Joe Hand Promotions, Inc. v. In Your Ear, LLC et al

Filing 12

ORDER AND OPINION DENYING DEFENDANTS' MOTION TO ENFORCE SETTLEMENT AND MOTION TO DISMISS, 4 . Signed on 8/4/15 by District Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
JOE HAND PROMOTIONS, INC.,

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Plaintiff,
v.

IN YOUR EAR, LLC, et al.,
Defendants.

Case No. 15-5030-CV-SW-ODS

ORDER AND OPINION DENYING DEFENDANTS’
MOTION TO ENFORCE SETTLEMENT AND MOTION TO DISMISS
Pending before the Court is Defendants’ Motion to Enforce Settlement
Agreement and Motion to Dismiss. Doc. # 4. The Motion is denied.

I.

Background

On July 1, 2011, Plaintiff Joe Hand Promotions, Inc. (“Joe Hand”) filed its first suit
against several defendants including In Your Ear LLC (“IYE”) and Becky Ann Evans
(“Evans”), claiming Joe Hand had exclusive distribution rights to a pay-per-view
program that defendants published without authorization. Based on these allegations,
Joe Hand claimed defendants violated 47 U.S.C. §§ 553 and 605 and committed the
tort of conversion. See Joe Hand Promotions, Inc. v. In Your Ear, LLC, et al., No 11CV-3226, Doc. #1.
On April 29, 2014, the Court issued an Order reminding the parties of the pretrial
conference scheduled for May 16, 2014. Doc. #68. The parties then advised that they
had agreed to a resolution of the case. Doc. #69. However, the undersigned’s
Courtroom Deputy informed the parties that the pretrial conference would not be
canceled unless the case was dismissed. Id. Despite this information, the parties failed
to take part in the pretrial conference. On May 19, 2014, the Court dismissed the case
without prejudice for failure to prosecute and for failure to obey the Court’s orders,

noting that the dismissal “may deprive Plaintiff of some of its bargaining position, and it
may deprive Defendant of the final peace it sought in settling the matter. These
consequences are of the parties’ own making.” Id.
On April 3, 2015, Joe Hand filed a new lawsuit against almost identical
defendants and asserting almost identical claims as in its 2011 suit. Thereafter, IYE
and Evans filed a motion, maintaining this Court should enforce the alleged settlement
agreement reached during the 2011 suit and dismiss this case.
II.

Discussion

IYE and Evans do not cite any legal authority which would give this Court the
power to enforce a settlement agreement entered into during the pendency of another
case. The Court has the authority to enforce a settlement agreement if that agreement
had been approved and incorporated into a court order. Jenkins v. Kansas City
Missouri School Dist., 516 F.3d 1074, 1081 (8th Cir. 2008); Gardiner v. A.H. Robins
Co., Inc., 747 F.2d 1180, 1194, n. 13 (8th Cir. 1984). However, during the 2011 lawsuit,
the Court did not approve a settlement agreement, nor did the Court incorporate a
settlement agreement into a court order.
The Court also would have the authority to enforce a settlement agreement
entered into by the parties in a pending case. Gardiner v. A.H. Robins Co., Inc., 747
F.2d 1180, 1194, n. 13 (8th Cir. 1984); Wilkins v. Anadarko Industries, L.L.C., No. 13cv-908, 2013 WL 5312717 at *1 (E.D. Mo. Sept. 20, 2013); Criner v. White, No. 09-cv237, 2010 WL 891624 at *1 (E.D. Mo. March 8, 2010). While this case certainly
remains pending before the Court, the parties did not enter into any alleged agreement
during the pendency of this case. Rather, the parties allegedly entered into an
agreement during the 2011 case, and that case is no longer pending before this Court.
As best the Court can discern, IYE and Evans have merely presented an
affirmative defense, and like all affirmative defenses, its resolution is governed by the
Federal Rules of Civil Procedure. Two procedural devices allow the Court (as opposed
to a jury) to resolve a party’s claims or defenses. IYE and Evans may have been
attempting to assert this argument under FRCP 12(b)(6), but the parties have presented
materials outside the pleadings. Thus, if this court were to consider these materials in

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issuing its decision, the motion to dismiss would be transformed into a motion for
summary judgment under FRCP 56. Parnes v. Gateway 2000, Inc., 122 F.3d 539, FN 9
(8th Cir. 1997); see also FRCP 12(d). The Court’s preliminary review of these materials
indicates that, at this juncture, disputed issues of material fact remain (though these
disputes may no longer exist after the parties engage in discovery) and that partaking in
summary judgment procedures is premature.
For the foregoing reasons, the Court does not have the power to enforce an
alleged settlement agreement entered into by the parties during a 2011 lawsuit.
Conclusion1
IYE and Evans’s Motion to Enforce Settlement Agreement and Motion to Dismiss
is denied. Doc. #4.
IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: August 4, 2015

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On July 21, IYE and Evans filed, out of time, their Reply Suggestions in Support of their Motion
to Enforce Settlement and Motion to Dismiss. Doc. #11. Therein, IYE and Evans request this Court
extend the time to file their Answers in this case. The Court’s review of the docket indicates that service
of process has not been executed as to Evans. Doc. #6. Additionally, the docket does not reflect the
status of service with respect to IYE. Thus, the Court cannot determine when IYE’s and Evans’s Answers
are due. Moreover, IYE and Evans have not indicated whether Plaintiff consents to this extension
request, or whether Plaintiff’s consent was sought. Finally, IYE and Evans have not supplied the Court
with a proposed deadline. Accordingly, IYE’s and Evans’s request for an extension to file their Answers in
this case is denied without prejudice.

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