Tangtiwatanapaibul et al v. Tom & Toon Inc et al

Filing 234

OPINION AND ORDER PURSUANT TO RULE 60 re: 231 MOTION for Settlement (Enforce Settlement)filed by Toon Thai Inc, Thai Toon At Grand Central, Inc., Tom & Toon Inc, Roongkant Preechatammarach, Wai Ying Lau, Thai Sliders & Co. LLC , Silom Thai Inc, Toon Lau, 224 MOTION in Limine to allow Plaintiffs PHOUVIENGSONE SYSOUVONG, a/k/a Tukta Phouviengsone and PHOUVIENGKHONE THAMMAVONG to testify from a different location or in the Alternative enter the Deposition Transcr ipts of Plaintiffs into Evidence in Lieu filed by Phouviengkhone Thammavong, Srisuwan Tangtiwatanapaibul, Phouviengsone Sysouvong, Manoon Charussilapa. Having considered Plaintiffs' motion at (ECF No. 206), this Court hereby clarifie s, pursuant to Rule 60(a), that the settlement agreement it approved when dismissing the action at ECF No. 203 was the one reflected in the parties' binding Term Sheet attached hereto. To the extent this Court reopened this case "for a ll purposes" at ECF No. 222, that order is hereby VACATED as having been in error. The Motion in Limine filed at ECF No. 224 was filed in contravention of this Courts Individual Practices, and this Court is without jurisdiction to decide it. Accordingly, it is TERMINATED. The motion at ECF No. 231 for enforcement of the settlement agreement is TERMINATED because this Court is without jurisdiction to enforce the settlement for the reasons set forth above. The Clerk of Court is respectfully requested to close this case for all purposes, it having been previously dismissed with prejudice. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 8/24/2021) (vfr)

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 1 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------X
SRISUWAN TANGTIWATANAPAIBUL ON BEHALF OF
THEMSELVES AND OTHERS SIMILARLY SITUATED
a/k/a ANNE TANGTIWATANAPAIBUL, et al.,
Plaintiffs,
-againstTOM & TOON INC d/b/a BROADWAY THAI, et al.,

8/24/2021

OPINION AND ORDER PURSUANT
TO RULE 60
1:17-cv-00816 (KHP)

Defendants.
-----------------------------------------------------------------X
KATHARINE H. PARKER, United States Magistrate Judge:
On February 2, 2017, Plaintiffs, who all worked at the Defendant restaurants,
commenced this action against the restaurants and their owners asserting claims under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq, and the New York Labor Law §§ 1901999a, 650-665 (“NYLL”), for failure to pay appropriate wages and provide required wage
notices.
On June 26, 2019, the parties settled this action at a settlement conference before this
Court by signing a Term Sheet that contained the material terms of the agreement and
explicitly set forth that those terms were binding as of that date. The parties contemplated
preparing a more formalized settlement agreement. Although the Plaintiffs’ counsel prepared
a formal agreement, that agreement was never fully executed by all parties. Nor did the parties
ever fully execute any other formal agreement. This Court attempted to assist the parties, but
ultimately Plaintiffs’ counsel indicated their desire to bring an enforcement action. This Court
therefore approved the settlement reached at the June 26, 2019 conference, based on the
terms set forth in the binding Term Sheet, pursuant to Cheeks v. Freeport Pancake House, Inc.,

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 2 of 18

796 F.3d 199 (2d Cir. 2015), cert. denied, 136 S. Ct. 824 (2016), and dismissed the action. This
Court issued that order on October 13, 2020 and dismissed the action, declining to retain
jurisdiction. (ECF No. 205.)
On October 27, 2020, Plaintiffs filed a request for clarification of the Court’s dismissal
order and objected to dismissal of the case. (ECF No. 206.) On November 12, 2020, Plaintiffs
filed an appeal of this Court’s dismissal of the case. (ECF No. 207.) The Second Circuit then
stayed the appeal to allow this Court to act on the Plaintiffs’ motion at ECF No. 206. This
Opinion resolves Plaintiff’s motion at ECF No. 206 and clarifies its Order of Dismissal at ECF No.
205, pursuant to Federal Rule of Civil Procedure 60(a).
BACKGROUND
The parties, along with their respective attorneys, attended an in-person settlement
conference before the undersigned on June 26, 2019. 1 (ECF No. 171.) At the conclusion of the
conference, the parties entered into a settlement agreement memorialized by a Settlement
Agreement Term Sheet (“Term Sheet”), attached hereto, signed by counsel as well as the
attending parties. The Term Sheet was drafted by the Court when the parties reached
agreement, and the undersigned witnessed the signing of the Term Sheet and retained a copy
of the fully executed Term Sheet. The Term Sheet, in pertinent part, provided for a settlement
in the total amount of $72,000, inclusive of attorneys’ fees and costs, to be paid over 24
months, in monthly installments of $3,000 per month, commencing within 10 days after court
approval of the settlement. It also provided for a 10-day notice and cure period in the event of
Two of the Plaintiffs were removed from the United States and now reside in Laos. Their presence was excused
from the settlement conference and Plaintiffs’ counsel came with authority to act on their behalf. Defendant Toon
Lau attended on behalf of himself and the corporate Defendants, and Defense counsel had authority to act on
Defendant Wai Ying Lau’s behalf.

1

2

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 3 of 18

a default on any installment, as well as an acceleration of the remainder of the settlement plus
a penalty of twice the remaining amount due in the event the default was not cured. It
provided that Defendants were not admitting liability and that Plaintiffs where providing a
release of the claims raised in the litigation. Additionally, it provided that Plaintiffs’ counsel
would receive one-third of the settlement amount of their attorneys’ fees plus costs. The
parties contemplated preparing a more formal written agreement and that Defendants would
provide confessions of judgment that could be filed in state court should they default and not
timely cure the default. However, the parties expressly indicated that the material terms of the
settlement as reflected in the Term Sheet were binding as of June 26, 2019. Finally, the parties
consented to this Court’s jurisdiction for approval of the settlement. That same day, the parties
signed a Notice, Consent, and Reference of a Civil Action to A Magistrate Judge (“Consent
Stipulation”) form consenting to my jurisdiction pursuant to 28 U.S.C. § 636(c) for purposes of
approving the settlement and dismissing the case. There was no requirement of a stipulation of
dismissal in the Term Sheet. Nor did the Term Sheet explicitly require the more formal
settlement document to be filed with the Court prior to the Court’s review and approval of the
settlement reflected in the binding Term Sheet. (ECF No. 172.) The Consent Stipulation was
entered by the Honorable Lorna G. Schofield on June 28, 2019, transferring the case to the
undersigned for all purposes.
There was considerable delay in the preparation and signing of a more formal
settlement agreement, and this Court attempted several times to speed that process along.
(See ECF Nos. 175-179.) On January 9, 2020, the Court held an in-person conference to inquire
from the parties about their reasons for not presenting the Court with the final settlement
3

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 4 of 18

papers. (ECF No. 181.) Plaintiffs’ counsel presented a 40-page document to the Court as its
formal agreement. Defense counsel had some concerns with the draft. The conference ended
without a meeting of the minds on a final agreement. The individual Plaintiffs who were
present at the conference signed the document on January 9, 2020 and the Plaintiffs who were
in Laos apparently signed on January 13, 2020, although their signatures were not
acknowledged before a counselor official of the United States as contemplated in the
document. (ECF No. 206-2.)
The January 9, 2020 written agreement contained the same material terms as the Term
Sheet but provided additional provisions and details, including the allocation of the settlement
proceeds among the four Plaintiffs, that the confessions of judgment would be signed
concurrently with the signing of the agreement, additional provisions in the event one of the
settlement checks did not clear, a provision that Defendants would be responsible for Plaintiffs’
attorneys’ fees and costs incurred during judgment lien enforcement proceedings, an
agreement by Plaintiffs to dismiss and withdraw the action by executing a Stipulation of
Voluntary Discontinuance with Prejudice, and that signatures of the parties had to be notarized
or, for parties living abroad, signed before and acknowledged by a counselor official of the
United States. The written agreement also provided that it could not be modified except by a
writing signed by all parties. Insofar as the parties had reached a binding agreement as to the
material terms reflected in the Term Sheet, the agreement did not contain a date specifying its
“effective date” or condition its becoming effective on the provision of confessions of judgment
by Defendants. Like the Term Sheet, however, it provided that settlement installment

4

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 5 of 18

payments would commence within 10 days after court approval of the settlement. (ECF No.
206-2)
The January 9, 2020 agreement was never fully executed by the parties. Instead,
Defendants, who were no longer operating any restaurant, complained that due to financial
hardship they could no longer make the payments to which they agreed at the settlement
conference and as set forth in the Term Sheet. Defendants explained that they started plans
for a new Thai restaurant with the hopes that income derived from the new restaurant could
fund the settlement, but COVID-19 restrictions dramatically impacted the new business
venture, making payment of the settlement installments required by the settlement impossible.
(ECF No. 189.) The undersigned encouraged the parties to modify the payment schedule in
light of COVID-19 and its impact on Defendants’ ability to pay. At a June 24, 2020 telephonic
conference, Plaintiffs’ counsel agreed to accept payment of $500 a month toward the
settlement amount for a period of four months, after which he would evaluate whether he
would agree on behalf of his clients to modify the payment structure to which the parties
originally agreed, as reflected in the Term Sheet. Based on this interim agreement, on June 30,
2020, Defendant Toon Lau and the other Defendants signed a modified version of the January
9, 2020 agreement reflecting the temporary modified payment schedule and some additional
language. (ECF 194-1.) At that time, the Defendants did not execute and provide Plaintiffs’
counsel with confessions of judgment. Plaintiffs never countersigned the Defendants’ version
of the “formal” agreement. This Court did not approve or order the specific language added to
the modified version of the agreement by Defense counsel.

5

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 6 of 18

Thereafter, Defendants made payments towards the settlement and filed status reports
confirming that they had made the monthly payments. (See ECF Nos. 194, 195, 196.) Plaintiffs
accepted those payments.
On October 8, 2020, the Court held a conference inquiring about the Defendants’
financial situation, indicating that the case needed to be closed because the parties had a
settlement agreement, Plaintiffs rightly wanted their settlement money, and any enforcement
action needed to be brought in state court. (ECF No. 202.) Plaintiffs’ counsel acknowledged
that they could and would bring an enforcement action in state court upon approval of the
settlement agreement pursuant to Cheeks and dismissal of the action. (Id.) Plaintiffs’ counsel
also submitted a letter asking the Court to find the settlement fair and reasonable pursuant to
Cheeks prior to dismissing the action. 2 (ECF No. 204.)
In accordance with Plaintiffs’ counsel’s stated desire to obtain the settlement proceeds
and enforce the settlement, and insofar as the parties had a binding agreement, on October 13,
2020 I approved the settlement reflected in the Term Sheet pursuant to Cheeks, finding the
settlement and release of claims under the FLSA to be fair and reasonable, and dismissed the
action without retaining jurisdiction to enforce the settlement. (ECF No. 205.)
On October 27, 2020, Plaintiffs’ counsel filed a letter motion asking the Court to clarify
whether the settlement the Court approved was the January 9, 2020 agreement they had
prepared but that was never signed by all the Defendants or, alternatively, the agreement as
modified by Defense counsel and signed by Defendants on June 30, 2020. (ECF No. 206.)
Plaintiffs’ counsel referenced a settlement agreement that had been reached by the parties reflecting
modifications to the payment schedule as the latest “executed” agreement, but did not in fact present that
agreement to the Court. In fact, the only fully executed agreement ever presented to the Court was the Term
Sheet.

2

6

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 7 of 18

Plaintiffs suggested that it was the January 9, 2020 version that was approved as fair and
reasonable. Additionally, Plaintiffs argued that the Court could not dismiss the case because
the confessions of judgment had not been signed by Defendants as contemplated in the
January 9, 2020 agreement.
On November 12, 2020, Plaintiffs appealed this Court’s Order of Dismissal. (ECF No.
207.)
On November 13, 2020, this Court granted Plaintiffs’ motion to reopen for purposes of
clarifying the settlement reached and approved by the Court. (ECF No. 208.) Rather than
simply issue a clarifying order, this Court unsuccessfully attempted to resolve the outstanding
issue pertaining to the provision of confessions of judgment. The parties disputed the form of
the confessions of judgment, and Defendants have never provided signed confessions of
judgment.
As the case stands now, Defendants contend there is an enforceable settlement
agreement and posits that the version with the modified payment schedule signed by the
Defendants on June 30, 2020, but not countersigned by Plaintiffs, is the operative agreement.
(ECF No. 231.) Plaintiffs contend, notwithstanding their prior insistence that the parties had an
enforceable settlement agreement, that there is no settlement and that this Court
impermissibly evaluated an incomplete agreement because no confessions of judgment were
signed and presented to the Court and no stipulation of dismissal was executed and presented
to the Court. (ECF No. 232.) In the alternative, Plaintiffs argue that the version of the
agreement signed by Defendants on June 30, 2020 is not enforceable, but rather, that the
January 9, 2020 version prepared by them is the enforceable agreement. (Id.) Finally, Plaintiffs
7

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 8 of 18

argue that this Court has no jurisdiction to enforce the settlement agreement because it
dismissed the case. (Id.)
APPLICABLE LEGAL RULES AND ANALYSIS
1. Dismissal of FLSA Actions
An action may be dismissed with prejudice upon the filing of a stipulation of dismissal by
the parties pursuant to Federal Rule of Civil Procedure 41(a)(1). Otherwise, pursuant to Federal
Rule of Civil Procedure 41(a)(2) “an action may be dismissed at the plaintiff’s request only by
court order, on terms that the court considers proper.” Separately, courts routinely dismiss
actions with prejudice upon report of a settlement by the parties. These dismissals are also
with prejudice. See Fed. R. Civ. P. 41(b); Britto v. Salius, 360 Fed. Appx. 196 (2d Cir. 2010) (after
district court dismissed case upon report of settlement, appellate court rejected plaintiff’s
request for relief from dismissal of action pursuant to Rule 60(b); district court’s determination
that there was a conclusive and binding settlement not clearly erroneous). Cf. Link v. Wabash
R. Co., 370 U.S. 626 (1962) (recognizing in dicta that courts have inherent power to “manage
their own affairs so as to achieve the orderly and expeditious disposition of cases”).
In the Second Circuit, when a plaintiff seeks dismissal of an action with prejudice
brought under the FLSA pursuant to Rule 41(a)(1)(A) via a stipulation of dismissal, court
approval of the settlement is required. Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199,
206 (2d Cir. 2015) (holding that the FLSA is an "applicable federal statute," such that "Rule
41(a)(1)(A)(ii) stipulated dismissals settling FLSA claims with prejudice require the approval of
the district court or the [Department of Labor] to take effect") (cleaned up). To obtain such a
dismissal, "the parties must satisfy the Court that their agreement is 'fair and
8

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 9 of 18

reasonable.'" Penafiel v. Rincon Ecuatoriano, Inc., No. 15-CV-112, 2015 WL 7736551, at *1
(S.D.N.Y. Nov. 30, 2015); see also Velasquez v. SAFI-G, Inc., 137 F. Supp. 3d 582, 584 (S.D.N.Y.
2015) (same).
Dismissals of FLSA actions other than via a stipulation of dismissal do not require Cheeks
approval. For example, in Mei Xing Yu v. Hasaki Rest., Inc., 944 F.3d 395, 400 (2d Cir. 2019), the
Second Circuit held that dismissal of an FLSA action pursuant to Federal Rule of Civil Procedure
68(a) does not require court approval. Recognizing that the FLSA does not contain clear
language requiring court approval for FLSA settlements, the Second Circuit distinguished
dismissal of an FLSA action in this manner from one where the parties simply filed a stipulation
of dismissal. It recognized that the act of filing the suit, airing the parties' dirty laundry in public
and before a judge, and then coming to an agreement distinguishes stipulated judgments from
private, back-room compromises that could easily result in exploitation of the employees and
the coercive release rights under the FLSA. Id. It found that Rule 68(a) avoids any secret
settlement problem because offers of judgment are publicly filed on the court's docket, as
required by the Rule. Mei Xing Yu, 944 F.3d at 411-12; see also Gaughan v. Rubenstein, 261 F.
Supp.3d 390 (S.D.N.Y. 2017) (finding pre-litigation settlement of FLSA claim enforceable; court
approval pursuant to Cheeks not required for out-of-court settlement to be binding on
plaintiff).
In this case, the parties reached a settlement agreement in a settlement conference
before the undersigned. The material terms were set forth in a written Term Sheet signed by
the parties and their counsel in the presence of the undersigned. The Term Sheet did not
condition dismissal on the filing of a stipulation of dismissal. Although the parties
9

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 10 of 18

contemplated preparing a more formal written agreement, they expressly agreed that they had
reached agreement on the material terms and that such terms were binding as of the date they
signed the Term Sheet. Winston v. Mediafare Entm't Corp., 777 F.2d 78, 80 (2d Cir. 1985) (“[t]he
mere intention to commit an agreement to writing will not prevent contract formation prior to
execution.”); Ciaramella v. Reader's Digest Ass'n, Inc., 131 F.3d 320, 322 (2d Cir. 1997) (“parties
are free to bind themselves orally, and the fact that they contemplate later memorializing their
agreement in an executed document will not prevent them from being bound by
the oral agreement”); Int'l Telemeter Corp. v. Teleprompter Corp., 592 F.2d 49 (2d Cir. 1979)
(enforcing oral settlement agreement although contemplated formal instrument not executed);
Foster v. City of New York, No. 96 CIV. 9271 (PKL), 2000 WL 145927, at *3-4 (S.D.N.Y. Feb. 7,
2000) (enforcing oral settlement agreement where attorneys negotiated settlement with the
assistance of a magistrate judge and informed the court that settlement had been
reached); Raghavendra v. Trustees of Columbia Univ., 686 F. Supp. 2d 332, 341 (S.D.N.Y. 2010)
(enforcing an agreement reflected in a term sheet that “expressly provide[d] that it was not
meant to be the final expression of the settlement agreement”), aff’d in relevant part,
remanded on other grounds, 434 F. App’x 31 (2d Cir. 2011).
Although the Term Sheet contemplated that the Defendants would provide confessions
of judgment that could be filed in an enforcement action should Defendants fail to make the
settlement payments, the provision of such confessions of judgment was not a condition
precedent to the settlement becoming effective or enforceable. The parties did contemplate
approval of the settlement by the Court and agreed that Court approval would trigger
commencement of the settlement payments. The parties consented to this Court’s jurisdiction
10

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 11 of 18

the same day as the settlement conference, and they signed the Consent Stipulation for this
very purpose. That Consent Stipulation was entered by Judge Schofield shortly thereafter.
After it became clear that the parties were not going to get to a resolution on the
written agreement and that Defendants appeared unwilling or unable to pay the settlement to
which they had agreed, and insofar as Plaintiffs’ counsel rightly sought to have his clients paid
sooner rather than later, this Court dismissed the action with prejudice. This dismissal was
done under Rule 41(a)(2) insofar as it was at the Plaintiffs’ request and on terms that this Court
deemed proper and because of the Court’s need to efficiently mange its docket. In particular,
the Court determined that: (1) the parties had agreed to settle the matter and set forth the
material terms of the settlement in the binding Term Sheet; (2) this Court supervised the
settlement negotiations and found that the settlement reflects a reasonable compromise of a
bona fide dispute over wages due to Plaintiffs; (3) Plaintiffs could not receive the benefit of
their bargain without this Court’s approval of the settlement and an enforcement action by
their counsel; and (4) Plaintiffs’ counsel sought to bring such an enforcement action in state
court.
2. Motion to Reopen Case Under Rule 60
Rule 60(a) of the Federal Rules of Civil Procedure provides, in relevant part, that a “court
may correct a clerical mistake or a mistake arising from oversight or omission whenever one is
found in a judgment, order, or other part of the record.” F. R. Civ. P. 60(a). A motion under Rule
60(a) is available only to correct a judgment for the purpose of reflecting accurately a decision
that the court actually made.” Hodge ex rel. Skiff v. Hodge, 269 F.3d 155, 158 (2d Cir. 2001)
(quotations and citation omitted); see also Rezzonico v. H&R Block, Inc., 182 F.3d 144, 150-51
11

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 12 of 18

(2d Cir. 1999) (“In deciding whether Rule 60(a) applies, courts distinguish between changes that
implement the result intended by the court at the time the order was entered and changes that
alter the original meaning to correct a legal or factual error, because Rule 60(a) allows for the
former, but not the latter” (quotations and citation omitted)); Paddington Partners v. Bouchard,
34 F.3d 1132, 1140 (2d Cir. 1994) (“An error in a judgment that accurately reflects the decision
of the court or jury as rendered is not ‘clerical’ within the terms of Rule 60(a).”) “Rule 60(a) is
not meant to provide a way for parties to relitigate matters already decided, to change errors in
what a court has deliberately done, or to attempt to establish a right to relief which the court
has not previously recognized.” L.I. Head Start Child Dev. Servs., Inc. v. Econ. Opportunity
Comm'n of Nassau Cty., Inc., 956 F. Supp. 2d, 402, 409; accord Employers Mut. Cas. Co. v. Key
Pharm., Inc., 886 F. Supp. 360, 363 (S.D.N.Y. 1995). In sum, Rule 60(a) allows a court to clarify a
judgment in order to correct a failure to memorialize part of its decision, to reflect the
necessary implications of the original order, to ensure that the court's purpose is fully
implemented, or to permit enforcement, “[but] does not allow a court to make corrections
that, under the guise of mere clarification, reflect a new and subsequent intent because it
perceives its original judgment to be incorrect.” L.I. Head Start, 956 F. Supp. 2d at 409
(quotations and citations omitted); see also Employer Mut., 886 F. Supp. at 363 (“[A] motion
under Rule 60(a) can only be used to make the judgment or record speak the truth and cannot
be used to make it say something other than what originally was pronounced” (quotations and
citation omitted)). After an appeal has been docketed and while it is pending, however, Rule
60(a) prohibits any such corrections absent leave from the appellate court. Fed. R. Civ. P. 60(a).

12

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 13 of 18

In this case, Plaintiffs sought to reopen this Court’s dismissal of the action to get
clarification on which settlement agreement the Court approved. (ECF No. 208) Although they
did not cite Rule 60(a), this Court construes the motion to be pursuant to Rule 60(a) to the
extent they sought “clarification” of this Court’s order of dismissal. Because they also filed an
appeal of the dismissal of the action, they also sought a stay of the appeal so that this Court
could address their motion. The Second Circuit granted the stay, giving this Court leave to
clarify its prior order. As set forth above, the settlement that this Court approved was the
settlement reflected in the binding Term Sheet. This Court should have simply issued a
clarifying order rather than reengage with the parties on their settlement, as it was without
jurisdiction to further assist the parties after this action had been dismissed with prejudice.
Hendrickson v. United States, 791 F.3d 354, 359 (2d Cir. 2015); Melchor v. Eisen & Son Inc., 15cv-00113, 2016 WL 3443649, *6 (S.D.N.Y. June 10, 2016).
To the extent Plaintiffs’ motion at ECF No. 208 was intended to be pursuant to Federal
Rule of Civil Procedure 60(b), their request is denied. Rule 60(b) provides that a court may
relieve a party or its legal representative from a final judgment, order, or proceeding for,
among other reasons, mistake, inadvertence, or any other reason that justifies relief. Fed. R.
Civ. P. 60(b)(1), (6). A motion seeking relief pursuant to Rule 60(b) “is addressed to the sound
discretion of the district court.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); see also
LaBarca v. GRJH, Inc., No. 616CV826MADTWD, 2018 WL 1136918, at *8 (N.D.N.Y. Mar. 1,
2018). Here, the only applicable subsections of Rule 60(b) that arguably could apply are Rule
60(b)(1) and Rule 60(b)(6). Rule 60(b)(1), however, is not applicable because Plaintiffs have not
cited to any mistake, inadvertence, surprise or excusable neglect. Rule 60(b)(6) is not an
13

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 14 of 18

appropriate basis for relief from this Court’s order of dismissal either. Rule 60(b)(6) relief is
available only in “extraordinary circumstances.” Buck v. Davis, 137 S. Ct. 759, 777-78 (2017)
(quotation omitted); Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009). But Plaintiffs have not
presented any extraordinary circumstances. That no stipulation of dismissal was presented
pursuant to Rule 41(a)(1)(A) and no confessions of judgment were signed do not constitute
extraordinary circumstances, particularly insofar as the Term Sheet did not require these things
prior to dismissal. Plaintiffs do not dispute that they signed a binding Term Sheet. Nor do they
dispute that they sought enforcement of the settlement agreement. The law is also clear that
breach of a settlement agreement is not a ground for reopening under Rule 60(b) where the
case has been dismissed with prejudice without reserving jurisdiction over claims arising out of
the settlement agreement, as was the case here. Kokkonen v. Guardian Life Ins. Co. of America,
511 U.S. 375 (1994); Melchor, 2016 WL 3443649 at *7; Manning v. Dubois, 95-cv-1806, 1996
WL 153950, *2 (S.D.N.Y. Apr. 2, 1996).
Finally, Plaintiffs correctly point out that this Court is without jurisdiction to enforce the
settlement. Hendrickson, 791 F.3d at 358-59. To the extent Plaintiffs seek to enforce the
settlement they reached, they may do so in state court. Whether the parties ever agreed to
terms beyond or different from the ones in the Term Sheet can be resolved in an enforcement
action in state court.
CONCLUSION
Having considered Plaintiffs’ motion at (ECF No. 206), this Court hereby clarifies,
pursuant to Rule 60(a), that the settlement agreement it approved when dismissing the action
at ECF No. 203 was the one reflected in the parties’ binding Term Sheet attached hereto. To
14

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 15 of 18

the extent this Court reopened this case “for all purposes” at ECF No. 222, that order is hereby
VACATED as having been in error. The Motion in Limine filed at ECF No. 224 was filed in
contravention of this Court’s Individual Practices, and this Court is without jurisdiction to decide
it. Accordingly, it is TERMINATED. The motion at ECF No. 231 for enforcement of the
settlement agreement is TERMINATED because this Court is without jurisdiction to enforce the
settlement for the reasons set forth above. The Clerk of Court is respectfully requested to close
this case for all purposes, it having been previously dismissed with prejudice.
SO ORDERED.
DATED:

New York, New York
August 24, 2021
______________________________
KATHARINE H. PARKER
United States Magistrate Judge

15

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 16 of 18

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 17 of 18

Case 1:17-cv-00816-KHP Document 234 Filed 08/24/21 Page 18 of 18