Ray et al v. Caliber Home Loans Inc et al

Filing 43

REPORT AND RECOMMENDATIONS ON MOTION TO ENFORCE SETTLEMENT - Upon Assurant's unopposed motion to enforce, it is hereby respectfully recommended that the Court enter judgment enforcing the settlement as follows: (1) Directing Assurant to pay Pla intiffs, in the amount of $1223.00, in a check made jointly payable to Plaintiffs and Defendant Caliber Home Loans, Inc. The Order should also note that the payment may be made by Assurant's affiliate, Standard Guaranty. (2) Dismissing Pl aintiffs claims against Assurant, Inc., in the above- captioned action with prejudice. (3) Releasing Assurant, Inc., and Standard Guaranty from any claims Plaintiffs may have against them. Because Plaintiffs' claim against Assurant is the sole remaining claim in the case, the Court should make its enforcement order part of a judgment that is final under Fed. R. Civ. P. 54. Objections to R&R due by 1/24/2017. Signed by Magistrate Judge Michael R. Merz on 1/10/2017. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES RAY, et al.,
Plaintiffs,

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vs

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Case No. 3:16-cv-364
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

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CALIBER HOME LOANS, INC., et al.,

Defendants.

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REPORT AND RECOMMENDATIONS ON MOTION TO ENFORCE
SETTLEMENT

This case is before the Court on Defendant Assurant’s Motion to Enforce Settlement
(ECF No. 39).1 Assurant filed and served that Motion on December 16, 2016. The Court then
advised Plaintiffs of their opportunity to oppose the Motion and that the deadline for filing an
opposition was January 9, 2017 (Order to Pro Se Plaintiffs, ECF No. 40). Plaintiffs have failed
to file any opposition. Since granting the Motion will result in a judgment, the Motion requires
analysis, rather than a reflexive grant for lack of opposition. S. D. Ohio Civ. R. 7.2(a)(2).
Because the Motion seeks entry of judgment, the Magistrate Judge treats it as a dispositive
motion on which he is required to enter a recommendation, rather than a decision. See 28 U.S.C.
§ 636(b).

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This motion is consolidated with Assurant’s Memorandum in Opposition to Plaintiff’s Motion to Amend (ECF No.
34) which the Court has denied in a separate Order (ECF No. 41).

1

Plaintiffs sued Assurant along with Nationstar Mortgage LLC and Caliber Home Loans,
Inc., regarding property at 41 North Pleasant Street in Enon, Ohio. The claim made against
Assurant was that, having been hired by Caliber to inspect damage at this property, Assurant
failed to do so properly (Complaint, ECF No. 2, ¶ 15). After answering the Complaint, Assurant
shows through the Declaration of its attorney, Peter J. Georgiton, that it entered into settlement
negotiations with Plaintiffs and offered to pay them $1,223.00 to settle their claims, contingent
on making the settlement check jointly payable to Plaintiffs and Caliber Homes, release of all
claims, and dismissal of Assurant with prejudice. On October 21, 2016, Plaintiff Patricia Ray
accepted that offer on behalf of Plaintiffs. Defendants’ counsel sent a settlement agreement and
followed up several times, but has received no further response from Plaintiffs.
Federal courts have authority to compel enforcement of an agreed settlement in summary
fashion, whether or not written. Bowater North American Corp. v. Murray Machinery, Inc., 773
F.2d 71 (6th Cir. 1985); Aro Corp. v. Allied Witan Co., 531 F.2d 1368 (6th Cir. 1976). If there is
a factual dispute about the content of the settlement, an evidentiary hearing must be held to
determine what those terms are. Kukla v. National Distillers Products Co., 483 F.2d 619 (6th
Cir. 1973). But here the Plaintiffs have not responded in any way to raise a question of fact about
whether they agreed to a settlement.
A settlement agreement is a type of contract and is therefore
governed by contract law. Bamerilease Capital Corp. v. Nearburg,
958 F.2d 150, 152 (6th Cir. 1992). "Questions of contract
interpretation are generally considered questions of law subject to
de novo review." Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653
(6th Cir. 1996). "[W]e review the district court's decision to grant a
motion to enforce the settlement . . . for abuse of discretion," after
reviewing "for clear error the district court's factual determination
that the parties had agreed to settlement terms." Re/Max Int'l, Inc.
v. Realty One, Inc., 271 F.3d 633, 645 (6th Cir. 2001).

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Neely v. Good Samaritan Hosp., 2009 U.S. App. LEXIS 17060 (6th Cir. Ohio 2009).

Upon Assurant’s unopposed motion to enforce, it is hereby respectfully recommended
that the Court enter judgment enforcing the settlement as follows:
(1) Directing Assurant to pay Plaintiffs, in the amount of $1223.00, in a check made jointly
payable to Plaintiffs and Defendant Caliber Home Loans, Inc. The Order should also note that
the payment may be made by Assurant’s affiliate, Standard Guaranty.
(2) Dismissing Plaintiffs’ claims against Assurant, Inc., in the above-captioned action with
prejudice.
(3) Releasing Assurant, Inc., and Standard Guaranty from any claims Plaintiffs may have against
them.
Because Plaintiffs’ claim against Assurant is the sole remaining claim in the case, the
Court should make its enforcement order part of a judgment that is final under Fed. R. Civ. P. 54.

January 10, 2017.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
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United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
153-55 (1985).

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