Indian Inmates of the Nebraska Penitentiary v. Wolff

Filing 304

ORDER- Counsel shall present their views in writing on or before December 1, 2012, about whether this case, limited to the Motion for Contempt or Breach of Settlement Agreement, ECF No. 287 , is concerned, should be transferred to the District Court of Lancaster County, Nebraska.***Set/Reset All Deadlines: ( Case Management Deadline set for 12/1/2012.) Ordered by Senior Judge Warren K. Urbom. (copies mailed) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
INDIAN INMATES OF THE
NEBRASKA PENITENTIARY, and
RICHARD THOMAS WALKER,
Plaintiffs,
v.
CHARLES L. WOLFF JR., LES
AUMAN, LYNN WRIGHT,
TERESA PREDMORE, MICHAEL
KENNEY, and HAROLD W.
CLARKE,
Defendants.

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4:72CV156

MEMORANDUM AND ORDER ON
BREACH OF SETTLEMENT
AGREEMENT AND ISSUE OF
TRANSFER TO STATE COURT

Michael J. Sims, on behalf of the plaintiffs, has filed a “Motion for Contempt
or Breach of a Settlement Agreement. Rule 60(B) § 5 & 6,” ECF No. 287. The
defendants’ response to that motion, ECF No. 292, charges that this court has no
jurisdiction over that issue. It appears to me that the defendants are correct.
The settlement agreement the plaintiffs claim is being violated by the Director
of Corrections is the settlement agreement that was approved by me in a judgment
dated March 15, 2005, ECF No. 284. Neither the settlement agreement nor the
judgment dated March 15, 2005, ECF No. 284, speaks of retaining jurisdiction over
the settlement agreement nor incorporates the terms of the settlement agreement in
the order. Miener v. Missouri Department of Mental Health, 62 F.3d 1126, 1127 (8th
Cir. 1995), says:
Ancillary jurisdiction to enforce a settlement agreement exists only “if
the parties’ obligation to comply with the terms of the settlement

agreement [is] made part of the order of dismissal–either by . . . a
provision ‘retaining jurisdiction’ over the settlement agreement [] or by
incorporat[ion of] the terms of the settlement agreement in the order.”
[Citing Kokkonen, ____ U.S. at ____, 114 S.Ct. at 1677. Ancillary
jurisdiction to enforce the agreement exists in these situations because
breach of the agreement violates the district court’s judgment. Id.
Absent action making the settlement agreement part of a settlement
order, “enforcement of the settlement agreement is for state courts,
unless there is some independent basis for federal jurisdiction.” Id.
Thus, with there being in the present case no provision retaining jurisdiction
over the settlement agreement or incorporation of terms of the settlement agreement
in the order, no jurisdiction of the federal court remains.
With no jurisdiction of the federal court remaining, the question is whether this
action should be transferred to the District Court of Lancaster County, Nebraska. I
shall give counsel the opportunity to express their views about that.
IT IS ORDERED that counsel shall present their views in writing on or before
December 1, 2012, about whether this case, limited to the Motion for Contempt or
Breach of Settlement Agreement, ECF No. 287, is concerned, should be transferred
to the District Court of Lancaster County, Nebraska.
Dated November 14, 2012.
BY THE COURT

__________________________________________
Warren K. Urbom
United States Senior District Judge

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