Peetz v. Genentech, Inc. et al

Filing 158

ORDER granting 153 Motion to Extend Dismissal Papers Deadline. Overruling 156 Objection by Plaintiff. On or before August 13, 2014 the parties shall file a joint stipulation for dismissal or other dispositive stipulation, together with submitting to the undersigned judge a draft order which will fully dispose of the case. Ordered by Judge John M. Gerrard. (KMG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FORREST F. PEETZ, as Personal
Representative for the Estate of Jesse
Robert Peetz, Deceased,

8:10-CV-297

Plaintiff,
ORDER
vs.
GENENTECH, INC., a California
corporation, et al.,
Defendants.
This matter is before the Court on the Defendants' Motion for
Extension of Deadline to File Stipulation of Dismissal (filing 153)1 and the
Plaintiff's Objection (filing 156) to that motion. The Court will grant the
defendants' motion and overrule the plaintiff's objection. But not without
some reservations, and an explanation.
To begin with, it would have been helpful had counsel presented
arguments based on citations to legal authority, instead of casting aspersions
on one another's conduct. Nonetheless, the Court has done the parties'
homework for them, and satisfied itself that the agreement already reached
by the parties is almost certainly binding, despite their failure to execute a
final, comprehensive written agreement. A settlement agreement is subject to
the general principles of contract law and is enforceable under the same
principles as other contracts, and no particular form of agreement and no
writing is ordinarily essential to a valid compromise. Omaha Nat. Bank v.
Mullenax, 320 N.W.2d 755, 758 (Neb. 1982). And where a contract does not
involve personal skill or taste, it may be enforced by a party's heir or estate.
See Hasemann v. Hasemann, 203 N.W.2d 100, 102 (Neb. 1972); see also,
Wilhelm v. Chain, 300 U.S. 31, 35-36 (1937); Wilson v. Fieldgrove, 787
N.W.2d 707, 711-12 (Neb. 2010).
Accordingly, to the extent that the settlement agreement already
reached in principle by the parties in this case would have been enforceable
Although the defendants' motion includes the plaintiff's signature block at the bottom,
defendants' counsel has advised the Court that it was accidentally copied from a previous
joint motion, and its inclusion here was inadvertent. This is obviously not a joint motion.
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by the decedent, were he alive, it is enforceable by the decedent's estate after
his death. See, e.g., Daly v. Chicago & Nw. Ry. Co., 114 N.W.2d 682, 684-85
(Minn. 1962); compare Washington v. Caseyville Health Care Ass'n, Inc., 672
N.E.2d 34, 35-36 (Ill. App. 1996) (enforceable settlement not reached before
plaintiff's death); see also In re Donovan's Case, 791 N.E.2d 388, 390-91
(Mass. App. 2003) (defendant estopped from denying settlement where
decedent already executed release of claim). The Court therefore has some
basis to question the defendants' implication that the agreement they have
already reached might need a significant overhaul.
That said, without a clear understanding of the terms of the proposed
final agreement, it is difficult to know the extent to which those terms might
need to be modified to reflect the substitution of parties. This is, again, a
point on which counsels' preoccupation with one another's behavior has left
the Court uninformed. The Court understands that the terms of the
settlement are confidential—but if necessary, they could have been filed as
restricted documents, or even under seal. As it stands, however, the parties
are making cross-assertions about how much effort will or will not be
required to revise their final, written agreement—but they have provided the
Court with no factual basis to resolve that disagreement.
That is not to say that the Court is inviting further filings. Quite the
contrary. The Court notes that both sides agree on the need for an extension
of the dismissal papers deadline—they simply disagree about how long that
extension needs to be. This is, in fairness, an unusual and somewhat
complicated situation, so the Court is willing to assume for the time being
that the defendants' concerns about the details of the settlement are, if not
all well-founded, at least presented in good faith. Therefore, the Court will
grant the defendants' motion for a 30-day extension of the dismissal papers
deadline, and overrule the plaintiff's objection to the contrary.
But to be clear: 30 days should be more than enough time to get this
done. The Court expects that counsel will be able to conduct themselves
graciously—or, at least, professionally—and conclude these proceedings to
the benefit of their clients, without taking up more of the Court's time.
IT IS ORDERED:
1.

The Defendants' Motion for Extension of Deadline to File
Stipulation of Dismissal (filing 153) is granted.

2.

The Plaintiff's Objection (filing 156) is overruled.

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3.

On or before August 13, 2014, the parties shall file a joint
stipulation for dismissal, or other dispositive stipulation,
together with submitting to the undersigned judge a draft
order which will fully dispose of the case.

4.

The Clerk of the Court shall set a dismissal papers
deadline of August 13, 2014.

Dated this 15th day of July, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge

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