Entrada v. Marriott Hotel Services Inc

Filing 72

ORDER denying 63 Motion to Enforce Settlement Agreement. Signed by Honorable Robin J. Cauthron on 1/20/17. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LORNA ENTRADA,
Plaintiff,
v.
MARRIOTT HOTEL SERVICES, INC.,
d/b/a NATIONAL CENTER FOR
EMPLOYEE DEVELOPMENT
CONFERENCE CENTER & HOTEL,
Defendants.

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MEMORANDUM OPINION AND ORDER
Plaintiff filed a Motion to Enforce Settlement Agreement (Dkt. No. 63). Defendant
objects, arguing the Settlement Agreement contains material terms that are still in dispute. The
Motion is now at issue.
Settlement agreements may be enforced by the Court. United States v. Hardage, 982
F.2d 1491, 1496 (10th Cir. 1993). A motion to enforce a settlement agreement is treated as a
motion for summary judgment. Russell v. Bd. of Cnty. Comm’rs of Carter Cnty., 2000 OK CIV
APP 21, ¶ 7, 1 P.3d 442, 445. If the terms of the settlement agreement are disputed, the Court
should conduct an evidentiary hearing. Id.; Hardage, 982 F.2d at 1496-97 (stating the Tenth
Circuit has not adopted the “ironclad rule” that the parties must be allowed an evidentiary
hearing). Here, the Court has determined an evidentiary hearing would not provide meaningful
evidence not already present in the briefs.
At issue are certain nonmonetary terms of the Settlement Agreement. On November 7,
2016, counsel for Defendant sent an offer including a list with the items:

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Full and complete release of all claims.
An appropriate portion of the settlement will be attributed to wages. After
the subtraction of attorney’s fees, if applicable, Plaintiff’s portion will be
a 70/30 split with 70% of the portion going to the associate as W-2 wages.
Confidentiality clause.
No-rehire/no re-apply provision.
Non-disparagement clause.
Liquidated damages provision of 25% of the settlement amount.

(Dkt. No. 63-1). In response, Plaintiff’s counsel accepted some terms and rejected others,
inserting her counteroffers:
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Full and complete release of all claims.
Agreeable.
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An appropriate portion of the settlement will be attributed to wages. After
the subtraction of attorney’s fees, if applicable, Plaintiff’s portion will be
a 70/30 split with 70% of the portion going to the associate as W-2 wages.
Agreeable.
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Confidentiality clause.
Mutual is fine.
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No-rehire/no re-apply provision.
I believe this will be fine but [I] do have to confirm.
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Non-disparagement clause.
Mutual is fine, and we would seek that a neutral reference for Ms. Entrada be
given.
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Liquidated damages provision of 25% of the settlement amount.
To my understanding, set liquidated damages amounts are generally held invalid.
However, some liquidated to be determined [clause] would be agreeable, again
provided the terms are mutual.
(Dkt. No. 63-2, pp. 1-2) (emphasis added). Four days later, the counselors engaged in oral
negotiations. Defendant represents that Marriott never agreed to mutual confidentiality or
mutual liquidated damages, but states the parties agreed Marriott would provide a neutral
reference to prevent any future disparagement. To memorialize the conversation, Marriott’s
counsel sent an email on November 11, 2016:
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Full and complete release of all claims by Ms. Entrada.
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An appropriate portion of the settlement will be attributed to wages. After
the subtraction of attorney’s fees, if applicable, Plaintiff’s portion will
require a 70/30 split with 70% of the portion going to the associate as W-2
wages.
Confidentiality clause.
No-rehire/no re-apply provision.
Non-disparagement clause by Ms. Entrada/Neutral reference by Marriott.
Liquidated damages provision of 25% of the settlement amount.

(Dkt. No. 68-3, p. 2). Plaintiff argues the counselors never specifically discussed the mutuality
of the confidentiality or liquidated damages terms because Defendant had accepted them.
Settlement agreements are subject to state law requirements regarding formation and
enforceability. Oklahoma contract law requires that consent of the parties be (1) free,
(2) mutual, and (3) communicated by each to the other. 15 Okla. Stat. § 51. “Consent is not
mutual unless the parties all agree upon the same thing in the same sense.” 15 Okla. Stat. § 66.
Accordingly, the Oklahoma Supreme Court requires the acceptance be “‘unconditional,
identical to the offer, and does not modify, delete or introduce any new terms into the offer.’”
In re De-Annexation of Certain Real Prop. from City of Seminole, 2009 OK 18, ¶ 9, 204 P.3d
87, 89 (citation omitted). Any modification of the terms of an offer is a counteroffer that rejects
the previous offer. Id. (stating “‘[a] qualified acceptance is a new proposal’”) (citations
omitted).
The Court finds a lack of agreement on the terms in question. Defendant proposed
nonmonetary terms, Plaintiff made a counteroffer, and Defendant made another counteroffer
using very similar language to its first offer, with changes reflecting the neutral reference
negotiations. The parties then continued to negotiate terms as they exchanged drafts of the
Settlement Agreement. Defendant voiced its lack of agreement on the confidentiality clause,
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which had been drafted as a mutual term, stating “Marriott cannot agree to make the terms
mutual. . . . Although you state in your comment to this paragraph that we discussed making
the nondisclosure provisions mutual, this [is] true only with respect to the non disparagement
provision.” (Dkt. No. 63-6.)
Accordingly, there is no valid settlement agreement in place. Because the parties’
previous trial date has passed, the Court will set the case for the next available trial docket. The
docket call is February 8, 2017, at 9:30 a.m. The following documents are to be filed by Friday,
February 3, 2017: trial briefs, motions in limine, and pretrial reports. Responses to motions are
to be filed by noon on Tuesday, February 7, 2017, and the jury instructions and requested voir
dire are to be filed by midnight on the same day.
CONCLUSION
Accordingly, Plaintiff’s Motion to Enforce Settlement Agreement (Dkt. No. 63) is
DENIED. The case is set on the February trial docket.
IT IS SO ORDERED this 30th day of January, 2017.

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