McCormack v. Westland et al

Filing 90

AMENDED ORDER (1) Granting Westland Defendants' 76 MOTION To Enforce Settlement, (2) Granting Highland Landscape Defendants' 77 MOTION to Enforce Settlement, (3) Denying Plaintiff's 78 Motion re Proposed Oral Settlement After the Court Entered an Order Finding Defendants Violated Plaintiff's Rights, and (4) Requiring Plaintiff to Execute Necessary Settlement Documents. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARIA MCCORMACK,
Plaintiff,

Case No. 15-cv-14507
Hon. Matthew F. Leitman

v.
CITY OF WESTLAND, et al.,
Defendants.
_________________________________/
AMENDED ORDER (1) GRANTING WESTLAND DEFENDANTS’
MOTION TO ENFORCE SETTLEMENT (ECF #76), (2) GRANTING
HIGHLAND LANDSCAPE DEFENDANTS’ MOTION TO ENFORCE
SETTLEMENT (ECF #77), (3) DENYING PLAINTIFF’S MOTION RE
PROPOSED ORAL SETTLEMENT AFTER THE COURT ENTERED AN
ORDER FINDING DEFENDANTS VIOLATED PLAINTIFF’S RIGHTS
(ECF #78), AND (4) REQUIRING PLAINTIFF TO EXECUTE NECESSARY
SETTLEMENT DOCUMENTS1
This is a civil action under 42 U.S.C. § 1983. Plaintiff Maria McCormack
(“Plaintiff”) has asserted claims against the City of Westland, the Wayne Westland
Fire Association, Highland Landscape and Snowplowing, and a number of
individually-named defendants (collectively, the “Defendants”). Plaintiff alleges

1

In the original Order disposing of these motions, the Court noted that Plaintiff had
not filed a response to the Highland Landscaping Defendants’ motion to enforce
settlement. (See Order, ECF #88 at Pg. ID 1127.) Following the entry of the original
Order, the Clerk of the Court entered Plaintiff’s response onto the docket. This
Amended Order updates the original Order to reflect receipt of Plaintiff’s response
to the Highland Landscaping Defendants’ motion to enforce settlement and to
address Plaintiff’s primary contention in that response.
1

that the Defendants unlawfully entered onto her real property and then took and/or
damaged her personal property. (See Am. Compl., ECF #32.)
On October 17, 2017, the parties participated in a settlement conference
conducted by the Court. (See Oct. 17, 2017 Conf. Tr., ECF #66.) At the conclusion
of the conference, the parties reached an agreement to settle the case, and they placed
that agreement on the record. (See id.) Counsel for the parties then proceeded to
memorialize the agreement in two formal written settlement agreements – one
between Plaintiff and the Westland Defendants2 and another between Plaintiff and
the Highland Landscaping Defendants.3 Plaintiff’s counsel at the time was satisfied
with the form of both agreements, but Plaintiff now refuses to execute the
agreements and to honor the agreed-upon terms.
As a result, the Westland Defendants have filed a motion to enforce the
October 17, 2017, settlement. (See ECF #76.) Likewise, the Highland Landscaping
Defendants have filed a motion to enforce the October 17, 2017, settlement. (See
ECF #77.) In response, Plaintiff has filed her own motion in which she asks the
Court to hold at least certain terms of the settlement unenforceable. (See ECF #78.)
For the reasons explained below, the Court GRANTS the Westland Defendants’

2

The Westland Defendants are Defendants Officer Abramski, Brenn Dohring, Kelly
Eggers, Tom Lutkenhoff, Chris Szpara, Wayne Westland Fire Association, City of
Westland, and Tim Wilson.
3
The Highland Landscaping Defendants are Defendants Highland Landscape and
Snowplowing, Jeff Speaks, Gage Speaks, Alfredo Vega, and Jose Vega.
2

motion, GRANTS the Highland Landscape Defendants’ motion, and DENIES
Plaintiff’s motion.4
I
A
Plaintiff lives in the City of Westland, Michigan. She does not get along with
her next door neighbors, the Meads. Due in part to her conflict with them, she hung
tarps along the fence that separates her yard from theirs.

Thereafter, certain

employees of the City of Westland and of Highland Landscape & Snowplowing
entered onto Plaintiff’s property without a warrant and removed some of the tarps.
On December 31, 2015, Plaintiff filed this action under 42 U.S.C. § 1983. She
alleges, among other things, that the Defendants violated her rights under the Fourth
and Fourteenth Amendments. (See Compl., ECF #1; Am. Compl., ECF #32.)
Following substantial discovery, Plaintiff moved for summary judgment on her
claim that the Defendants violated her rights under the Fourth Amendment. (See
ECF #40.) In an Order dated August 10, 2017, the Court granted summary judgment
in favor of Plaintiff (on liability only) against a number of the Defendants. (See ECF
#60.)

4

The Court has determined that it may properly resolve each of the motions without
a hearing. See L.R. 7.1(f).
3

B
On October 17, 2017, the Court held a settlement conference in this action.
Plaintiff attended along with her retained counsel.

Representatives of the

Defendants also attended with retained counsel.
The Court began the conference by confirming with the parties that they
wished to have the Court (as opposed to some other judicial officer or private
mediator) conduct the settlement conference. (See Oct. 17, 2017 Conf. Tr. at 5-7,
ECF #66 at Pg. ID 871-73.) The Court then described its “judicial approach” to
settlement. (Id. at 8, Pg. ID 874.) The Court explained that it would meet separately
with each side, during which it would provide a “neutral detached person’s view” of
the case and “share with [each side] the reasons I think you should settle.” (Id.) The
Court obtained each party’s consent to the settlement process it described. (See id.
at 6-7, 9-10, Pg. ID 872-73, 875-76.)
The Court also explained to the parties that, in its experience, settlements are
achieved when both sides are unhappy with at least some aspects of the agreement:
Lastly, what I want to say is a word to the non-lawyers
here, Ms. McCormack and the folks sitting in the back,
about my experience in terms of where cases settle. Cases
don’t settle when one side feels really good about the
results because if one side feels really good and is really
happy about the amount of money they got or the amount
of money they paid, then the other side is not happy, and
settlements happen, in my experience, when each side is
equally unhappy. Cases settle when the plaintiff feels like
4

he or she did not get enough and the defendant feels like
he or she paid too much.
So if anybody in here is thinking that are going to walk out
of here feeling great with a settlement is, in my view, not
being realistic about how cases settle. They settle where
neither side feels great because each side has taken into
account the risks and benefits of litigation. So what I’m
going to work for is a resolution that is fair to both parties,
that nobody loves, but that everybody says is a sensible
resolution of this dispute.
(Id. at 9, Pg. ID 875.)
The Court then met with each side and their lawyers in separate rooms. The
conversations were at times stressful and animated. But with hard work and careful
consideration, the parties reached an agreement after several hours of negotiations.
The parties then reconvened on the record. The Court recited the material terms of
the agreement reached by the parties on the record:
 The Westland Defendants would pay Plaintiff $94,500, and the
Highland Landscape Defendants would pay Plaintiff a settlement
amount (see id. at 13, Pg. ID 879);
 The Westland Defendants would arrange for and provide the
installation of a privacy fence separating Plaintiff’s property from her
neighbors’ property (see id.);
 The Westland Defendants and Plaintiff would consult over the type of
fence to be installed. Any unresolved disputes over the fence to be
installed would be presented to the Court, and the Court would
“conclusively decide on the fence to be installed” (see id.);
 The City of Westland would designate a particular city employee to be
the contact person for Plaintiff for any questions or concerns about
ordinance enforcement (see id.);
5

 The City of Westland would designate a particular city employee to be
the contact person for any other disputes she may have with the City
(see id. at 13-14, Pg. ID 879-80);
 Plaintiff would release her claims that she asserted or could have
asserted against the Defendants (see id. at 14, Pg. ID 880);
 The parties would memorialize their agreement in writing (see id. at 1415, Pg. ID 880-81); and
 If and to the extent there were “any disputes [between the parties] over
the effort to reduce the agreed-upon terms to writing, the disputes
[would] be presented to [the Court] and [the Court would] make the
final determination of which language appropriately captures the terms
on which the parties have agreed.” (Id.)
After the Court announced these terms on the record, it had the following
exchange with Plaintiff and her attorney, Elizabeth Downey:
THE COURT:
. . . I believe that I have identified all
of the terms of the agreement, but let me ask you, Ms.
Downey, first of all, do you agree with the terms as I have
stated them?
MS. DOWNEY: Yes, Your Honor, we agree with those
terms, and we rely on the city’s good faith to get [city]
council moving on this, and we will cooperate in the
drafting of the agreements.
THE COURT:
Thank you.
All right.
Ms.
McCormack, let me ask you directly, did you hear the
terms that I just orally announced here in open court?
MS. McCORMACK:

Yes, I did.

THE COURT:
And do those terms accurately reflect
the terms to which you have agreed?
6

MS. McCORMACK:

Yes.

(Id. at 15, Pg. ID 881; emphasis added.) Defense counsel then also confirmed that
the terms announced by the Court were accurate and were agreed upon. (See id. at
15-19, Pg. ID 881-85.)
Counsel for the Westland Defendants and counsel for the Highland
Landscaping Defendants then both stated on the record that, in order for Plaintiff to
receive settlement payments, Plaintiff would need to complete an I.R.S. Form W-9.
(See id. at 17-20, Pg. ID 883-86.) Plaintiff’s counsel agreed to have Plaintiff provide
the W-9. (See id. at 17, Pg. ID 883.) The Court then explained to Plaintiff that a
completed W-9 form would be “required from you.” (Id. at 18, Pg. ID 884.) The
Court next confirmed with Plaintiff that she understood that a W-9 “is a form that
you fill out and it includes name, address, and Social Security number, among other
things” and that the form “is a standard part of . . . tax paperwork” that is used “to
generate [an I.R.S. Form] 1099.” (Id.)
Finally, the Court asked Plaintiff if she had any concerns with the settlement
process or the terms of the settlement:
THE COURT: All right. Ms. McCormack, I know this has
been a challenging morning for you. Is there anything at
all that you want to raise for consideration at this point?
And I invite you to raise any concern at all that you have
about any aspect of this process because what I don’t want
to do is get down the road and hear that you had some
concern about the way the process unfolded today that
7

would lead you to want to withdraw from this agreement.
I know that it was challenging and difficult at times, but is
there any point that you feel you need or want to make at
this point?
(Id. at 21, Pg. ID 887.) Plaintiff replied by thanking the Court for its efforts and
acknowledging that, as the Court predicted at the beginning of the conference, she
was “unhappy” with aspects of the agreed-upon settlement:
MS. McCORMACK: I would like to thank you for your
patience and helping resolve this. No, my only issue – and
by the way, you succeeded, I am not happy.
THE COURT: I succeeded.
MS. McCORMACK: That’s right, you succeeded. I’m not
happy.
My only concern is that the person that caused all of
these problems, the neighbor, is getting a windfall, and
that’s the only issue. I would think that they should have
to pay for that fence themselves or at least pay for half. I
don’t know why –
(Id. at 21-22, Pg. ID 887-88.)
After Plaintiff voiced her “only concern,” the Court confirmed with Plaintiff
that, notwithstanding the concern, she was entering into the agreement “voluntarily
and willingly”:
THE COURT: Well, the good news is even if they get a
windfall, that is not coming out of your pocket. So
understanding that you are not thrilled about that aspect,
may I conclude that you are still unhappily but voluntarily
and willingly going ahead with the settlement as we have
announced it today?
8

MS. McCORMACK: Yes.
(Id. at 22, Pg. ID 888; emphasis added.)
C
Following the conference, the parties attempted to reduce their agreement to
writing. But Plaintiff began raising concerns about the proposed drafts, and she
would not sign. At the request of counsel, the Court convened a status conference
to address the issues in dispute and to assist the parties in memorializing their
agreement.
At the conference, Plaintiff raised three primary concerns about the terms of
the agreement. First, she raised a concern about the height of the fence to be installed
between her yard and her neighbors’ yard. The parties had not specifically addressed
the height of the fence when they placed the settlement on the record in October, but
they did agree at that time that the Court would resolve any disputes concerning the
installation of the fence. (See id. at 13, Pg. ID 879.) Consistent with that agreement,
the Court determined that the height of the fence would be 78 inches. (See Dec. 18,
2017 Conf. Tr. at 24, ECF #80 at Pg. ID 1036.)
Second, Plaintiff raised a concern about the length of the fence. The Court
ruled that the new fence could come at least as far forward as the current (to be
replaced) fence between Plaintiff’s yard and her neighbors’ yard. (See id. at 32, Pg.

9

ID 1044.) Plaintiff’s counsel confirmed that this placement of the fence would be
“within the spirit of the settlement.” (Id.)
Third, Plaintiff objected to completing a W-9 form. (See id. at 33, Pg. ID
1045.) Plaintiff explained that she objected to providing a W-9 form “because of
privacy.” (Id. at 34, Pg. ID 1046.) The Court addressed this concern by persuading
Defendants to agree not to disclose any of the information included on Plaintiff’s W9 form except as required by law. (See id. at 37-38, Pg. ID 1049-50.)5 Notably,
Plaintiff’s counsel conceded that she “honestly [could not] come up with a legal
argument” as to why Plaintiff should be excused from completing a W-9. (Id. at 33,
Pg. ID 1045.)
At the conclusion of the status conference, Plaintiff complained that the earlier
settlement conference had been coercive. The Court then asked Plaintiff’s counsel
if she felt the same way, and counsel said she did not:
THE COURT:
I mean, Ms. Downey, let me ask you
while we’re together here, was there any part of the

5

Plaintiff also complained that when she agreed to the settlement she had not
understood that the W-9 would go to the Defendants. (See Dec. 18, 2017 Conf. Tr.
at 34, ECF #80 at Pg. ID 1046.) But the Court directed Plaintiff to the portions of
the October 17, 2017, transcript at which she expressly confirmed her understanding
that both groups of Defendants would receive the W-9 form. (See id.) Plaintiff
further complained that when she agreed to the settlement she did not understand
what a W-9 form was. (See id.) But the Court directed Plaintiff to the portions of
the October 17, 2017, transcript at which the Court explained the nature of a W-9
form to Plaintiff and at which Plaintiff confirmed that she understood the Court’s
explanation. (See id. at 43, Pg. ID 1055.)
10

settlement process that you found unduly coercive or
improper or was your experience the same as mine?
MS. DOWNEY: Your Honor, in my experience, that
was a typical settlement conference. Your Honor was very
active and above average in your efforts but the process
was the same process that I’ve gone through with litigants
for 33 years.
(Id. at 47, Pg. ID 1059.)
D
Following the status conference, counsel for the Defendants sent to Plaintiff’s
counsel revised agreements reflecting the modifications ordered by the Court during
the conference.

Plaintiff’s counsel was satisfied that the revised agreements

accurately captured the original settlement as clarified by the Court during the
conference, but Plaintiff nonetheless refused to sign the revised agreements.
Plaintiff’s refusal to sign and other related conduct led to a breakdown in her
relationship with Plaintiff’s counsel, and Plaintiff’s counsel moved to withdraw from
representing Plaintiff. (See Mot. to Withdraw, ECF #67.)
In the motion to withdraw, Plaintiff’s counsel explained that Plaintiff “refuses
to cooperate . . . in executing and complying with the settlement to which she agreed
on October 17, 2017.” (Id. at Pg. ID 891.) Counsel added that she was attempting
“to take all reasonable actions to finalize the settlement put on the record on October
17, 2017 and clarified on the record on December 18, 2017,” but “Plaintiff made it
clear that her objective is the opposite.” (Id., Pg. ID 895.) Counsel noted that
11

“[Plaintiff] has declined to cooperate in any action necessary to complete the
settlement, and has asked counsel to take certain actions that conflict with her duty
as an officer of the court in this respect.” (Id.) The Court granted the motion to
withdraw in an Order dated January 18, 2018. (See ECF #70.)
E
On May 31, 2018, the Westland Defendants filed a motion to enforce the
October 17, 2017, settlement. (See ECF #76.) The Westland Defendants ask the
Court to “order the Plaintiff to execute necessary documents, the W-9 and the
Settlement Agreement within seven (7) days of the Court’s expected Order.” (Id. at
Pg. ID 942.) Also on May 31, 2018, the Highland Landscape Defendants filed a
motion to enforce the October 17, 2017, settlement. (See ECF #77.) The Highland
Landscape Defendants ask the Court to order Plaintiff to “execute and return the
agreement [previously agreed to by her counsel] within seven (7) days of the order
being issued.” (Id. at Pg. ID 970.)
On June 4, 2018, Plaintiff filed a motion asking the Court to “deem[]” that
part of the settlement agreements, specifically “the issue over the fence and W-9
form,” are “unenforceable.” (ECF #78 at Pg. ID 1003.) Plaintiff states that she
refuses to sign the agreements because she disagrees with terms that she previously
consented to on the record at the settlement conference. (See Pl.s’ Mot., ECF #78.)
Plaintiff states there are “two main issues in dispute”: “i) construction of a fence for
12

a party [her neighbor] with no standing and ii) filling out a W-9 [to the City of
Westland before it pays her the settlement funds].” (Id. at Pg. ID 991.) Plaintiff
argues that the “installation of a fence for a non or third-party is impermissible by
law” and that “the issue of the W-9 form was obtained by fraud, coerced by nondisclosure . . . .” (Id. at Pg. ID 1002.) Plaintiff also alleges that there were other
instances of coercion, undue influence, and bias during the October 17, 2017,
settlement conference. (See id. at Pg. ID 1001-02.)
On June 25, 2018, Plaintiff filed a response and objection to the Westland
Defendants’ motion to enforce the settlement. (See ECF #81.) In addition to
restating the argument in her motion, Plaintiff contends that the settlement
agreement was ambiguous and therefore there was no meeting of the minds. Plaintiff
argues that the Court’s ruling on the parties’ dispute over the privacy fence at the
December 18, 2017, status conference shows that the October 17, 2017, agreement
was ambiguous. (See id. at Pg. ID 1071-74, 1076-78.)
The Clerk of the Court received Plaintiff’s response to the Highland
Landscaping Defendants’ motion to enforce the settlement (see ECF #89) on July
27, 2018 – four days after the Court’s deadline for Plaintiff to respond. (See ECF
#82.) Plaintiff’s response to the Highland Landscaping Defendants’ motion to
enforce the settlement largely “incorporates [arguments she advanced in] her
previous pleadings,” i.e., in her own motion seeking to render parts of the settlement
13

unenforceable and in her response to the Westland Defendants’ motion to enforce
the settlement. (Resp. to Highland Landscaping Defs.’ Mot., ECF #89 at Pg. ID
1138-39.) Plaintiff also contends that she did not knowingly settle her claims against
the Highland Landscaping Defendants. (See id. at Pg. ID 1144.)
II
A
“It is well established that courts 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) (internal
quotations omitted). “A federal court possesses this power even if that agreement
has not been reduced to writing.” Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th
Cir. 1988) (internal quotations omitted).
“Before enforcing settlement, the district court must conclude that agreement
has been reached on all material terms.” Id. “Whether a settlement agreement is a
valid contract between the parties is determined by reference to state substantive law
governing contracts generally.” Bamerilease Capital Corp., 958 F.2d at 152 (internal
alterations omitted). The parties appear to agree that Michigan law would govern
the validity of the settlement agreement. Under Michigan law, “[i]n order to form a
valid contract, there must be a meeting of the minds on all the material facts. A
meeting of the minds is judged by an objective standard, looking to the express
14

words of the parties and their visible acts, not their subjective states of mind.”
Kamalnath v. Mercy Mem'l Hosp. Corp., 487 N.W.2d 499, 503 (Mich. Ct. App.
1992). But even if there is a meeting of the minds, an agreement will not be enforced
if it resulted from “fraud or mutual mistake,” Brown v. Cty. Of Genessee, 872 F.2d
169, 174 (6th Cir. 1989), from “unconscionable advantage,” Plamondon v.
Plamondon, 583 N.W.2d 245, 246 (Mich. Ct. App. 1998), or from coercion or
duress. See Norton v. State Hwy. Dept., 24 N.W.2d 132, 135-36 (Mich. 1946).
B
The Court concludes that the parties formed a valid contract at the October
17, 2017, settlement conference. The material terms of the agreement, including the
City of Westland’s construction of the neighbors’ fence, the payments to Plaintiff,
the release of claims by Plaintiff, the appointment of City of Westland officials to
serve as contact point for Plaintiff, and the requirement that Plaintiff complete a
Form W-9, were identified on the record at the hearing. Plaintiff, while represented
by experienced and highly-effective counsel, expressly agreed to those terms.
Contrary to Plaintiff’s argument, the fact that the Court made some specific
determinations about the height and placement of the fence during the December 18,
2017, status conference, does not demonstrate that the October 17, 2017, agreement
was ambiguous or incomplete. At the October conference, the parties agreed upon
the material term that the City would install the fence, and the parties further agreed
15

that if they could not reach an agreement upon the specific characteristics of the
fence, then the Court would make the final call in that regard. Thus, at the October
17, 2017, conference, the parties reached a clear and definite agreement concerning
how disputes over the nature of the fence would be resolved, and the Court followed
through on that agreement when it resolved the fence-related disputes at the
December 18, 2017, status conference. Notably, while Plaintiff may feel that the
October 17, 2017, agreement was unenforceable on the ground that it was
incomplete or ambiguous, her experienced former attorney does not share that view.
Finally, the Court is certain that Plaintiff was not coerced into agreeing to the
terms placed on the record and equally certain that her agreement to those terms was
not the product of duress. “Duress, under the modern formulation, is present when
a person, by the unlawful act of another, is induced to make a contract under
circumstances that deprive him of free will,” Stefanac v. Cranbrook Educ. Cmty.,
458 N.W.2d 56, 74 n.40 (Mich. 1990) (citing Norton, supra), and coercion is the
“application to another of such force, either physical or moral, as to constrain him to
do against his will something he would not otherwise have done.” Norton, 24
N.W.2d at 135. Neither duress nor coercion were present in this case. Indeed,
Plaintiff expressly confirmed on the record at the very end of the October 17, 2017,
conference that she was “voluntarily and willingly going ahead with the settlement
as we have announced it today.” (Oct. 17, 2017 Conf. Tr. at 22, ECF #66 at Pg. ID
16

888; emphasis added.) Likewise, Plaintiff’s former counsel, who was by Plaintiff’s
side for every minute of the settlement conference, confirmed that the conference
was “typical” and not tainted by coercion or duress. (Dec. 18, 2017 Conf. Tr. at 47,
ECF #80 at Pg. ID 1059.)
In sum, Plaintiff’s refusal to sign the settlement agreements is based upon a
garden-variety case of buyer’s remorse, not upon some legally-valid objection to the
terms of the agreements or to the settlement process itself. Therefore, the Court will
require Plaintiff to take the steps necessary to execute the settlement.
The circumstances of this case are strikingly similar to the circumstances in
McCormick v. Brezezinski, 2010 WL 1463176 (E.D. Mich. Apr. 13, 2010). In that
case, the parties reached a settlement agreement and orally placed the material terms
of the agreement on the record. McCormick, 2010 WL 1463176 at *1. The parties
agreed to reduce those terms to writing and to include in the final settlement
agreement certain unspecified “standard language.” Id. at *3. The parties further
agreed that if there was a dispute about particular “standard language” to be
included, the court would determine whether to include the language in the final
written agreement. Id.

17

A dispute arose during the drafting process, and the plaintiff6 declined to
finalize the settlement documents. The defendant then filed a motion to enforce the
agreement as placed on the record, and the plaintiff asked to set aside the agreement.
See id. The plaintiff made a number of arguments against enforcement, and the court
rejected each argument.
First, the plaintiff objected to provisions in the written agreement that
classified the settlement payment as “damages” for tax purposes and allowed the
defendants to issue an IRS Form 1099 to the plaintiff. The plaintiff refused to
provide her social security number to be included on the Form 1099. See id. The
plaintiff argued that the provisions were “new and different terms.” Id. The court
rejected that argument. The court noted that the parties agreed that it (the court)
would resolve disputes concerning standard language to be included in the
agreement, and the court determined that the disputed tax provisions were “entirely
standard language.” Id.

The court also directed the plaintiff to provide the

defendants with her social security number because “sending a Form 1099 including
[the plaintiff’s] social security number is required under Federal Law.” Id.
Similarly, the requirement that Plaintiff here complete a W-9 is a reasonable and

6

The Westland Defendants assert that the plaintiff in McCormick, Linda
McCormick, is the same individual as Plaintiff in this case. (See Westland Defs.’
Mot., ECF #76, at Pg. ID 938-39.) Particularly given the difference in the names of
the plaintiffs, the Court is not certain that Plaintiff was also involved in that action.
The court’s ruling in McCormick is nonetheless instructive in this case.
18

standard term to which Plaintiff voluntarily consented and which will enable the
Defendants to comply with their obligation under federal law to issue a Form 1099
to Plaintiff.
Second, the plaintiff in McCormick argued that she was under duress when
she agreed to the settlement. The court rejected that argument. See id. at *4. Noting
that it had “personally conducted and recorded the settlement conference,” the court
concluded that “[t]here exists no evidence indicating that [the plaintiff] was
coerced.” Id. at *5. Rather, the court noted, “[p]laintiff was, in fact, entirely free to
turn down the proposed terms of the settlement agreement or to walk away from the
discussion at any time and proceed to trial.” Id. Likewise, in this case, the Court
personally conducted the settlement agreement and concludes – based upon its
personal involvement in the process as well as Plaintiff’s statements to the Court on
the record at the conclusion of the settlement conference – that Plaintiff did not agree
to the settlement terms as a result of duress or undue pressure.
Finally, the plaintiff in McCormick claimed that she was misled into believing
that the defendant county, rather than an insurance carrier, was making the payment
due under the settlement agreement. See id. The court rejected this argument
because it found that the defendant did not make any material misrepresentation
concerning the source of the funds paid to the plaintiff. See id. Here, there is no
evidence that any term of the agreement was misrepresented to Plaintiff.
19

As in McCormick, the Court concludes that Plaintiff was fully informed of the
material terms of the agreements and voluntarily assented to be bound by those
terms. Thus, Plaintiff must sign the settlement agreements that reflect those terms.
C
The Court wishes to clarify which version of the written settlement agreement
between the Westland Defendants and Plaintiff must be executed. The Westland
Defendants attached as an exhibit to their motion a written settlement agreement that
reflects the terms placed on the record at the October settlement conference (the
“October Version”). (See ECF #76-2.) The October Version does not reflect the
rulings by the Court related to the settlement terms at the December status
conference. Plaintiff, in contrast, submitted a different version of the written
agreement that reflects both the terms placed on the record at the October settlement
conference and the rulings by the Court at the December status conference (the
“December Version”). (See ECF #81 at Pg. ID 1087-89.) The Westland Defendants
state that they seek an order compelling Plaintiff to sign the October Version, rather
than the December Version, because, during the December 18, 2017, status
conference, Plaintiff “did not agree to amend” the terms placed on the record in
October. (Resp. to Pl.s’ Obj., ECF #84 at Pg. ID 1102.)
The Court concludes that Plaintiff must execute the December Version.
Contrary to the Westland Defendants’ suggestion, the December Version is not an
20

amendment of the terms placed on the record in October and did not require
Plaintiff’s additional assent. On the contrary, the December Version simply finalizes
and carries into effect the parties’ original October agreement – an agreement that
expressly contemplated that the Court would resolve the disputes addressed in
December.
D
Finally, the Court addresses Plaintiff’s contention that she was “unaware of
any settlement with Highland until on the record.” (Resp. to Highland Landscaping
Defs.’ Mot., ECF #89 at Pg. ID 1144.) Plaintiff contends that there was no mention
of the Highland Landscaping Defendants during the settlement discussions that led
up to the placement of the agreement on the record. The Court knows from its
personal involvement in the settlement discussions that the Highland Landscaping
Defendants were mentioned during those discussions. Just as importantly, even if
the Highland Landscaping Defendants were not mentioned during the discussions
(and they were), those Defendants were clearly identified as being included in the
settlement agreement when the agreement was placed on the record, and Plaintiff
raised no objection to their inclusion in the settlement agreement. (See Oct. 17, 2017
Conf. Tr. at 13-14, ECF #66 at Pg. ID 879-80.) On the contrary, she agreed to settle
with them. (See id. at 22, Pg. ID 888.) The Court is certain that Plaintiff knowingly
agreed to settle with the Highland Landscaping Defendants.
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III
For all the reasons stated above, IT IS HEREBY ORDERED THAT the
Westland Defendants’ Motion to Enforce Settlement is GRANTED, the Highland
Landscaping Defendants’ Motion to Enforce Settlement is GRANTED, and
Plaintiff’s Motion Re Proposed Oral Settlement After the Court Entered an Order
Finding Defendants Violated Plaintiff’s Rights is DENIED.
IT IS FURTHER ORDERED THAT:
(1) By not later than August 2, 2018, the Westland Defendants shall mail to
Plaintiff an executable copy of the December Version and a Form W-9;
(2) By not later than August 13, 2018, Plaintiff shall execute the December
Version, complete the Westland Defendants’ Form W-9, and mail both
documents to counsel of record for the Westland Defendants; and
(3) Plaintiff shall file a certificate on the Court’s docket confirming that she
executed the December Version, completed the Westland Defendant’s
Form W-9, and mailed both documents to counsel of record for the
Westland Defendants. Plaintiff’s certification must be received by the
Clerk of the Court by not later than August 17, 2018.
IT IS FURTHER ORDERED THAT:
(1) By not later than August 2, 2018, the Highland Landscaping Defendants
shall mail to Plaintiff an executable copy of the settlement agreement
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between the Highland Landscaping Defendants and Plaintiff and a Form
W-9. The settlement agreement shall conform to the relevant terms placed
on the record at the October 17, 2017, settlement conference, as clarified
at the December 18, 2017, status conference;
(2) By not later than August 13, 2018, Plaintiff shall execute the copy of the
Highland Landscaping Defendants’ settlement agreement, complete the
Highland Landscaping Defendants’ Form W-9, and mail both documents
to counsel of record for the Highland Landscaping Defendants; and
(3) Plaintiff shall file a certificate on the Court’s docket confirming that she
executed the Highland Landscaping Defendants’ settlement agreement,
completed the Highland Landscaping Defendants’ Form W-9, and mailed
both documents to counsel of record for the Highland Landscaping
Defendants. Plaintiff’s certification must be received by the Clerk of the
Court by not later than August 17, 2018.
Plaintiff’s failure to comply with this Order will result in dismissal of this
action with prejudice.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: July 30, 2018
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I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on July 30, 2018, by electronic means and/or ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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