Smith et al v. Auto-Owners Insurance Company

Filing 192

ORDER by Magistrate Judge Stephan M. Vidmar DENYING 176 Plaintiff's Motion to Enter a Judgment; GRANTING IN PART 180 Defendant's Motion to Enforce the Settlement Agreement; and DENYING 190 Plaintiff's Motion to Strike (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MELVIN SMITH and STAN FOWLER,
Plaintiffs,1
v.

No. 15-cv-1153 SMV/GBW

AUTO-OWNERS INSURANCE COMPANY,
Defendant.
ORDER
THIS MATTER is before the Court on the competing motions regarding the settlement
agreement reached between the parties in February of 2018. [Docs. 176, 180]. The motions are
fully briefed, [Docs. 179, 181, 182, 183, 189, 190]. The Court heard oral argument on May 23,
2018.

The Court will deny Plaintiff’s motion [Doc. 176] and grant Defendant’s motion

[Doc. 180] to the extent consistent with the specific rulings herein. The Court will also deny
Plaintiff’s Emergency Motion to Strike Exhibits to Defendant’s Supplemental Authority
[Doc. 190].
Findings
The Court finds that there is an enforceable settlement agreement that includes the
execution of a motion and order of dismissal with prejudice, as well as the execution of a
“settlement agreement and release.”2

1

Judgment was entered in favor of Plaintiff Stan Fowler on November 2, 2016, after he accepted Defendant’s offer
of judgment. [Doc. 84]. Melvin Smith is the sole remaining Plaintiff in this case.
2

The Court so finds without reliance on Defendant’s supplemental authority [Doc. 188].

The Court further finds that there was no agreement on an indemnification provision in
the “settlement agreement and release.” The Court finds that an indemnification provision is not
material to the enforceable agreement to settle.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:


Defendant must issue a check for $75,000, payable to “Melvin Smith and Sherman &
Sherman” and submit it to chambers. The check must be received by chambers no later
than June 8, 2018.



Plaintiff Melvin Smith must sign the release at [Doc. 182-1] at 1 and provide it to
chambers. Plaintiff’s counsel, Mr. Sherman, must complete a W-9 for his law firm and
provide it to chambers. Mr. Sherman must sign the Stipulated Order of Dismissal with
Prejudice found at [Doc. 183-1] at 9 and provide it to chambers. The release signed by
Plaintiff Melvin Smith, the completed W-9, and the signed Stipulated Order of
Dismissal with Prejudice must all be received by chambers no later than June 8,
2018.



If by June 8, 2018, chambers has not received all of the following: the $75,000 check, the
release signed by Plaintiff Melvin Smith, the completed W-9, and the signed Stipulated
Order of Dismissal with Prejudice, an in-person show cause hearing will be held on
June 22, 2018, at 9:00 a.m., in Las Cruces, New Mexico. If Plaintiff Melvin Smith has
failed to comply with this order, he will be required to appear in person in Las Cruces to
show good cause why he should not be held in contempt and subject to sanctions up to
and including monetary sanctions and dismissal of all claims with prejudice.
IT IS FURTHER ORDERED that:



Plaintiff’s request for judgment to be entered in his favor is denied. See [Doc. 176] at 1,
2, 3.
2



All of Plaintiff’s requests related to former co-Plaintiff Fowler are denied.

See

[Doc. 176] at 1.


Plaintiff’s motions to strike are denied. See [Doc. 181] at 6; [Doc. 190].



Defendant’s request that the Court order Plaintiff to sign a release is granted to the extent
consistent with the Court’s specific instructions herein. See [Doc. 183] at 5.



Defendant’s request that the Court order Plaintiff’s counsel to provide a W-9 for his law
firm is granted to the extent consistent with the Court’s specific instructions.

See

[Doc. 180] at 5; [Doc. 183] at 7.


No fees or costs will be awarded.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s

Motion to Enter a Judg[]ment in Favor of the Plaintiff due to the Settlement of the Case and
Alternatives [Doc. 176] is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Enforce the Settlement
Agreement [Doc. 180] is GRANTED to the extent provided herein.
IT IS FURTHER ORDERED that Plaintiff’s Emergency Motion to Strike Exhibits to
Defendant’s Supplemental Authority [Doc. 190] is DENIED.
IT IS SO ORDERED.

_____________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

3