Wu v. Jewell
Filing
107
MEMORANDUM OPINION AND ORDER y Sr. District Judge Robert C. Brack DENYING 58 MOTION to Set Aside 57 Order Dismissing Case; AND DISMISSING FOR LACK OF JURISDICTION 65 MOTION to Set Aside. b (yc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LIMING WU,
Plaintiff,
v.
No. CIV 14-0150 RB/KRS
consolidated with
17cv0113 RB/KRS
18cv0813 RB/KRS
RYAN ZINKE, Secretary of the United States
Department of the Interior, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Ms. Liming Wu’s Motions to Set Aside Stipulated
Order of Dismissal with Prejudice, filed on May 31, 2018 (Doc. 58; 1 17cv0113, Doc. 42), and Ms.
Wu’s Motions to Set Aside Settlement Agreement and Order of (sic) Granting Defendant’s Motion
to Enforce Settlement Agreement, filed on August 20, 2018 (Doc. 65; 17cv0113, Doc. 56).
I.
Factual and Procedural Background
Ms. Liming Wu was employed as a geologist with the Bureau of Land Management
(BLM), an agency of the United States Department of the Interior (DOI). (Doc. 74 (4th Am.
Compl.) ¶ 4.) In early 2014, Ms. Wu, acting pro se, filed her original civil rights complaint against
the DOI in this Court. (See Doc. 1.) She retained counsel and filed two amended complaints,
bringing claims for race, national origin, and age discrimination; retaliation; and negligence under
federal and state law. (See Docs. 4; 11-1.)
In June 2015, Ms. Wu, accompanied by her son and represented by her attorney, Ms.
Katherine Ferlic, attended a mediation with the DOI. (See Doc. 45.) The parties did not settle that
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All citations to the docket in this Opinion refer to documents in 14cv0150 unless otherwise specified.
day, but the DOI left its settlement offer open. (See id.; see also Doc. 61 at 2.) After further
negotiations, the parties settled on terms and signed a settlement agreement (the Agreement) on
July 22, 2015. (Doc. 53-1.) The Agreement provided that any revocation must be delivered within
one week, or no later than July 29, 2015, to be valid. (See id. ¶ 8; 61 at 2.) On July 27, 2015, Ms.
Wu had a change of heart and informed her attorney that she wanted to revoke the Agreement.
(See Doc. 58 at 3.) She and Ms. Ferlic met on July 28, 2015, and discussed the matter for much of
the day. (Id. at 9.) That evening, Ms. Ferlic directed her assistant to deliver the revocation letter to
FedEx. (Id.) FedEx delivered the letter on July 30, 2015, one day after the agreed-upon deadline.
(See id. at 25.)
Unaware that the letter would arrive after the deadline, Ms. Ferlic filed a motion to inform
the Court that the parties were still negotiating settlement and to request an extension of certain
deadlines. (See Doc. 49.) Ms. Wu was ordered to return to work on August 3, 2015. (See Doc. 58
at 5.) Under great stress due to a burdensome work assignment, Ms. Wu lost consciousness at her
home early on August 4, fell, and hit her head, suffering a traumatic brain injury. (See id.)
On August 5, 2015, citing Ms. Wu’s untimely revocation, the DOI moved to enforce the
parties’ Agreement. (Doc. 53.) Ms. Wu filed a notice of consent to the DOI’s motion—and of her
intent to abide by the Agreement—on the same day. (Doc. 54.) The Court granted the DOI’s
motion. (Doc. 55.) Within a week, Ms. Wu filed a stipulated motion to dismiss the lawsuit, and
the Court entered its stipulated order dismissing the case with prejudice. (Docs. 56; 57.)
Pursuant to the terms of the Agreement, the DOI paid Ms. Wu $200,000 and promised to
send her a neutral letter of recommendation, and Ms. Wu retired from federal service. (See Doc.
53-1 ¶¶ 7, 18.) Ms. Wu also agreed to withdraw and dismiss all of her complaints and appeals then
pending, including: (1) her appeal before the Merit Systems Protection Board (MSPB), DE-1221-
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15-0316-W-1; (2) her complaint before the Equal Employment Opportunity Commission (EEOC),
BLM-14-0120; and (3) “any other formal or informal claim filed, or which could be filed with any
other judicial body or administrative agency.” (Id. ¶ 3, see also id. at 1; Docs. 83-1 (BLM-14-0120
complaint); 83-2 (MSPB appeal); 72 at 11–14 (MSPB jurisdictional statement).) In both
administrative proceedings, Ms. Wu shared information about her supervisor, Ms. Sheila Mallory,
who Ms. Wu alleged retaliated against her by directing another employee to reevaluate some work
Ms. Wu had completed. (See Docs. 72 at 13; 83-1 at 24.) Ms. Wu alleged that Ms. Mallory’s
conduct violated the Trade Secrets Act, 18 U.S.C. § 105 (Doc. 72 at 13), the Federal Final Rule
on Energy and Mineral Resources Cost Recovery, and the Whistle Blower Protection Act (Doc.
83-1 at 24–25.) Ms. Wu asserts that the DOI and its attorney, AUSA Karen Grohman, had notice
of Ms. Mallory’s conduct since at least April 2015. (Doc. 72 at 3.)
Since the dismissal of her 2014 lawsuit, Ms. Wu has filed an additional EEOC complaint
and two more lawsuits. (See Doc. 83-C (EEOC complaint, No. DOI-BLM-15-0909); see also
17cv0113; 18cv0813.) The Court consolidated her three cases. (Doc. 67.) Ms. Wu now asks the
Court to set aside its order dismissing the 2014 lawsuit, the parties’ Agreement, and the Court’s
order granting the motion to enforce the Agreement.
I.
Legal Standards
Plaintiff’s “pro se . . . pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers . . . .” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005) (quotation omitted)). The Court may not, however, “serv[e] as
the litigant’s attorney in constructing arguments and searching the record.” Id. (citation omitted).
“Rule 60(b) of the Federal Rules of Civil Procedure allows a court to relieve a party from
a judgment or order for” a variety of reasons. See Payne v. Tri-State Careflight, LLC, 322 F.R.D.
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647, 668 (D.N.M. 2017)). Relevant here, the Rule may relieve a party from judgment where there
is “mistake, inadvertence, surprise, or excusable neglect;” Fed. R. Civ. P. 60(b)(2), “fraud . . . ,
misrepresentation, or misconduct by an opposing party;” Fed. R. Civ. P. 60(b)(3), or “any other
reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). A party seeking relief under Rule 60(b)(1)
through (3) must bring her motion “no more than a year after the entry of the judgment or order or
the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). “This deadline may not be extended and is
not subject to the court’s discretion.” Payne, 322 F.R.D. at 668 (citing Fed. R. Civ. P. 6(b)(2)).
A motion under Rule 60(b)(6) does not have a strict time limit, but “must be made within
a reasonable time . . . .” Fed. R. Civ. P. 60(c)(1). “[T]o avoid abrogating the one-year time limit
for rule 60(b)(1) to (3), rule 60(b)’s ‘provisions are mutually exclusive, and thus a party who failed
to take timely action due to [one of the enumerated reasons] may not seek relief more than a year
after the judgment by resorting to subsection (6).’” Payne, 322 F.R.D. at 668 (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 393 (1993) (internal quotation marks and
citation omitted)).
III.
Analysis
A.
The Court will not set aside the stipulated dismissal of the 2014 lawsuit.
On August 17, 2015, the Court entered a stipulated order dismissing Ms. Wu’s 2014 lawsuit
with prejudice pursuant to Rule 41(a)(1)(A)(ii). (See Doc. 57 at 1.) See also Fed. R. Civ. P.
41(a)(1)(A)(ii) (allowing the plaintiff to file a voluntary dismissal “by filing . . . a stipulation of
dismissal signed by all parties who have appeared”). The stipulated order “terminate[d] the . . .
[C]ourt’s jurisdiction except for the limited purpose of reopening and setting aside the judgment
of dismissal within the scope allowed by Rule 60(b) . . . .’” Pedroza v. Lomas Auto Mall, Inc., 304
F.R.D. 307, 322 (quoting Hinsdale v. Farmers Nat’l Bank & Trust Co., 823 F.2d 993, 995–96 (6th
4
Cir. 1987) (internal quotation marks and citation omitted)). Ms. Wu moves to set aside the
stipulated order pursuant to Rule 60(b)(6). (See Doc. 58 at 4.) The DOI contends that Ms. Wu’s
motion is neither timely nor supported by extraordinary circumstances. (See Doc. 61.)
1.
Ms. Wu could have brought her claims for fraud under Rule 60(b)(3).
Ms. Wu believes that her supervisor, Ms. Mallory, violated certain federal statutes as
retaliation against Ms. Wu, and that the DOI’s attorney, AUSA Grohman, fraudulently concealed
Ms. Mallory’s conduct during the course of the litigation. (See Doc. 58 at 10–11.) While Ms. Wu
does not raise the prospect of relief under Rule 60(b)(3), the DOI argues that her requested relief
here should have been brought under that subsection. (Doc. 61 at 10–11.) “Rule 60(b)(3) allows a
court to relieve a party from a final judgment based on ‘fraud[,] . . . misrepresentation, or other
misconduct of an adverse party.” Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1290 (10th
Cir. 2005) (quoting Fed. R. Civ. P. 60(b)(3)). To succeed on such a claim, the party “must show
‘clear and convincing proof’ of” the alleged fraud. Id. (quotation marks and citations omitted).
This rule “is aimed at judgments which were unfairly obtained,” and “the challenged behavior
must substantially have interfered with the aggrieved party’s ability fully and fairly to prepare for
and proceed at trial.” Id. (quotations and citation omitted).
Here, Ms. Wu contends that AUSA Grohman fraudulently concealed Ms. Mallory’s
alleged crimes and the fact that Ms. Mallory had been promoted during the pendency of the lawsuit.
(Doc. 64 at 6.) Ms. Wu asserts she would not have signed the Agreement if she had known of the
promotion. (Id.) Yet she does not explain how the alleged crimes or promotion are relevant to the
parties’ Agreement, the stipulated dismissal, or the Court’s analysis under Rule 60(b). More
importantly, she has not demonstrated that any alleged misrepresentation or omission regarding
this information substantially interfered with her ability to litigate her case. Thus, she has failed to
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show fraud that is actionable under Rule 60(b)(3). Even if she could show fraud that substantially
interfered with her ability to litigate, her claim would be time-barred under Rule 60(c)(1).
To the extent that Ms. Wu asserts the DOI perpetrated a fraud on the Court by failing to
share this information, she is required to show that the DOI and/or AUSA Grohman demonstrated
“‘an intent to deceive or defraud the court,’ by means of a ‘deliberately planned and carefully
executed scheme.’” Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999) (quoting Robinson
v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10th Cir. 1995) (internal quotation omitted)). Ms.
Wu has made no allegations sufficient to show either of these elements. Consequently, she is
unable to use “fraud on the Court” as a basis for this Court to set aside its stipulated order of
dismissal. See Fed. R. Civ. P. 60(d)(3).
2.
Ms. Wu has not shown extraordinary circumstances to justify the
requested relief.
The Tenth Circuit has said that “Rule 60(b)(6) relief is even more difficult to attain [than
relief under Rule 60(b)’s more specific provisions] and is appropriate only ‘when it offends justice
to deny such relief.’” Yapp, 186 F.3d at 1231 (quoting Cashner v. Freedom Stores, Inc., 98 F.3d
572, 580 (10th Cir. 1996) (internal quotation marks and citation omitted)). Here, Ms. Wu presents
a variety of justifications for her request for relief.
First, she argues that her traumatic brain injury rendered her unable to deal with complex
legal issues. (Doc. 58 at 5.) The Tenth Circuit has denied relief under Rule 60(b)(6) to a pro se
plaintiff who suffered from mental illness but did not show that he was “confined to a mental
institution or under inpatient care” for an appreciable amount of time. See Cothrum v. Hargett, 178
F. App’x 855, 858 (10th Cir. 2006). The Court is sympathetic to Ms. Wu’s injury, but as the DOI
notes, Ms. Wu has not come forward with any documentation to show that she was actually
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prevented from pursuing her legal rights for the past 33 months due to her injury. (See Doc. 61 at
15.) Further, Ms. Wu was represented by counsel from the time of her injury through the close of
the 2014 lawsuit, including on the date she filed the stipulated motion to dismiss the case. (See
Doc. 56.)
Second, she argues that she was unable to pursue her legal rights because she was
impoverished. (Doc. 58 at 5.) In Ackermann v. United States, 340 U.S. 193 (1950), the Supreme
Court held that the plaintiff was not entitled to relief under Rule 60(b)(6) where he made a
“calculated and . . . free choice” not to file an appeal after being advised that he would need to sell
his home in order to afford the legal costs of an appeal. 340 U.S. at 198. In short, poverty is not an
“extraordinary circumstance” that entitles a plaintiff to Rule 60(b)(6) relief.
Third, Ms. Wu contends that she did not voluntarily sign either the Agreement or the
stipulation to dismiss her lawsuit, because she was “under undue influences, duress[,] and
misrepresentation . . . .” (Doc. 58 at 6.) The parties do not dispute that Ms. Wu could waive her
claims as part of the Agreement, provided the waiver was knowing and voluntary. (See Docs. 58,
61.) See also, e.g., Phillips v. Moore, 164 F. Supp. 2d 1245, 1250 (D. Kan. 2001) (noting that “the
Tenth Circuit has long recognized that an employee may waive potential employment
discrimination claims by agreement so long as the employee’s waiver of such claims is knowing
and voluntary”) (citing Torrez v. Pub. Serv. Co. of N.M., Inc., 908 F.2d 687, 689 (10th Cir. 1990)).
Plaintiff does not assert facts sufficient to show how her consent was rendered involuntary. She
states that AUSA Grohman “compelled” her to accept the Agreement when the DOI filed the
motion to enforce the settlement. (See Doc. 58 at 6.) The filing of a motion in Ms. Wu’s own
lawsuit is not enough to establish duress. Ms. Wu also mentions that she was under duress because
she had to report to work under Ms. Mallory’s supervision on August 3, 2015. (Id.) But Ms. Wu
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originally signed the Agreement before August 3, 2015. Additionally, she had the benefit of both
her attorney and her son’s presence at mediation, she was counseled during the time she had to
think about whether to sign the Agreement, and she talked to her attorney at length before she
attempted to send the revocation letter. Ms. Wu simply has not alleged facts sufficient to show that
she involuntarily signed either the Agreement or the stipulation of dismissal.
Fourth, Ms. Wu claims the DOI failed to send her a neutral letter of recommendation as
promised in the Agreement, and this failure is sufficient to establish extraordinary circumstances.
(Id. at 7–8.) Accepting as true the DOI failed to send the letter of recommendation, the Court finds
that this failure is not extraordinary enough to merit relief under Rule 60(b)(6). The Rule “provides
courts with authority ‘adequate to enable them to vacate judgments whenever such action is
appropriate to accomplish justice . . . .’” Pedroza, 304 F.R.D. at 329 (quoting Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 863 (1988) (quoting Klapprott v. United States, 335 U.S.
601, 614–15 (1949) (subsequent citation omitted))). Plaintiff does not explain why she did not
simply ask the DOI to provide the letter earlier, nor why the DOI’s provision of the letter in
response to her motion (see Doc. 61-3) is insufficient to accomplish justice.
Fifth, Ms. Wu alleges that her attorney was grossly negligent in refusing to share
allegations that Ms. Mallory committed crimes, in delivering the 2015 revocation letter late, and
in refusing to file another EEOC complaint. (See Doc. 58 at 8–9.) Ms. Wu first alleges that she
told Ms. Ferlic about Ms. Mallory’s crimes, and Ms. Ferlic decided not to address them during the
lawsuit based on her judgment that Ms. Wu might have been sued if she made the allegations. Ms.
Ferlic made “[a] deliberate decision based upon [her] understanding of the law . . . .” See Thompson
v. THI of N.M. at Casa Arena, No. CIV 05-1331 JB/LCS, 2008 WL 5999653, at *18 (D.N.M. Dec.
24, 2008) (citing Yapp, 186 F.3d at 1231). Ms. Wu abided by that decision during the course of
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the lawsuit. The Tenth Circuit has held that such a decision “is not a basis for relief under rule
60(b)(1).” See id. (citing Yapp, 186 F.3d at 1231). Nor is this decision an extraordinary
circumstance that justifies relief under Rule 60(b)(6). As the Court noted earlier, Ms. Wu fails to
show that this issue has any bearing on the parties’ Agreement or the stipulated dismissal.
Ms. Wu next complains that Ms. Ferlic sent the revocation letter too late. However, Ms.
Wu apparently consented to spend much of the day discussing her revocation with Ms. Ferlic, and
both knew of the firm delivery deadline. That they did not end the conversation earlier so the
revocation letter could be delivered within the agreed-upon time period does not provide a basis
for relief now. “[A] party who simply misunderstands or fails to predict the legal consequences of
his deliberate acts cannot later, once the lesson is learned, turn back the clock to undo those
mistakes.” Yapp, 186 F.3d at 1231 (citations omitted). The late delivery of the letter is not a
“litigation mistake[] that [she] could not have protected against, such as counsel acting without
authority.” Id. (citation omitted); see also Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1145
(10th Cir. 1990) (Rule 60(b) does not provide a remedy “for an attorney’s carelessness”) (quotation
marks and citation omitted). This mistake is not sufficient to warrant relief under Rule 60(b)(6).
Ms. Wu also argues that Ms. Ferlic was grossly negligent for refusing to file another EEOC
complaint after the 2014 lawsuit ended. This decision has no bearing on the 2014 lawsuit, the
parties’ Agreement, or the stipulated order of dismissal. Further, Ms. Ferlic’s refusal to file the
complaint is not the type of event that would “render enforcement of the judgment inequitable.”
Cashner, 98 F.3d at 579 (citations omitted). Consequently, Ms. Wu is not entitled to relief on the
issue of attorney negligence.
Finally, Ms. Wu complains that in requiring her to return to work on August 3, 2015, Ms.
Mallory violated an EEOC regulation. (17cv0113, Doc. 55 at 7–8.) She does not, however, explain
9
why an alleged EEOC violation provides extraordinary circumstances to vacate the stipulated
order of dismissal, which both parties agreed to after August 3, 2015. (See Doc. 56.)
In sum, Ms. Wu has not shown extraordinary circumstances sufficient to justify relief under
Rule 60(b). The Court will deny her motions to set aside the stipulated order of dismissal with
prejudice. (Doc. 58; 17cv0113, Doc. 42.)
B.
The Court lacks jurisdiction to set aside the Agreement or the order enforcing
the Agreement.
Ms. Wu asks the Court to set aside the parties’ Agreement and the Court’s order granting
the DOI’s motion to enforce the Agreement. (Doc. 65; 17cv0113, Doc. 56.) She believes that
because the DOI “breached” the Agreement by failing to send a letter of recommendation, the
Court has jurisdiction to hear her motion under Kokkonen v. Guardian Life Insurance Co. of
America, 511 U.S. 375 (1994). (See Doc. 65 at 7–8.) In that case, however, the Supreme Court
found that if parties to a settlement agreement “wish to provide for the court’s enforcement of a
dismissal-producing settlement agreement, they can seek to do so” by incorporating such a term
into the dismissal order. See 511 U.S. at 381; see also Pedroza, 304 F.R.D. at 315. Thus, if the
stipulated order had contained such a term, then the Court would have “ancillary jurisdiction to
enforce the agreement . . . .” See Kokkonen, 511 U.S. at 381; see also Pedroza, 304 F.R.D. at 315.
The stipulated order of dismissal in Ms. Wu’s case was unconditional—the Court did not
retain authority over the Agreement. (See Doc. 57.) Accordingly, the Court does not have
automatic jurisdiction over the Agreement now, except as provided under Rule 60(b). See Macias
v. N.M. Dep’t of Labor, 300 F.R.D. 529, 551 (D.N.M. 2014) (noting that “an unconditional
dismissal terminates federal jurisdiction except for the limited purpose of reopening and setting
aside the judgment of dismissal within the scope allowed by [Fed. R. Civ. P.] 60(b)”) (quoting
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Smith v. Phillips, 881 F.2d 1178, 1190 (10 Cir. 1989) (internal citations omitted)); accord
SmallBizPros, Inc. v. MacDonald, 618 F.3d 458, 464 (5th Cir. 2010) (finding that district court
had not retained ancillary jurisdiction to enforce a settlement agreement and remanding “with
instructions to dismiss for lack of jurisdiction”). The Court has denied Ms. Wu’s motion to set
aside the order of dismissal under Rule 60(b), thus it does not have jurisdiction to consider her
motion to set aside the Agreement or the order granting the motion to enforce the Agreement.
Even if the Court had jurisdiction to consider Ms. Wu’s motion, it would find that she has
failed to show good cause to set aside either the Agreement or the order granting the motion to
enforce the agreement. With respect to the Court’s order granting the DOI’s motion to enforce
(Doc. 55), the Court notes that Ms. Wu filed a notice of consent on August 5, 2015, withdrawing
her opposition to the DOI’s motion to enforce. (Doc. 54.) In that filing, she also gave notice of her
intent “to abide by the Parties’ settlement agreement . . . .” (Id. at 1.) Ms. Wu has made no attempt
to establish that this filing was not knowing or voluntary, or that other extraordinary circumstances
justify her requested relief. (See Docs. 65; 72; 17cv0113, Doc. 56.)
With respect to the parties’ Agreement, Ms. Wu first claims that the Agreement was
“tainted with invalidity” due to conduct by AUSA Grohman. (Doc. 65 at 4–5.) Specifically, she
contends that AUSA Grohman invalidated the Agreement by concealing Ms. Mallory’s alleged
crimes and by fraudulently attesting in the Agreement that the DOI and “its officers deny that they
individually or collectively . . . violated any Federal or State laws, rules, regulations, or policies
. . . .” (Id. at 4 (quoting Doc. 53-1 ¶ 13).) The DOI points out that the paragraph Ms. Wu “quotes
is [a] general denial of liability that is found in the vast majority of all settlement agreements.”
(Doc. 66 at 7 n.3.) Moreover, the DOI argues, Ms. Wu “fails to explain why Ms. Mallory’s
purported criminal violations are relevant to” the parties’ Agreement. (Id. at 7.) The Court agrees.
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While it is true that Ms. Wu referenced Ms. Mallory’s alleged wrongdoings in the administrative
proceedings that were the basis of her lawsuit (see Docs. 83-1 at 24–26, 42–47, 53; 83-2 at 13–
14), Ms. Wu does not have a private right of action against Ms. Mallory under either 18 U.S.C. §
1905 or 18 U.S.C. § 371. See Bruce v. United States, 621 F.2d 914, 918 (8th Cir. 1980) (noting
that “[t]he Trade Secrets Act, 18 U.S.C. § 1905, does not imply a private right of action”) (citation
omitted); Fairfax v. Comm’r of Soc. Sec., 443 F. App’x 730, 730 (finding that plaintiff did “not
have a private right of action . . . under 18 U.S.C. § 371 for [an] alleged conspiracy to reevaluate
his disability”). 2 Ms. Wu has failed to demonstrate that Ms. Mallory’s alleged crimes provide a
basis to invalidate the parties’ Agreement.
Second, Ms. Wu contends that she was coerced into signing the Agreement and signed it
under duress. (Doc. 65 at 5–7.) Ms. Wu fails to demonstrate facts to support this argument. As the
Court noted in Section III(A) above, Ms. Wu had the benefit of counsel throughout mediation and
through the conclusion of the lawsuit; her son accompanied her to the mediation; she had a lengthy
time period to consider the Agreement before signing it; and she talked to her attorney at length
before she attempted to send the revocation letter. The DOI also notes that “[b]y signing the
Settlement Agreement, Plaintiff represented” that she had “read [the] entire document, . . .
knowingly, voluntarily, and in good faith entered into [the] Settlement Agreement,” was “not
induced by or through fraud, misrepresentation, duress, threat, or coercion,” and “fully
[understood] all terms and conditions described in” the Agreement. (Doc. 66 at 3 (quoting Doc.
53-1 ¶ 2).) Ms. Wu signed the Agreement and attempted to revoke it before she sustained the
2
Ms. Wu claims in her Fourth Amended Complaint that AUSA Grohman obstructed proceedings relevant
to the first lawsuit in violation of 18 U.S.C. § 1505. (See 4th Am. Compl. ¶¶ 63, 66.) Again, this statute
does not create a private right of action, see de Pacheco v. Martinez, 515 F. Supp. 2d 773, 787 (S.D. Tex.
2007), and it is not an appropriate basis to find that the parties’ Agreement was “tainted with invalidity.”
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traumatic brain injury, and she continued to have the benefit of counsel after her injury, when she
withdrew her objection to the Agreement and signed the stipulated motion to dismiss the lawsuit.
Consequently, Ms. Wu has failed to show that she involuntarily accepted the terms of the
Agreement.
While the Court finds that it lacks jurisdiction to give Ms. Wu the relief she requests in this
motion, it would also deny her motion on the merits for the reasons discussed in this Section and
in Section III(A) of this Opinion.
THEREFORE,
IT IS ORDERED that Plaintiff’s Motions to Set Aside Stipulated Order of Dismissal with
Prejudice (Doc. 58; 17cv0113, Doc. 42) are DENIED;
IT IS FURTHER ORDERED that Plaintiff’s Motions to Set Aside Settlement Agreement
and Order of (sic) Granting Defendant’s Motion to Enforce Settlement Agreement, (Doc. 65;
17cv0113, Doc. 56) are DISMISSED FOR LACK OF JURISDICTION.
________________________________
ROBERT C. BRACK
SENIOR U.S. DISTRICT JUDGE
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