Branum et al v. National Credit Union Administration Board

Filing 52

ORDER granting 50 Motion to Seal; granting 50 Motion to Compel for the reasons set out in the order. Signed by District Judge Daniel P. Jordan III on March 26, 2015. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOVITA BRANUM, ET AL.

PLAINTIFFS

V.

CIVIL ACTION NO. 3:10CV852 DPJ-FKB

VALUED MEMBER CREDIT UNION, ET AL.

DEFENDANTS

consolidated with
JOVITA BRANUM, ET AL.

PLAINTIFFS

V.

CIVIL ACTION NO. 3:12CV513 DPJ-FKB

NATIONAL CREDIT UNION ADMINISTRATION BOARD

DEFENDANT

ORDER

This cause is before the Court on the Report and Recommendation [160] of Magistrate
Judge F. Keith Ball. Judge Ball recommended granting the National Credit Union
Administration Board’s motion [154] to enforce the settlement agreement reached in this case.
Specifically, NCUAB seeks to compel Plaintiff Brenda Sones to execute the Confidential
Settlement Agreement and Full and Final Release.
I.

Report and Recommendation
On August 11, 2014, the parties reached a settlement with Judge Ball’s assistance. At

that conference, Sones signed a memorandum agreeing to “sign a full, final, and complete release
of all claims against Defendant.” Sealed Agreement [156]. But Sones now refuses to sign the
release, insisting that it also include a mutual release. NCUAB contends that this is an additional
condition that was not agreed to during the settlement conference and her refusal to sign
constitutes a breach of the settlement agreement. Judge Ball agreed, finding that the parties’

agreement did not contemplate the additional language and Sones had not established a valid
reason why she should not be required to comply. Sones filed an Objection [161]; NCUAB filed
a Response [162]; and Sones filed a Reply [163].
As an initial point, NCUAB asks the Court to strike the Objection as untimely.
According to NCUAB, any objection was due on January 20, 2015. Resp. [162] at 4. Sones
emailed her Objection to Judge Ball’s law clerk on January 19, 2015, believing that because the
motion and attachments were filed under seal, this was the proper method to respond to the R&R.
She also provided a copy to counsel opposite by email. See Certificate of Service [161] at 4.
Then, on January 26, 2015, the Objection was docketed on CMECF. Relying on the January 26
filing, NCUAB argues that the Objection is untimely. While Sones’s decision to email the
Objection to the Court was arguably unnecessary because the R&R was not filed under seal, she
did contemporaneously provide a copy to NCUAB, and the docket has been updated to reflect the
filing. NCUAB’s request to strike the Objection is denied.
II.

Objection
The bulk of Sones’s Objection addresses NCUAB’s request for attorney’s fees and costs.

Obj. [161] at 1 ( “The Plaintiff objects to the extent granting the Motion would grant the
defendant attorney’s fees.”). NCUAB requested attorney’s fees and expenses in its motion,
though Judge Ball did not address the request in his R&R. Sones first argues that Defendant
failed to support its request for attorneys fees with statutory authority. Id. But the Court’s Order
of Dismissal clearly stated:
If any party fails to comply with the terms of this settlement agreed to by all
parties, any aggrieved party may reopen the case for enforcement of the settlement
agreement. If successful, all additional attorneys’ fees and costs from this date
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shall be awarded such aggrieved party or parties against the party failing to
comply with the agreement.
Order [153] at 1 (emphasis added).
Sones next complains that to allow NCUAB to reduce its settlement payment by the
amount of attorney’s fees incurred would result in a release of her claims without any
compensation. In its Response and supporting affidavit, NCUAB requests $7,680 in attorney’s
fees and $41.92 in costs, but it does not provide an itemized list explaining these charges.
Instead, it generally submits that the fees include “drafting five settlement agreements, emails
and telephone conferences with counsel, hearings before Judge Ball, prosecuting the instant
motion, research for the motion and communicating with the client.” Resp. [162] at 5 n.2.
While it is true that the Order of Dismissal provides for an award of “all” fees and costs from the
date of dismissal, before awarding attorney’s fees and costs, the Court desires additional
evidentiary support of NCUAB’s request, including an itemized list of the charges incurred.
Moreover, three plaintiffs—Sones, Raines, and Mills—initially refused to sign the
release, though Raines and Mills agreed to sign after NCUAB filed its motion to enforce the
settlement agreement. It is not clear if NCUAB is seeking to offset all attorney’s fees and costs
against Sones’s settlement amount, or if it wishes to divide the expenses among these three
plaintiffs. See Resp [162] at 3–4 (“[T]he Liquidating Agent requested that it be awarded attorney
fees and expenses for prosecution of the instant motion and that it be allowed to reduce said fees
from the settlement proceeds to be paid to these three plaintiffs.”); but see id. at 5 (“[T]he
Liquidating Agent has incurred $7,680 in attorney’s fees and $41.92 in costs, all of which should
be assessed to Ms. Sones.”).

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Finally, Sones’s arguments regarding the language of the release and future claims are not
well-taken. The Court agrees with Judge Ball that she has not established a valid reason why she
should not be required to comply with her agreement to “sign a full, final, and complete release
of all claims against Defendant.” See Sealed Agreement [156].
III.

Conclusion
The Court finds that the Report and Recommendation [160] of Judge Ball should be

adopted as the finding of this Court. NCUAB’s motion to seal and compel enforcement of
settlement [154] is granted.1
If NCUAB wishes to pursue its claim for attorney’s fees and expenses, it should submit,
within fourteen days of this Order, supplemental briefing to clarify against whom the fees are
sought and an affidavit setting forth an itemized list of the fees incurred. Plaintiffs, if they
choose to respond, must do so within ten days of NCUAB’s filing.
SO ORDERED AND ADJUDGED this the 26th day of March, 2015.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

1

NCUA’s motion [50] filed in the member case, 3:12CV513, is likewise granted.
4