Goodkin v. Phillips, Harper & Harper, LLC

Filing 44

ORDER Granting 38 Motion to Enforce Settlement. FURTHER ORDERED that the Clerk shall enter judgment against "Alvie Bennet, LLC d.b.a. Phillips, Harper & Harper, LLC" and in favor of Plaintiff in the amount of $9500, and close the case, accordingly. FURTHER ORDERED that the case is DISMISSED with prejudice. Signed by Chief Judge Robert C. Jones on 2/24/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARY GOODKIN,

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This case arises out of alleged abusive debt collection activities and invasion of privacy.

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Plaintiff,
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vs.
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PHILLIPS, HARPER & HARPER, LLC,
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Defendant.

2:10-cv-01223-RCJ-VCF
ORDER

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Pending before the Court is Plaintiff’s motion to enforce a settlement agreement. For the reasons

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given herein, the Court grants the motion.

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I.

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FACTS AND PROCEDURAL HISTORY
Defendant Phillips, Harper & Harper, LLC (“Phillips”) represented non-party Asset

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Acceptance, LLC in the latter’s state court suit against Plaintiff Mary Goodkin. (See First Am.

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Compl. ¶ 9, July 22, 2010, ECF No. 4). The state court granted a default judgment against

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Plaintiff, which Plaintiff successfully moved to have set aside due to lack of notice. (See id.

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¶¶ 13–16). The state court then ordered Asset Acceptance to remit $1779 that had been

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garnished from Plaintiff’s wages. (Id. ¶ 16). Defendant subsequently sent a payment reminder to

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Plaintiff and, along with Asset Acceptance, garnished an additional $296.49 from Plaintiff’s

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wages in violation of the court order. (Id. ¶¶ 20–21). Asset Acceptance has failed to remit either

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the $1779 to Plaintiff pursuant to the state court order or the additional $296.49 it garnished from

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Plaintiff’s wages after the court order issued. (Id. ¶ 23).

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Plaintiff sued Defendant in this Court for violations of the Fair Debt Collection Practices

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Act (“FDCPA”) and invasion of privacy. Plaintiff filed the First Amended Complaint (“FAC”),

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which lists the same causes of action, the following day. Defendant moved to dismiss, and

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Plaintiff moved for offensive summary judgment. Based upon the parties’ representations to the

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Court of an impending settlement, the Court vacated a hearing set for those two motions, and

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after a long period of inactivity in the case without any settlement, the Court denied the motions

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without prejudice. The parties then represented to the Court via a joint status report that they

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had agreed to settle the case for $9500 in exchange for the release of all claims and dismissal

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with prejudice. (See Joint Status Report 1, Sept. 16, 2011, ECF No. 36). The report also

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indicated that Attorney Gerald Phillips, the sole equity holder of Defendant law firm, had

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recently passed away and that Defendant’s assets were therefore in probate. (See id. 1). The

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parties also represented that although the settlement had been agreed to, Defendant had not yet

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made payment to Plaintiff, and Plaintiff had not yet signed a release or dismissed the case, i.e.,

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the settlement had been agreed to but had not been executed. (See id. 2). Plaintiff has filed a

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motion to enforce the settlement.

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II.

LEGAL STANDARDS
A federal court has the power to enforce by motion a settlement agreement in a pending

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case. In re City Equities Anaheim, Ltd., 22 F.3d 954, 957 (9th Cir. 1994). In Nevada, the

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enforceability of a settlement agreement is governed by contract law. May v. Anderson, 119 P.3d

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1254, 1257 (Nev. 2005). Therefore, there must be mutual, objective manifestation of assent to

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material terms, as well as consideration, by the parties or by agents with authority to bind the

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parties.

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III.

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ANALYSIS
As noted, supra, the parties have represented to the Court on the record that they have

agreed to the settlement under the following terms: Defendant is to pay Plaintiff $9500, and
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Plaintiff is to sign a release and dismiss the case with prejudice. Plaintiff argues that Defendant

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law firm continues to do business, so it cannot claim that it has no assets available to pay the

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settlement due to the probate of Mr. Phillips’s estate. Defendant must, she concludes, have some

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working capital with which it operates. The Court cannot reach any assets in probate directly,

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but the state court’s in rem jurisdiction over the estate’s assets is no bar to the entry of an in

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personam money judgment, which may then admitted to probate or otherwise enforced in the

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state courts. See Markham v. Allen, 326 U.S. 490, 494 (1946) (“[F]ederal courts of equity have

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jurisdiction to entertain suits ‘in favor of creditors, legatees and heirs’ and other claimants

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against a decedent’s estate ‘to establish their claims’ so long as the federal court does not

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interfere with the probate proceedings or assume general jurisdiction of the probate or control of

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the property in the custody of the state court.”).

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Defendant admits the unexecuted settlement agreement but responds that its assets are

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now a part of Mr. Phillips’s estate. Defendant also notes that “Phillips, Harper & Harper, LLC”

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is a fictitious name and that there is no such entity registered to do business with the Nevada

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Secretary of State. Defendant’s official name is “Alvie Bennett, LLC,” although it previously

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did business as “Phillips, Harper & Harper, LLC.” Mr. Phillips was the managing member of

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Alvie Bennett, but he committed suicide on March 13, 2011. Alvie Bennett is now listed as an

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asset of Mr. Phillips’s estate in Washoe County District Court Case No. PR11-00308. Mr.

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Phillips’s handwritten will has been admitted to probate, and Attorney Robert G. Berry is the

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administrator of the estate. Defendant argues that the estate has several creditors and believes

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Plaintiff’s claim should be asserted in probate along with the other claims via the normal claims

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notice and settlement procedures under state law.

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Plaintiff replies that Defendant is attempting to protect itself from a judgment by

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claiming that although it has held itself out as an LLC law firm, its assets are all a part of Mr.

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Phillips’s personal estate. Plaintiff argues that she is entitled to a money judgment of $9500
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against both Phillips, Harper & Harper, LLC and Alvie Bennet, LLC, due to Defendant’s

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revelation that the former entity is a fictitious name for the former.

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The Court will grant Plaintiff’s motion and enter a judgment for $9500 against “Alvie

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Bennet, LLC, d.b.a. Phillips, Harper & Harper, LLC.” Against which property Plaintiff can

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collect on that judgment, whether in probate court or otherwise, is a matter for the state courts.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Enforce Settlement Agreement (ECF No.
38) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment against “Alvie Bennet,

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LLC, d.b.a. Phillips, Harper & Harper, LLC” and in favor of Plaintiff in the amount of $9500,

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and close the case, accordingly.

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IT IS FURTHER ORDERED that the case is DISMISSED with prejudice.

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IT IS SO ORDERED.

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DATED this 24th day of February,2012.
Dated this 6th day of February, 2012.

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_____________________________________
ROBERT C. JONES
United States District Judge

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