Johnson et al v. City of Omaha Nebraska et al

Filing 150

MEMORANDUM OPINION - The Court finds that the parties have reached an enforceable settlement agreement. On the record, the parties agreed to the essential terms of the contract, i.e., that the plaintiffs as a group would accept an offer of judgment f or $30,000, the City of Omaha would pay $60,000 in attorneys fees and costs, and that each of the individual defendants would be dismissed with prejudice (Filing No. 142 at 14-16). Counsel for both the plaintiffs and defendants stated tha t the above mentioned terms were agreed to by the parties. In addition, Magistrate Judge Zwart asked each of the five plaintiffs individually if they participated in the settlement conference, if they understood the terms, and if they agreed to the terms. All five plaintiffs answered Yes to the questions. Magistrate Judge Zwart clearly explained that it is a full and final settlement of the case and there will be no renegotiation thereafter. (Id. at 14). Similar to the UUCM case, a binding agre ement was formed at the settlement conference, and the plaintiffs cannot take back their agreement at the City Council meeting or anytime thereafter. The defendants are entitled to enforce the settlement agreement. The defendants motion to enforce the settlement will be granted. A separate judgment will be entered against the City of Omaha in accordance with the Rule 68 Offer of Judgment. Ordered by Senior Judge Lyle E. Strom. (LAC, )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
OCTAVIOUS JOHNSON, DEMETRIUS
JOHNSON, JUAQUEZ JOHNSON,
SHARON JOHNSON and SHEREE
JOHNSON, individuals,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
CITY OF OMAHA, a political
)
subdivision, et al.,
)
)
Defendants.
)
______________________________)

8:14CV4

MEMORANDUM OPINION

This matter is before the Court on defendants’ motion
to enforce the settlement agreement (Filing No. 143).

The

plaintiffs filed a letter in response (Filing No. 149).

After

reviewing the motion, the defendants’ brief and index of
evidence, plaintiffs’ letter, and the applicable law, the Court
finds as follows.
Background
On March 21, 2013, members of the Omaha Police
Department were present at 3321 Seward Street, Omaha, Nebraska,
to address unregistered automobiles located on the street.

A

dispute arose between members of the Johnson family and officers
on the scene.

One of the plaintiffs, Octavius Johnson

(“Octavius”), was restrained by Officer Bradley D. Canterbury
(“Canterbury”).

During the interaction between Octavius and

Canterbury, Juaquez Johnson (“Juaquez”) began filming the
incident with a video camera.

The plaintiffs allege that Juaquez

was approached by officers and followed into the house on 3321
Seward Street.

Demetrius Johnson (“Demetrius”) is also alleged

to have been filming the interaction on his cell phone.

When the

officers entered the house, Demetrius claims that he was
restrained and that plaintiff Sharon Johnson’s (“Sharon”)
wheelchair was tipped over by the officers.

The Johnsons claim

that Officer James T. Kinsella (“Kinsella”) confiscated the
memory card and video camera that were used by Demetrius and
Juaquez to film the interaction.
Five members of the Johnson family filed this action
against the City of Omaha, the Omaha Police Department,1 and
several of its current and former officers.

This Court ruled

that bifurcation was appropriate in this case, and that separate
trials will be held on the individual defendant officers’
liability claims and the policy claims against the City of Omaha
(Filing No. 75).
On April 18, 2016, Magistrate Judge Zwart held a
settlement conference.

(See Filing Nos. 137, 138, and 142).

All

the plaintiffs were present at the conference with their counsel.

1

The Court has dismissed the Omaha Police Department as a
party in a prior ruling (Filing No. 63).
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In addition, defendants’ counsel was present.

Magistrate Judge

Zwart explained the process of a settlement conference to the
parties.

Sharee Johnson made a statement on behalf of the

plaintiffs before the formal settlement discussions began.

The

beginning and end of the settlement conference was on the record.
At 4:08 p.m., Magistrate Judge Zwart went on the record
to announce that the parties had reached a resolution.
13).

(Id. at

Magistrate Judge Zwart explained that “after this is on the

record and all parties have made their statement on the record
that this is the settlement, that it is a full and final
settlement of the case and there will be no renegotiation
thereafter.”

(Id. at 14, lines 3-6).

Magistrate Judge Zwart recited the terms of the
settlement for the record:
The parties have agreed based upon
the settlement conference that I
have attended and presided over
today that the City will pay an
amount of $30,000 to the plaintiffs
and that is $30,000 to the
plaintiffs as a group, not $30,000
per plaintiff but $30,000 to the
plaintiffs as a group, that that
$30,000 will be in an offer to
confess judgment -- oh, no, it
will be a judgment in that amount.
The City has also agreed that it
will stipulate to pay $60,000
toward attorneys' fees, and so the
judgment in this case would be
$30,000 plus attorneys' fees to be
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decided by the Court and that it
will -- all parties will waive
their costs in this case for a
total package from plaintiff -- or,
excuse me, from the defendant City
in the total amount of no more than
$90,000. The -- each of the
individual defendants will be
dismissed with prejudice in this
case.
(Id., lines 7-22).

Mr. Mumgaard, attorney for the defendants,

explained that the settlement needs to go though the City Council
for a hearing and approval.

Plaintiffs’ counsel, Ms. Vogt,

stated that the settlement terms stated on the record were
correct. (Id. at 16).
Magistrate Judge Zwart, on the record, asked each
plaintiff individually the following questions:

(1) whether they

were present and participated in the settlement conference; (2)
whether they heard and understood the terms of the settlement;
and (3) whether they agreed to those terms (See Id. at 16-18).
Each of the plaintiffs answered in the affirmative to all of the
questions.

(Id.).
On May 17, 2016, the City Council approved the

resolution reached at the settlement conference (Filing No. 145,
Exhibit 2).

The Johnson family objected at the City Council

meeting and wanted to back out of the settlement (Filing No. 145,
Exhibit 9).

The resolution was signed by the Mayor on May 19,

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2016 (Filing No. 145, Exhibit 2).

Counsel for the defendants

hand-delivered a certified copy of the resolution to the
plaintiffs’ attorney, with a cover letter, Rule 68 Offer of
Judgment, Acceptance of the Offer, Motion to Obtain a Judgment, a
proposed Judgment Order, Satisfaction of the Judgment, and a copy
of the City’s check drafted to pay the judgment amount.

(See

Filing No. 145, Exhibits 2, 3, 4, 5, 6, 7, and 8).
Law and Analysis
The defendants move this Court to enforce the
settlement because the plaintiffs have failed to execute the
settlement documents.
settlement.

The plaintiffs are challenging the

The plaintiffs do not feel that every issue was

addressed at the settlement conference.
2).

(See Filing No. 149, at

The plaintiffs state three reasons why they are challenging

the settlement agreement.

First, the plaintiffs did not know

that the settlement agreement would end the entire case, because
the case was bifurcated.

(Id. at 3).

Second, the plaintiffs

thought that they needed to sign the settlement agreement to make
it binding.

(Id. at 4).

Third, the plaintiffs were not allowed

to leave the settlement conference, and therefore, thought they
no longer had a say in the matter.

(Id.).

The Court “has the inherent power to enforce a
settlement entered into by the parties in a pending case.”
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Joe

Hand Promotions, Inc., v. Zulic, No. 11-CV-1738, 2013 WL 1281993,
at *1 (E.D. Mo. March 26, 2013)(citation omitted).
agreement is governed by contract law.

A settlement

Chaganti & Associates v.

Nowotny, 470 F.3d 1215, 1221 (8th Cir. 2006).

“To have a

settlement agreement, there must be a definite offer and an
unconditional acceptance.”

Fleming Co. of Nebraska, Inc., v.

Michals, 230 Neb. 753, 755, 433 N.W.2d 505 (1988).

“The

essential elements of a valid settlement agreement are the
involvement of parties who are competent to contract, a proper
subject matter, legal consideration, mutuality of obligation, and
mutuality of agreement.”
1221.

Chaganti & Associates, 470 F.3d at

A settlement agreement does not have to be written and

signed to bind the parties.

Western Thrift and Loan Corp. v.

Rucci, 812 F.3d 722, 725 (8th Cir. 2016).

The record made in

open court is “sufficient to create an enforceable settlement
agreement, even though the parties did not memorialize the
agreement.”

Id.

The defendants direct the Court to Unitarian
Universalist Church of Minnetonka v. City of Wayzata, (“UUCM”),
in support of their motion to enforce the settlement.
Supp. 2d 1119 (D. Minn. 2012).

890 F.

In UUCM, the church was denied by

the city to build a new, larger church.

Id. at 1121.

As a

result, the church brought an action against the city claiming
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that the city violated its First Amendment rights and the
Religious Land Use and institutionalized Persons Act.
magistrate judge held a settlement conference.

Id.

A

After the parties

reached a settlement agreement, the terms were read into the
record, and the magistrate judge asked the parties directly
whether they accepted the terms as a full and final settlement.
Id. at 1121-22.

As a matter of procedure, the City Council had

to approve the settlement agreement.

After the settlement

conference, UUCM argued that they did not agree to material
terms, and a binding settlement was not formed.

The United

States District Court for the District of Minnesota held that an
agreement as to all essential terms was reached at the settlement
conference.

Id. at 1127.

The court stated that the

“‘contingency’ of City Council approval did not undermine the
formation of that settlement agreement.”

Id. at 1126.

In this case, the Court finds that the parties have
reached an enforceable settlement agreement.

On the record, the

parties agreed to the essential terms of the contract, i.e., that
the plaintiffs as a group would accept an offer of judgment for
$30,000, the City of Omaha would pay $60,000 in attorneys’ fees
and costs, and that each of the individual defendants would be
dismissed with prejudice (Filing No. 142 at 14-16).

Counsel for

both the plaintiffs and defendants stated that the above
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mentioned terms were agreed to by the parties.

In addition,

Magistrate Judge Zwart asked each of the five plaintiffs
individually if they participated in the settlement conference,
if they understood the terms, and if they agreed to the terms.
All five plaintiffs answered “Yes” to the questions.

Magistrate

Judge Zwart clearly explained that “it is a full and final
settlement of the case and there will be no renegotiation
thereafter.”

(Id. at 14).

Similar to the UUCM case, a binding

agreement was formed at the settlement conference, and the
plaintiffs cannot take back their agreement at the City Council
meeting or anytime thereafter.

The defendants are entitled to

enforce the settlement agreement.

The defendants’ motion to

enforce the settlement will be granted.

A separate judgment will

be entered against the City of Omaha in accordance with the Rule
68 Offer of Judgment.
DATED this 22nd day of July, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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