Metke v. Bank Of New York Mellon et al

Filing 99

Opinion and Order: Plaintiff is ordered to supply a completed W-9 form and an executed Agreement to counsel for BANA within 30 days of the Court's order to show cause why this case should not be dismissed with prejudice for failure to comply with this Court's order. Signed on 6/6/16 by Magistrate Judge Thomas M. Coffin. (ljb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BRIAN METKE,
Plaintiff,
v.

Civ. No. 3:12-cv-00384-MC
OPINION AND ORDER

BANK OF NEW YORK MELLON, et al.,
Defendants.

COFFIN, Magistrate Judge:
On August 14, 2015, following a settlement conference before this court, the parties
advised the court that the case had settled (#83) and agreed on the record to the key terms of the
settlement agreement and to this court's continuing jurisdiction to resolve any disputes in the
settlement process and enforce the settlement agreement that was reached and put on the record.
#92 at 2-3. Thereafter, this court entered a Sixty-Day Order of Dismissal with prejudice. #84.
On September 10, 2015, upon order of this court, defendants provided a draft Settlement
Agreement and Release ("Agreement") to plaintiff's then counsel, Michael Cox ("Cox"), and
after incorporating several proposed edits provided by Cox, defendants delivered the final draft
1 - OPINION AND ORDER

of the Agreement to plaintiff on January 5, 2016. Deel. of Brian Kiolbasa in Supp. of Defs.'
Confidential Mem. Supp. Enforcement of Settlement Agreement ("Kiolbasa Deel.")

iii!

8-10;

Defs.' Confidential Mem. Supp. Enforcement of Settlement Agreement 3. The parties' atteinpts
to memorialize the settlement agreement ultimately failed, however, when plaintiff created his
own settlement agreement that was inconsistent with the parties' original agreement.
On April 29, 2016, this court ordered the strict enforcement of defendant's Agreement
because it reflected the negotiations and key terms agreed to by the parties. #97. Included in the
key terms of the Agreement were requirements that plaintiff deliver an executed copy of the
Agreement and a completed W-9 tax form to defendant's counsel and that within 20 business
days after receipt, defendant Bank of America, N.A. (BANA) was required to submit payment to
plaintiff. However, defendant's counsel informed this court by letter on June 2, 2016, that as of
that date, plaintiff has failed to provide BANA with the above mentioned documents and that on
May 23, 2016, plaintiff's current counsel informed defendant that plaintiff refuses to sign the
Agreement. The letter also states that in order for BANA to comply with federal regulations and
IRS guidelines, it is required to obtain a completed W-9 form from plaintiff prior to issuing
payment and, therefore, plaintiff's failure to provide a completed W-9 form to BANA, as well as
an executed agreement, has frustrated BANA's efforts to comply with this court's order and
enforcement of the Agreement.
Because plaintiff's refusal to supply BANA with a completed W-9 form and executed
agreement has frustrated BANA's efforts to comply with this court's order of April 29, 2016,
this court orders plaintiff to supply a completed W-9 form and executed agreement to counsel for
BANA within 30 days of this order or show cause why this case should not be dismissed with
prejudice for failure to comply with this court's order.

2 - OPINION AND ORDER

CONCLUSION

For the reasons stated, plaintiff is ordered to supply a completed W-9 form and an
executed Agreement to counsel for BANA within 30 days of this court's order or show cause
why this case should not be dismissed with prejudice for failure to comply with this court's
order.
IT IS SO ORDERED.
DATED this

f9 ~y of June, 2016.

3 - OPINION AND ORDER