Inc. v. Knox,
72 Mass.App.Ct. 204, 890 N.E.2d 138, 145-46 (2008), is
inapt.
Id.
Here too, the retraction letter is a material term of the
purported settlement and a material issue exists regarding
whether defendant understood and agreed the March 14 retraction
letter could be made public.

Even recognizing that defendant’s

counsel thanked plaintiffs’ counsel for his “help in resolving
this matter” (Docket Entry # 35-7), it nevertheless remains a
material issue of fact as to whether defendant had a present
intent to be bound by paragraph five of the proposed settlement
agreement at and around the time her counsel sent the email
stating that defendant agreed to sign the March 14 retraction
letter.

(Docket Entry # 35-4).

Additional facts are also needed

to address the asserted undue pressure or implication of
8

Case 1:18-cv-10987-MLW Document 51 Filed 08/01/19 Page 9 of 9

coercion.

See Fid. and Guar. Ins. Co. v. Star Equip. Corp., 541

F.3d at 6 (upholding enforcement of settlement while noting that
opposing parties did not claim “they were coerced into signing
the agreement or that their counsel settled their claim without
authority”); accord Bandera v. City of Quincy, 344 F.3d at 52
(noting “one might need more facts, as well as briefing” to
address issues surrounding coercion).

Moreover, in lieu of

instructing defendant to read the settlement, defendant’s
attorney told her to sign it, according to defendant.
Entry # 44).

(Docket

Although she expressed an understanding of the

terms read into the record, it is a material issue whether she
understood and agreed that her signature was not required to make
the agreement final at and around the time her counsel emailed
the March 14 retraction letter.

In light of these material

issues of fact, an evidentiary hearing is needed.

Because of

defendant’s pro se status, this court will convene a status
conference to address the procedure for such a hearing and any
alternative, such as addressing the motion to compel and moving
forward with discovery in an expeditious manner.
CONCLUSION
In accordance with the foregoing discussion, this court will
conduct a status conference on August 19, 2019 at 12:15 p.m.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
9