Roy et al v. NH Department of Corrections, Commissioner, et al

Filing 67

ORDER granting 49 Defendants' Motion to Enforce Settlement. So Ordered by Judge Steven J. McAuliffe.(jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Steven Roy, Charles Wolff,
Eric Chaplin, Joel Smith,
John Gosselin, Bruce Usher,
William Johnson, and
Prayer F. Farrow,
Plaintiffs
v.

Case No. 09-cv-75-SM
Opinion No. 2012 DNH 019

Commissioner, New Hampshire
Department of Corrections; et al.
Defendants
O R D E R
Defendants move to enforce a settlement of Plaintiff John
Gosselin’s underlying claims, a settlement to which, they say,
Gosselin and his attorney agreed.

Gosselin objects to the

motion, claiming that he did not agree to settle his underlying
claims, or, he was coerced into doing so, and that to the extent
his legal counsel agreed to a settlement on his behalf, counsel
was not authorized to do so.

An evidentiary hearing was held on

November 30, 2011.

Having heard testimony from Gosselin and his counsel,
Lawrence A. Vogelman, Esq., and having considered the evidence
presented, I find the following facts by a preponderance of the
evidence:

1.

Attorney Vogelman represented Gosselin in the

underlying civil case.

2.

Gosselin and Attorney Vogelman voluntarily participated

in mediation proceedings conducted by an experienced and highly
regarded mediator, William Mulvey, Esq.

3.

Before the mediation session began, Attorney Vogelman

explained to Gosselin that the mediator would facilitate
discussions aimed at settling his case and, if a settlement was
achieved, that would end the litigation.

4.

The mediator, Attorney Mulvey, also explained to

Gosselin, before mediation efforts began, that if an agreement
was reached the underlying case would be over.

5.

Gosselin understood that the purpose and goal of the

mediation effort was to settle his claims if possible.

As

reflected in Exhibits A and F, documents prepared by Gosselin, he
understood that if a settlement agreement was reached, it
necessarily would include dismissal of his claims in exchange for
whatever consideration he accepted from the defendants in
settlement.

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6.

The mediation process was successful.

The parties

agreed to settle the case on terms described in Exhibit B — a
handwritten Memorandum of Understanding (MOU) dated November 16,
2010.

7.

Attorney Vogelman explained the proposed settlement

terms to Gosselin before Gosselin voluntarily signed the
Memorandum of Understanding (Exhibit B).

Gosselin signed the MOU

with knowledge that he was thereby evidencing his agreement to
settle the case on those terms, and he fully understood that the
pending litigation would be over — his claims would be dismissed
in exchange for the consideration to be provided by the
defendants.

8.

A more formal document memorializing the settlement was

to be prepared and, if Attorney Vogelman found that document to
be consistent with the agreed-upon terms, Gosselin was expected
to sign it.

That more formal agreement was produced and Attorney

Vogelman found it to be consistent and acceptable, but Gosselin
refused to sign it.

9.

Attorney Vogelman also agreed to settle Gosselin’s

case, on Gosselin’s behalf, on the terms set out in the MOU.
doing so, Attorney Vogelman acted within the scope of his

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In

representation of Gosselin, and with Gosselin’s authorization.
Gosselin well knew the terms and effect of the settlement, and
well knew that Attorney Vogelman was acting on his behalf in
agreeing to the settlement terms.

Gosselin was aware that

Attorney Vogelman agreed to and signed the MOU, yet he raised no
objection or protest, and gave no indication to anyone that
Attorney Vogelman was not authorized to settle the case on his
behalf.

10.

Neither Attorney Vogelman nor the mediator, Attorney

Mulvey, nor any other person, coerced, or harassed, or misled
Gosselin in any respect with regard to the terms of the
settlement, or the effect of his agreement to settle on the terms
described in Exhibit B (i.e., the litigation would be over and
his claims dismissed).

11.

Gosselin’s post-settlement claims that he was somehow

“coerced” into accepting the terms set out in the MOU are
rejected as not supported and not credible.

Gosselin’s post-

settlement claim that he did not agree to dismiss his suit, but
only agreed to accept the consideration offered by defendants,
with no agreement on his part to dismiss his claims, is not
credible and is rejected as not true.

Gosselin understood that

the point of the mediation effort was to resolve the parties’

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dispute if possible, and he understood that his agreement to
settle necessarily included terminating the litigation by
dismissing his claims.

Under applicable law, an attorney acting within the scope of
his authority can effectively settle pending litigation and bind
his client to that settlement.

Michaud v. Michaud, 932 F.2d 77

(1st Cir. 1991); Bock v. Lundstrom, 133 N.H. 161 (1990); Halstead
v. Murray, 130 N.H. 560, 565 (1988); Manchester Housing Authority
v. Zyla, 118 N.H. 268, 269 (1978).

Attorney Vogelman agreed to

settle Gosselin’s case on the terms set out in the MOU and he
agreed to dismissal of Gosselin’s claims as a necessary and
integral part of the agreement to settle the pending litigation,
and, in doing so, he acted within the scope of his authority,
thereby binding Gosselin to the settlement’s terms.

Gosselin

also personally agreed to settle his case on the terms described
in the MOU, with knowledge that “settlement” necessarily included
dropping his claims in the litigation as an integral part of any
settlement.

Gosselin agreed to the settlement knowingly and

voluntarily; he was not coerced, harassed, misled, or deceived in
any manner.

The settlement agreement entered into by Gosselin and his
attorney is binding and enforceable.

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Accordingly, the

defendants’ motion to enforce the settlement by dismissing
Gosselin’s claims is granted.

Conclusion
Gosselin’s claims are dismissed with prejudice by reason of
settlement.

The court does not retain jurisdiction over the

settlement agreement for future enforcement purposes.

The clerk

shall close this case.

SO ORDERED.
____________________________
Steven J. McAuliffe
Chief Judge
January 25, 2012
cc:

David P. Slawsky, Esq.
Lawrence A. Vogelman, Esq.
John Gosselin, pro se
Danielle L. Pacik, Esq.
Nancy J. Smith, Esq.
Anne M. Edwards, Esq.

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