Ojo v. United States of America et al

Filing 130

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 117 Motion for Order to Show Cause, filed by Olukayode David Ojo. For the reasons set forth in this opinion, Mr. Ojo's motion is denied. Ordered by Judge Allyne R. Ross on 12/18/2023. (GJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
OLUKAYODE DAVID OJO,
15-CV-6089 (ARR) (LB)
Plaintiff,
NOT FOR ELECTRONIC
OR PRINT PUBLICATION

-againstUNITED STATES OF AMERICA, WARDEN
FRANK STRADA, and ASST. WARDEN
WHITE,

OPINION & ORDER

Defendants.

ROSS, United States District Judge:
Plaintiff Olukayode David Ojo, proceeding pro se, seeks an order “reopening” this case
and “enforcing the settlement agreement” between himself and the United States. ECF No. 117. I
have received a Report and Recommendation (“R. & R.”) on the motion from the Honorable Lois
Bloom. See R. & R., ECF No. 124. Judge Bloom recommends that Mr. Ojo’s motion—construed
as a motion to vacate the judgment dismissing the case—be denied. Id. at 1–2, 6. Mr. Ojo objects
that the R. & R. does not address his request to enforce the settlement agreement. See Pl.’s Mot.
for Recons. 2 (“Objection Mot.”), ECF No. 125.
I consider de novo Mr. Ojo’s request for settlement enforcement and conclude that I do not
have jurisdiction to enforce the settlement agreement. I also find no clear error in Judge Bloom’s
determination that vacatur of judgment is inappropriate. Accordingly, Mr. Ojo’s motion is denied.
BACKGROUND
I assume familiarity with the underlying facts as detailed in Judge Bloom’s R. & R. and
provide only a summary of the relevant facts here.

In 2013, a jury found Mr. Ojo guilty of wire fraud and conspiracy to commit fraud in
connection with identification documents. See United States v. Ojo, No. 13-CR-334 (ARR)
(E.D.N.Y.), Jury Verdict, ECF No. 50. I sentenced Mr. Ojo to thirty-seven months’ imprisonment
and ordered him to pay restitution to his victims in the total amount of $92,152. See id., Criminal
Judgment 3, 6, ECF No. 75.
Mr. Ojo brought the instant action in 2015, alleging that while serving his sentence at the
Metropolitan Detention Center (“MDC”) in Brooklyn, he received inadequate dental care that
resulted in “serious and permanent personal injuries.” Compl. ¶¶ 1–2, 72, ECF No. 1. I dismissed
all of Mr. Ojo’s claims except his negligence claim against the United States under the Federal
Tort Claims Act (“FTCA”). See Op. & Order 22, ECF No. 77; Op & Order 23, ECF No. 93. The
parties eventually settled the case for $70,000. See Tr. of Telephonic Conference (“Tr.”) 3:14-25,
ECF No. 115. In a conference before Judge Bloom, Mr. Ojo stated that he understood this
settlement award would be offset against the outstanding restitution judgment in his criminal case.
See id. at 7:9–8:17. I dismissed the action with prejudice on September 6, 2019, pursuant to the
parties’ stipulation of dismissal. See Order of Dismissal 2, ECF No. 112.
On October 8, 2020, Mr. Ojo filed suit against the United States, the Department of Justice,
and two individual defendants alleging, inter alia, that his settlement award was wrongfully
applied to his criminal restitution judgment. Ojo v. United States et al., 20-CV-4882 (MKB)
(E.D.N.Y.), Compl. ¶¶ 34, 41–48, ECF No. 1. Judge Brodie dismissed these claims for lack of
subject matter jurisdiction. See id., Mem. & Order 7–8, 10–12, ECF No. 8; id., Mem. & Order 13,
ECF No. 30.
Following dismissal of the claims in the case before Judge Brodie, Mr. Ojo filed a motion
in this case requesting that I issue an Order to Show Cause why the case “should not be reopened

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and the settlement agreement stipulated between him and the United States of America be
enforced.” Pl.’s Mem. L in Supp. 1, ECF No. 117-1. Mr. Ojo principally asserts that the
government has violated the settlement agreement by offsetting his award against his restitution
judgment. Id. at 2. I referred the motion to Judge Bloom, see Docket Order dated July 28, 2023,
who recommends that Mr. Ojo’s motion be denied, see R. & R. 6. Mr. Ojo timely filed objections
to the R. & R. See Objection Mot.; Docket Order dated Oct. 18, 2023 (construing Mr. Ojo’s motion
as objections).
LEGAL STANDARD
A district court may “accept, reject, or modify, in whole or in part, the findings or
recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). If a party timely objects to
proposed findings or recommendations, the district court “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which objection
is made.” Id; see Fed. R. Civ. P. 72(b). Where no timely objections are filed, the court “need only
satisfy itself that there is no clear error on the face of the record.” Chao v. Int’l Bhd. of Indus.
Workers Health & Welfare Fund, 97 F. Supp. 3d 268, 277 (E.D.N.Y. 2015) (quoting Urena v. New
York, 160 F. Supp. 2d 606, 609–10 (S.D.N.Y. 2001)). Where an R. & R. does not address a certain
issue, the district judge’s review is likewise de novo. See Charles v. Cnty. of Nassau, 116 F. Supp.
3d 107, 121 (E.D.N.Y. 2015). Because Mr. Ojo is proceeding pro se, his filings shall be liberally
construed. See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017).
DISCUSSION
Judge Bloom construes Mr. Ojo’s motion for an order to show cause as a motion to vacate
final judgment pursuant to Federal Rule of Civil Procedure 60(b). R. & R. 1–2. Mr. Ojo objects to
this interpretation of his motion, arguing that he does not wish to vacate the dismissal but rather

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seeks “to enforce the settlement agreement” between himself and the government. Mem. L. in
Supp. Pl.’s Objection 3, ECF No. 129; see also Objection Mot. 2. Because the R. & R. does not
address settlement enforcement, see R. & R. 6 n.2, I will consider this issue de novo. See Charles,
116 F. Supp. 3d at 121. I then review for clear error Judge Bloom’s determination that Mr. Ojo’s
request to reopen the case, construed in the alternative as a motion to vacate, should be denied.
I.

Motion to Enforce the Settlement.
“A federal court does not automatically retain jurisdiction to hear a motion to enforce or

otherwise apply a settlement in a case that it has previously dismissed.” In re Am. Exp. Fin.
Advisors Sec. Litig., 672 F.3d 113, 134 (2d Cir. 2011). To retain ancillary jurisdiction to enforce a
settlement agreement, “a district court’s order of dismissal must either (1) expressly retain
jurisdiction over the settlement agreement, or (2) incorporate the terms of the settlement agreement
in the order.” Hendrickson v. United States, 791 F.3d 354, 358 (2d Cir. 2015). My order dismissing
this case did not expressly retain jurisdiction over the settlement agreement, nor did it incorporate
the terms of the settlement agreement. See Order of Dismissal 1–2. Although the order referenced
the existence of the settlement, id. at 1, and although Judge Bloom discussed the agreement with
the parties in a conference, see Tr. 2:17–10:10, a judge’s “mere awareness and approval of the
terms of the settlement agreement” is not enough to create ancillary jurisdiction. Hendrickson, 791
F.3d at 359 (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994)).
When a district court lacks ancillary jurisdiction to enforce a settlement agreement,
enforcement is left “for state courts, unless there is some independent basis for federal
jurisdiction.” Id. at 362 (quoting Kokkonen, 511 U.S. at 382). Here, Mr. Ojo seeks to enforce a
settlement agreement with the federal government reached in connection with his FTCA claim.
The Second Circuit has construed motions like Mr. Ojo’s as contract claims against the United

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States. See Hendrickson, 791 F.3d at 356–57, 362. Where the contract claim is for an amount
exceeding $10,000 (here, the $70,000 settlement award), jurisdiction lies with the Court of Federal
Claims rather than the district court. Id. at 362–63 (citing 28 U.S.C. §§ 1346(a); 1491(a)(1)). And
although I may transfer this action to the Court of Federal Claims, see 28 U.S.C. § 1631, I decline
to do so here. Mr. Ojo was aware that his settlement award would be offset against his restitution
judgment when he voluntarily entered into the agreement with the government, see Tr. at 6:11-20,
7:09–8:17. See Young v. United States, 88 Fed. Cl. 283, 292 (2009) (“If a claim is determined to
be frivolous, it is not in the interest of justice to transfer the case to another court”). Mr. Ojo’s
motion, construed as a motion to enforce the settlement agreement, is therefore denied.
II.

Motion to Vacate.
Though Mr. Ojo objects to Judge Bloom’s interpretation of his motion, he does not appear

to object to the substance of her determination that vacatur under Rule 60(b) is not warranted. As
such, I review Judge Bloom’s reasoning for clear error. Finding none, I adopt this portion of the
R. & R. as the opinion of the Court. Mr. Ojo’s request to “reopen” this case, construed in the
alternative as a motion to vacate, is denied.

CONCLUSION
For the reasons above, Mr. Ojo’s motion is denied.

SO ORDERED.

/s/
Allyne R. Ross
United States District Judge
Dated:

December 18, 2023
Brooklyn, New York

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