Buhecker et al v. Delta Air Lines, Inc.

Filing 76

ORDER that the Court Adopts the 67 Report and Recommendation. Defendant Delta Airline, Inc.'s 57 Motion to Enforce Settlement is Granted. Defendant Delta Airline, Inc.'s 40 Motion to Dismiss Second Amended Complaint is Denied without prejudice as moot. The Parties shall file a Stipulation and Order for Dismissal not later than 30 days from the entry of this Order. Signed by Judge Lloyd D. George on 12/13/2016. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRENDA PALMER, et al.,

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Plaintiffs,

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v.

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DELTA AIRLINES, INC.,

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Case No. 2:15-cv-00769-LDG (VCF)
ORDER

Defendant.

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Before the Court are Defendant Delta Airline, Inc.’s Motion to Dismiss Second

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Amended Complaint (#40), and Motion to Enforce Settlement (#57). The Court referred

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the latter motion to the Magistrate Judge, who has issued a Report and Recommendation

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(#67) that the motion to enforce settlement be granted. Having considered the papers and

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pleadings, the parties’ Notice of Resolution, the Report and Recommendation and the

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objection and responses thereto, the Court will adopt the Report and Recommendation, will

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grant Delta’s motion to enforce settlement, and will deny the motion to dismiss as moot.

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Plaintiff James Malcolm, who is representing himself in this action, is the only party

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who has filed an objection to the Report and Recommendation that Delta’s motion to

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enforce settlement be granted. Malcolm does not dispute the Magistrate Judge’s report of

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the relevant facts, and the Court adopts those factual findings. Briefly stated, Malcolm’s

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prior counsel and counsel for the defendant reached an enforceable settlement, and filed a

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notice with this Court informing the Court that the parties had reached a settlem ent.

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In opposing the motion to enforce, and in his objection to the Report and

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Recommendation, Malcolm argues that he had not actually authorized his prior counsel to

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enter into a settlement. As correctly noted by the Magistrate Judge, however, prior

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counsel’s actual authority to reach a settlement on behalf of Malcolm is irrelevant in

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determining whether the Court must enforce, as against Malcolm, the settlement that Delta

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reached with his prior counsel. On that issue, the only relevant consideration is whether

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prior counsel represented Malcolm when the settlement was reached. As reported by the

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Magistrate Judge, and confirmed by this Court’s docket, prior counsel did represent

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Malcolm at that time. Accordingly, the Court must enforce the settlement.

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Pursuant to the Notice of Resolution filed by the parties, the parties reached a

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settlement which obviated the need for this Court to consider Delta’s motion to dismiss the

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Second Amended Complaint. The parties further indicated they would be filing a

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Stipulation and Order for Dismissal of this matter. Accordingly, the Court will deny the

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motion to dismiss, without prejudice, as moot.

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Accordingly,

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THE COURT ADOPTS the Report and Recommendation (#67);

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THE COURT ORDERS that Defendant Delta Airline, Inc.’s Motion to Enforce

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Settlement (#57) is GRANTED;

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THE COURT FURTHER ORDERS that Defendant Delta Airline, Inc.’s Motion to

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Dismiss Second Amended Complaint (#40) is DENIED, without prejudice, as MOOT.

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THE COURT FURTHER ORDERS that, in light of the noticed Resolution of this

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matter, the Parties shall file a Stipulation and Order for Dismissal not later than 30 days

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from the entry of this Order.

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DATED this ______ day of December, 2016.

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Lloyd D. George
United States District Judge

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