SWIFT v. PANDEY et al
Filing
529
OPINION. Signed by Judge Brian R. Martinotti on 1/27/2025. (mxw, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ROBERT SWIFT,
Plaintiff,
v.
Case No. 2:13-cv-00650 (BRM)
RAMESH PANDEY, et al.,
OPINION
Defendants.
MARTINOTTI, DISTRICT JUDGE
Before the Court is pro se Plaintiff Robert Swift’s (“Plaintiff”) unopposed Motion to
Enforce the Settlement Agreement between Plaintiff and Defendants Ramesh Pandey and Bhuwan
Pandey (the “Pandey Defendants”) related to Defendant Xechem (India) Pvt, Ltd. (“Xechem
India”). (ECF No. 528.) Having reviewed Plaintiff’s submission and having declined to hold oral
argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below and
for good cause having been shown, Plaintiff’s Motion to Enforce Settlement (ECF No. 528) is
DENIED.
I.
BACKGROUND
The Court has set forth, at length, the factual and procedural background as it pertains to
this action in its Opinions dated August 10, 2016, March 27, 2017, August 31, 2017, October 12,
2017, May 22, 2018, May 2, 2022, and November 28, 2023. (ECF Nos. 165, 197, 222, 229, 264,
444, 513.) The Court hereby incorporates same herein and sets forth only the relevant factual and
procedural background as it relates to Plaintiff’s Motion to Enforce Settlement.
A. Settlement Agreement Between Plaintiff and the Pandey Defendants
A bench trial took place before the Court from August 9, 2022 through August 12, 2022.
(See ECF Nos. 473–76, 496–99.) During trial, the Court engaged in settlement discussions with
Plaintiff and the Pandey Defendants, at which time they came to a partial resolution (an oral
settlement agreement) regarding Xechem India. (See ECF No. 497 (Trial Tr. Vol. II) at 220–21,
229–30; ECF No. 498 (Trial Tr. Vol. III) at 283–84; ECF No. 499 (Trial Tr. Vol. IV) at 291; ECF
No. 500 (10/05/2022 Hr’g Tr.) at 2–5.) The Pandey Defendants, both individually and through
counsel, represented: (1) they would be willing to transfer to Plaintiff any and all rights and
interests they have, and any assets that may exist, in Xechem India; and (2) they would assist in
cooperating with Plaintiff to help efficiently facilitate this transfer, including revitalizing or
reestablishing Xechem India as a corporation in India, provided this process would be at no cost
to the Pandey Defendants and provided Plaintiff would give the Pandey Defendants any paperwork
necessary for this process. (See ECF No. 497 at 220–21, 229–30; ECF No. 498 at 283–84; ECF
No. 499 at 291; ECF No. 500 at 2–5.) This oral settlement agreement was memorialized on the
record during trial:
THE COURT: We are back on the record. Just for purposes of the
record I'd like to indicate what has transpired. With permission of
counsel and [Plaintiff] Dr. Swift, I spoke with each separately in an
effort to resolve the matter. There is a partial resolution regarding
the India corporation [Xechem India]. And as I understand it, the
[Pandey Defendants] will turn over all their rights and assets that
they have in that corporation to Dr. Swift, but will cooperate,
provided it is at no cost to them, to help Dr. Swift revitalize or
reestablish the corporation in India. And I'm adding this in, but I
assume it's not going to be an issue, will do so efficiently. In other
words, counsel, if Dr. Swift sends an e-mail, they are not going to
sit on it for three days. They're going to move it as efficiently and
effectively as possible. Is that fair?
MR. MARKIN [counsel for the Pandey Defendants]: Yes.
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THE COURT: Is that fair, Dr. Swift?
MR. SWIFT: Yes. Will the Court maintain any jurisdiction to
enforce this?
THE COURT: I'll retain jurisdiction to enforce cooperation.
MR. SWIFT: Thank you, Your Honor.
THE COURT: And Dr. and Colonel Pandey, you are okay with that
as far as signing over any and all rights that you have in India and
cooperating with Dr. Swift? Colonel Pandey, yes?
MR. R. PANDEY: Yes.
MR. B. PANDEY: Yes, Your Honor.
MR. MARKIN: Just to clarify, whatever Swift needs done is going
to come from him. He's going to give it to us and say, Hey, I need –
THE COURT: Right.
MR. MARKIN: We're not going to put anything together.
MR. SWIFT: Gene, I have to do it all.
THE COURT: But, counsel, you are going to assist for this
component?
MR. MARKIN: Yes.
(ECF No. 497 at 229–30.) 1
1
See also ECF No. 498 at 283–84 (“THE COURT: . . . In the meantime, irrespective of this
component, it’s clear that Dr. Swift is going to get all the rights of India and your clients are going
to cooperate and work with him to facilitate that transfer. Is that correct, Mr. Markin? MR.
MARKIN: That’s correct, as long as it doesn’t cost them money or involve any hardship, that’s
fine. . . . If he sends us the paperwork for them to sign, they’ll sign it. THE COURT: Is that okay,
Dr. Swift? MR. SWIFT: Yes. THE COURT: And I’ll retain jurisdiction over that issue if there’s
any issues. And I’ll ask that they cooperate expeditiously as best they can, just to move it forward
for the doctor. MR. MARKIN: Sure, Your Honor.”); ECF No. 499 at 291 (“This matter was tried
without a jury on August 9 and 10. On August 10, with permission of both parties, the Court
engaged in settlement discussions, at which time the parties came to an agreement that the [Pandey
Defendants] would transfer any and all [of] their rights and title in Xechem India, hereinafter
referred to as India, to [Plaintiff] and cooperate with him to facilitate the transfer.”).
3
At the close of Plaintiff’s case-in-chief, the Court granted the Pandey Defendants’ motion
to dismiss all of Plaintiff’s remaining claims pursuant to Federal Rule of Civil Procedure 52(c).
(See ECF No. 499 at 292–301.) After a careful review of the record, the testimony, and the
evidence, the Court made and provided its findings of fact and conclusions of law on the record
on August 12, 2022. (See id.) The Court found Plaintiff did not prove the elements of his remaining
claims for unjust enrichment or quantum meruit against either the Pandey Defendants or Xechem
India. (See id.) Accordingly, on August 17, 2022, the Court entered final judgment in favor of the
Pandey Defendants and against Plaintiff on all claims. (ECF No. 481.) However, the Court
explicitly retained jurisdiction over the settlement agreement between Plaintiff and the Pandey
Defendants related to Xechem India for the purpose of enforcing that agreement. (See ECF No.
497 at 229–30; ECF No. 498 at 283–84; ECF No. 500 at 5.)
B. Plaintiff’s Post-Trial Request for an Amended Final Judgment
On September 12, 2022, Plaintiff filed a letter with the Court requesting an Order and
Judgment regarding (1) a default judgment against Xechem India and (2) the Pandey Defendants’
agreement to “transfer 100% of Xechem (India) Pvt., Ltd. to Plaintiff,” and (3) the Court’s
retention of jurisdiction to enforce this agreement between the parties. (ECF No. 482.) The Court
construed Plaintiff’s letter as a request to amend the Final Judgment to reflect, inter alia, the
Court’s retention of jurisdiction to enforce the settlement agreement between Plaintiff and the
Pandey Defendants to facilitate the transfer of Xechem India to Plaintiff. (See ECF No. 486 at 1–
2.)
The next day, on September 13, 2022, Plaintiff filed with the United States Court of
Appeals for the Third Circuit (the “Third Circuit”) a Notice of Appeal from the Final Judgment.
(ECF No. 483.) Thereafter, the Court issued an order noting it lacked the authority to grant
4
Plaintiff’s letter request because of Plaintiff’s pending appeal with the Third Circuit. (ECF No.
486 at 2.) The Court also issued a Text Order instructing Plaintiff and defense counsel to meet and
confer and submit a proposed amended final judgment reflecting the issues raised in Plaintiff’s
September 12, 2022 letter. (ECF No. 484.) The Court further informed the parties to notify the
Court by September 26, 2022 if they were unable to agree on a form of amended final judgment.
(Id.)
On September 22, 2022, Plaintiff submitted a letter to the Court stating he and defense
counsel “could not agree on the text of the unjust enrichment judgment against [the Pandey]
Defendants for failure to transfer 66-2/3% of Xechem (India) Pvt., Ltd. to Plaintiff and the
agreement for [the Pandey] Defendants to transfer 100% of Xechem (India) Pvt, Ltd. to Plaintiff.”
(ECF No. 488.) Plaintiff attached to the letter a proposed amended final judgment and a proposed
default judgment as to Xechem India. (ECF Nos. 488-1, 488-2.)
On September 26, 2022, the Pandey Defendants’ counsel submitted a letter in response to
Plaintiff's September 22, 2022 letter and in objection to Plaintiff's proposed orders of judgment,
stating Plaintiff's proposed orders “contain findings of facts and conclusions of law that were never
part of the record and flatly contradict the Court's findings in granting [the Pandey] Defendants’
motion for directed verdict at the conclusion of Plaintiff's case.” (ECF No. 489 at 1.) The Pandey
Defendants’ counsel also stated it “had prepared and forwarded to Plaintiff [a] proposed form of
Order to capture the Court's ruling [during trial] in connection with [the Pandey] Defendants’
narrow agreement to transfer their interests in Xechem India to Plaintiff and cooperate in his efforts
to revive Xechem India” and requested Plaintiff submit their version to the Court along with his
but he failed to do so. (Id.) On September 27, 2022, Plaintiff submitted a brief response letter
5
noting defense counsel “does not represent Xechem India” and arguing he “met his burden of
unjust enrichment for the 66-2/3% of Xechem India and this should be reflected.” (ECF No. 490.)
On October 5, 2022, the Court held a telephone conference with Plaintiff and the Pandey
Defendants to discuss post-trial issues, including the status of the Pandey Defendants’ agreement
to transfer any and all rights and interests they have, and any assets that may exist, in Xechem
India to Plaintiff. (See ECF Nos. 491, 500.) During the conference, the Court ordered the Pandey
Defendants to revise the language in their proposed amended final judgment to state they “will
effectuate a transfer of any and all interests that they have” in Xechem India to Plaintiff “in an
expeditious manner” and again stated the Court would retain jurisdiction over this issue. (See ECF
No. 500 at 2–5.) The Court did not receive a revised joint proposed amended final judgment from
the parties.
C. Plaintiff’s Motion to Enforce Settlement
On September 28, 2023, Plaintiff filed his first Motion to Enforce the Settlement
Agreement between him and the Pandey Defendants, i.e., the Pandey Defendants’ agreement to
transfer to Plaintiff any and all rights and interests they have, and any assets that may exist, in
Xechem India, provided this process would be at no cost to the Pandey Defendants and provided
Plaintiff would give the Pandey Defendants any paperwork necessary for this process. (ECF No.
507.) Plaintiff asserted the Pandey Defendants failed to cooperate with him “to transfer all their
right, title, and interest and assets in Xechem India to Plaintiff,” and Plaintiff requested the Court's
intervention to require the Pandey Defendants to “expeditiously” cooperate with Plaintiff in
accordance with the settlement agreement terms. (ECF No. 507 at 2–3.) On November 28, 2023,
this Court granted Plaintiff’s unopposed Motion to Enforce the Settlement Agreement (ECF No.
512) and entered an Amended Final Judgment (ECF No. 515).
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D. Plaintiff’s Motions for Default Judgment
On January 17, 2023, while Plaintiff’s appeal remained pending with the Third Circuit,
Plaintiff filed a third motion for default judgment against Xechem India. (ECF No. 503.) On
January 20, 2023, the Court issued a text order stating it would not take any action on Plaintiff’s
third motion for default judgment against Xechem India until the Third Circuit determined the
issue of appellate jurisdiction. (ECF No. 504.) On June 23, 2023, the Third Circuit issued an order
staying Plaintiff’s appeal pending this Court’s decision on Plaintiff’s request for the Court to enter
an amended final judgment. (ECF No. 505.)
On June 30, 2023, following the Third Circuit’s June 23, 2023 order staying his appeal,
Plaintiff filed a fourth motion for default Judgment against Xechem India, which appeared
virtually identical to his third motion for default judgment. (Compare ECF No. 506, with ECF No.
503.) This Court denied Plaintiff’s motion for default judgment, finding that Plaintiff untimely
served Xechem India under Federal Rule of Civil Procedure 4(m), and therefore the Court lacked
personal jurisdiction over Xechem India and could not issue a default judgment against it. (ECF
No. 516 at 18–19.) The Court also found that Plaintiff failed to show good cause for not complying
with the applicable time limit in Federal Rule of Civil Procedure 4(m) and that no additional factors
warranted a discretionary extension of time for service. Moreover, timely service of process would
not have affected the Court’s decision on Plaintiff’s motion:
Even assuming, arguendo, Plaintiff had timely served Xechem India
via serving its domestic officer Ramesh Pandey, this would not have
changed the outcome. After carefully reviewing and assessing the
record and evidence presented at trial, the Court addressed the
merits of Plaintiff’s claims and concluded Plaintiff failed to prove
the elements of his alleged causes of action against Xechem India.
(See ECF No. 499 at 292–301.)
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(ECF No. 516 at 21.) This Court therefore denied Plaintiff’s fourth motion for default judgment
and dismissed all claims against Xechem India with prejudice. (Id. at 22.)
E. Plaintiff’s Second Motion to Enforce the Settlement Agreement
On January 17, 2024, Plaintiff filed a letter with the Court requesting: (1) the Court
“intervene” to enforce the parties’ settlement agreement and “sanction Defendants by ordering
compliance and paying Plaintiff’s fees and costs,” or, in the alternative, (2) the Court reconsider
Plaintiff’s Motion for a Default Judgment against Xechem India. (ECF No. 521 at 1–2.) The Court
denied Plaintiff’s requests. (See ECF No. 522.) Plaintiff filed another letter on August 16, 2024,
requesting the Court “use its power to compel” Pandey Defendants to adhere to the parties’
settlement agreement. (ECF No. 527.)
Plaintiff filed the instant Motion to Enforce the Settlement Agreement on September 27,
2024. (ECF No. 528.) In his Motion, Plaintiff requests
the Court take immediate action to compel the [Pandey Defendants]
to sign the POA at an Indian Consulate and obtain the attestation
stamp necessary for the POA to be valid in India, and to cooperate
with Plaintiff for other documents that may be necessary to transfer
their right, title, and interest and assets in Xechem India to Plaintiff.
(Id. at 4.) Plaintiff further requests that Pandey Defendants be ordered to pay all costs and
expenses, including those related to effectuating the Pandey Defendants’ signature on the POA.
(Id.)
II.
LEGAL STANDARD
A district court may exercise jurisdiction over a petition to enforce a settlement if a
settlement is “part of the record, incorporated into an order of the district court, or the district court
has manifested an intent to retain jurisdiction.” Sawka v. Healtheast, Inc., 989 F.2d 138, 141 (3d
Cir. 1993); see, e.g., Fazio v. JC Penney, 387 F. App’x 252, 253 (3d Cir. 2010) (“The District
8
Court had jurisdiction over the motion to enforce the settlement because it retained jurisdiction
over the matter in its March 10, 2009, order.” (citing Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 381 (1994))). “An agreement to settle a [lawsuit], voluntarily entered into, is binding
upon the parties, whether or not made in the presence of the court, and even in the absence of a
writing.” Zong v. Merrill Lynch Pierce Fenner & Smith, Inc., 632 F. App’x 692, 694 (3d Cir. 2015)
(quoting Green v. John H. Lewis & Co., 436 F.2d 389, 390 (3d Cir. 1971)). The Third Circuit “has
long recognized a federal district court’s equitable jurisdiction to enforce settlement agreements
based upon oral representations made by the litigants before it.” Id. at 694.
Courts treat a motion to enforce a settlement under the same standard as a summary
judgment motion and will “grant the motion when the moving party demonstrates that there is no
genuine dispute of material fact and the evidence establishes the moving party’s entitlement to
judgment as a matter of law.” Ortho-Clinical Diagnostics, Inc. v. Fulcrum Clinical Lab’ys, Inc.,
Civ. A. No. 21-02530, 2023 WL 3983877, at *2 (D.N.J. June 13, 2013) (citations omitted).
In addition, “New Jersey has a strong public policy in favor of settlements.” McDonnell v.
Engine Distribs., Civ. A. No. 03-01999, 2007 WL 2814628, at *3 (D.N.J. Sept. 24, 2007), aff’d,
314 App’x 509 (3d Cir. 2009) (citing Nolan v. Lee Ho, 577 A.2d 143, 146 (N.J. 1990)). “Courts
will therefore ‘strain to give effect to the terms of a settlement wherever possible.’” Id. at *3
(quoting Dep’t of Pub. Advoc., Div. of Rate Couns. v. Bd. of Pub. Utils., 503 A.2d 331, 333 (N.J.
App. Div. 1985)).
III.
DECISION
The Court has jurisdiction over Plaintiff’s Motion to Enforce the Settlement Agreement
because the Court explicitly retained jurisdiction over this agreement, which is part of the record,
9
between Plaintiff and the Pandey Defendants, and the reinforcement of same. (ECF No. 497 at
229–30; ECF No. 498 at 283–84; ECF No. 500 at 5.) See Sawka, 989 F.2d at 141.
Based on the record before the Court, the Court must deny Plaintiff’s second Motion to
Enforce the Settlement Agreement between him and the Pandey Defendants, as the Court has
already granted such relief to Plaintiff in response to his first motion to enforce the settlement
agreement. (See generally ECF Nos. 507, 512, 513.) See also McCrimmon v. Johnson, Civ. A. No.
18-16281, 2019 WL 2108658, at *1 n.1 (D.N.J. May 14, 2019) (dismissing as moot plaintiff’s
motion to proceed in forma pauperis because it had already granted plaintiff’s application to
proceed in forma pauperis); Missouri v. Amazon.com, Inc., Civ. A. No. 19-13525, 2020 WL
13580911, at *1 (D.N.J. Feb. 26, 2020) (dismissing plaintiff’s motion for leave to amend as moot
after the court had already sua sponte given plaintiff leave to amend his complaint); Par Pharm.,
Inc. v. Luitpold Pharms., Inc., Civ. A. No. 16-02290, 2017 WL 916437, at *1 (D.N.J. Mar. 8,
2017) (denying defendants’ request for judgment on their counterclaim as moot because
“judgement was already granted on this claim”); Hines v. Rimtec Corp., Civ. A. No. 07-00966,
2009 WL 10690507, at *7 (D.N.J. June 4, 2009) (“However, because the Court has already granted
leave to assert such claim, Plaintiff’s present motion . . . for leave to amend is dismissed as moot.”)
As the Court noted in its previous Opinion in this matter, no genuine dispute of material
fact exists as related to the settlement agreement between Plaintiff and the Pandey Defendants.
(ECF No. 511 at 8–9.) It is undisputed that Plaintiff and the Pandey Defendants entered into a valid
settlement agreement for the Pandey Defendants to transfer to Plaintiff any and all rights and
10
interests they have, and any assets that may exist, in Xechem India. 2 Accordingly, this Court finds
this settlement agreement is binding on Plaintiff and the Pandey Defendants.
Therefore, Plaintiff’s unopposed Motion to Enforce the Settlement Agreement between
him and the Pandey Defendants is DENIED AS MOOT.
IV.
CONCLUSION
For the reasons set forth above, Plaintiff’s unopposed Motion to Enforce Settlement
Agreement (ECF No. 528) is DENIED AS MOOT. An appropriate order follows.
Date: January 27, 2025
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
2
Provided the process would be at no cost to the Pandey Defendants and provided Plaintiff would
give the Pandey Defendants any paperwork necessary for this proceed. (ECF No. 511 at *9.) This
agreement was placed on the record. (Id.)
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