URBANSKI et al v. BAYADA HOME HEALTH CARE

Filing 28

MEMORANDUM (Order to follow as separate docket entry) re 19 MOTION to Enforce Settlement filed by Steven Urbanski, Lisa Urbanski. Signed by Honorable A. Richard Caputo on 7/19/2017. (arcsec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LISA AND STEVEN URBANSKI, H/W
INDIVIDUALLY AND AS PARENTS OF
J.U., A MINOR

CIVIL ACTION NO. 3:14-cv-1508
(JUDGE CAPUTO)

Plaintiffs,
v.
BAYADA HOME HEALTH CARE,
Defendant.
MEMORANDUM
Presently before the Court is Plaintiffs’ Motion to Enforce Settlement. (Doc. 19.) For
the reasons that follow, the Motion will be denied.
I. Background
Plaintiffs commenced this action on April 16, 2014 in the Unite d States District
Court for the Eastern District of Pennsylvania. (Doc. 1.) Lisa and Steven Urbanski are
the parents of J.U., a minor diagnosed with Partial Trisomy 16, which renders J.U.
largely non-verbal. The Amended Complaint (Doc. 3) raises claims for damages
stemming from the employment of Kyoni Nieves by Defendant Bayada Home Health
Care (“Bayada”). According to the Amended Complaint, Ms. Nieves was an aide to J.U.
for a period of time in 2012 and 2013, during which she accompanied J.U. to school
and, among other things, assisted J.U. in the restroom. (Am. Compl. ¶¶ 15-16.) On
January 21, 2014, Ms. Nieves was indicted for, inter alia, Conspiracy to Commit Sex
Trafficking of Children by Force and Coercion, as well as other related charges. (Id. ¶
20.) On June 14, 2014, Defendant filed a Rule 12(b) motion which, inter alia, challenged
venue. (Doc. 8.) On June 30, 2014, the district court granted Defendant’s motion in part,
and the case was transferred to this Court. (Doc. 12.) On April 22, 2015, the Court
granted Defendant’s Rule 12(b) motion in part, dismissing Plaintiffs’ claim for negligent
hiring in Count II, but allowing the remaining claims to proceed. (Doc. 17.)

Thereafter, the parties engaged in limited discovery and began settlement
discussions. (See Ex. B., Doc. 22.) On May 18, 2016, Plaintiffs, through their attorney
Aaron Freiwald and paralegal Laura Laughlin,1 advised Joann Drust, counsel for
Defendant, that their settlement demand was $100,000. On May 31, 2016, Drust sent a
letter to Laughlin inquiring into the medical records relating to Plaintiff Lisa Urbanski’s
two visits to the emergency room in April 2014 and requesting documents supporting
any financial loss alleged in connection with these visits. At some point thereafter, it
appears the parties engaged in additional settlement discussions, with Plaintiffs reducing
their demand to $75,000 and Defendant offering $15,000, as indicated in Drust’s
September 20, 2016 email to Friewald.
In that same September 20, 2016 email, Drust inquired into whether any
additional “special damages” supporting the settlement figure demanded by Plaintiffs
had been obtained by Friewald. The email noted that Bayada offered to meet with the
Urbanskis in person to continue settlement discussions if the parties were “unable to
reach a mutually agreeable figure.” A follow-up email from Drust that same day
reiterated that Bayada sought evidence of additional damages in order to “get the
number higher.” Friewald responded via email that this “is not what we discussed,” and
that Drust had told Friewald she “would go back [to Bayada] and get 35K.” On October
4, 2016, Laughlin emailed Drust in response to Drust’s request for additional
documentation supporting Plaintiffs’ damages. The email included some additional
documentation and requested that Drust inform Laughlin about Bayada’s position with
regards to the $35,000 settlement payment. On October 17, 2016, Drust replied to
Laughlin and stated that Laughlin’s email “is not very helpful as it doesn’t really
reference . . . anything connected to the event raised in the Complaint.” Drust noted that
“without more in the nature of any out of pocket or special damages, I will not be able to

1

Defendant refers to Laughlin as a paralegal (Doc. 22, at 4), and Plaintiffs do not
state her position.
2

argue for additional monies towards settlement.” Laughlin responded to Drust’s email on
October 19, 2016, disagreeing with Drust’s characterization of Laughlin’s original email
and requesting a time to speak over the phone.
On October 25, 2016, Friewald emailed Drust “following up” on a recent
conversation between Drust and Laughlin. Friewald requested Drust to advise whether
Bayada “is prepared to make good on our previous conversation and to resolve this case
for $35,000.” Friewald further stated: “If not, we need to resume immediately our
discovery in this case. Not hearing from you, we will Notice the depositions immediately
and will involve the court as needed to secure the discovery we need to prepare this
case for trial.” On October 26, 2016, Drust responded to Friewald’s email, stating: “At
this point, it seems that we have no choice but to proceed with mediation through the
Court as agreed.” Drust indicated again that she needed something “more in the way of
actual damages” to present to Bayada, and that the documentation supplied thus far
was “simply not enough.” On the same day, Drust also emailed Laughlin, agreeing that a
phone call “would be a good idea.” (Ex. C., Doc. 22.) Drust noted that she had a meeting
with Bayada scheduled for mid-November, but wanted “to schedule something [with
Plaintiffs’ counsel] before then.”
Settlement discussions between counsel broke down thereafter. On November 3,
2016, Friewald emailed Drust after Drust apparently cancelled a conference call and had
yet to reschedule. (Ex. C.) The email stated:
We were to have a conference call on Tuesday. You [Drust] could not be
available despite the fact that we had confirmed the date and time. I
[Friewald] had to be the one to call your office to find out you would not be
participating.
I was told you would call yesterday to reschedule. That did not happen.
I think at this point I have a right to be irritated.
Moreover, you are dragging your feet here. This case should have been
settled months ago, based on our prior conversations.
This has become ridiculous and insulting and downright rude.
I am preparing Notices of Deposition for all of the Bayada witnesses we
intend to take testimony from, since you apparently cannot get things
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together and moving on your end.
Please don’t look to me to extend professional courtesies with respect to
scheduling as you have not extended any to us.
Later that day, Drust responded to Friewald’s email. Drust suggested that the
parties proceed to mediation rather than pursue depositions, considering that they
had already notified the Court of their interest in mediation within the Middle
District. Drust stated that, if Friewald preferred to “go straight to depositions,” she
would also prepare Notices for Friewald’s clients and any other fact witnesses
identified in the initial disclosure. Drust further requested that Friewald send her
proposed dates for the depositions.
Friewald replied to Drust’s email that “[t]here are two paths ahead and it
really is up to you [Drust] and your client: We can settle the case according to the
terms you and I discussed some while back. Or we can litigate the case.
Mediation is no longer an option.” Friewald also noted that “[y]ou [Drust] and I had
a productive conversation about how to resolve this case and even got to a
number. I [Friewald] got authority for that number on my end. You are re-neging.”
Friewald concluded by stating that he was sending out Notices of Depositions
with dates of his choosing.
Drust responded to Friewald’s email, acknowledging Friewald’s decision to
litigate rather than engage in mediation and stating she would inform Bayada of
this decision. Friewald replied the next day, November 4, 2016, indicating that
Drust should either speak with Bayada “to come up with the money you said
would be available to settle this case or, if not, preparing for depositions.” Drust
responded that she would be “speaking with [her] clients on the 16 th [of
November] at which time we will once again review the damages which you have
presented and which you believe support a $20,000 increase in the current
settlement offer. Should you have additional information which you think may be
relevant to that discussion (other than the costs of litigation argument already
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made), please feel free to provide those to me in the interim.”
On November 21, 2016, Drust emailed Friewald, informing that she had
spoken with her clients the previous week “and the claims representative is
interested in speaking with you [Friewald], directly.” It appears the parties spoke
by phone later that day.
On November 29, 2016, Karen Perrone, Bayada’s manager of legal
services, emailed Friewald, stating that Bayada was “agreeable to the $25,000,
but can only offer $7,500 as a donation to the Urbanski’s organization, Brighter
Journeys.” (Ex. A, Doc. 19.) Friewald responded that “[w]e spoke to our client and
she accepts these terms to settle the case.” Perrone responded that, “[w]e will
draft the Release and I hope to send it to you this week.” On December 13, 2016,
Drust emailed Friewald the “proposed Settlement Agreement and Release.” (Ex.
E, Doc. 23.) This document contained a provision which stated: “URBANSKIS,
including, without limitation, the Minor, J.U., by and through his Parents, Lisa and
Steven Urbanski, hereby release and forever discharge BAYADA . . . from and
against all actions . . . now known or unknown, arising out of or relating to the
facts alleged in the pleadings or any act similar to those that are the subject of the
Lawsuit[.]” (Ex. B, Doc. 19.) Drust noted that the proposed Settlem ent Agreement
was “in PDF and Word form, for ease of editing,” and requested Friewald to “add
any language you believe is necessary to cover [the donation] continency.” (Ex.
E.) On December 27, 2016, Drust again emailed Friewald “checking in on the
status of the Settlement papers.” (Ex. D, Doc. 22.) On January 3, 2017, Drust
followed up with Friewald once again “about the finalization of the papers needed
to have this case discontinued and marked as settled in the Middle District.” On
January 4, 2017, Drust emailed Laughlin a draft stipulation for dismissal.
Some time thereafter, counsel for Plaintiffs informed Drust that they were

5

not releasing J.U.’s claims.2 The parties dispute whether they had agreed to have
J.U. release any claims he has or could have in the future in exchange for the
settlement payment. Plaintiffs contend that J.U. was never a party to the lawsuit,
no claims were ever brought on his behalf, and that waiving claims on behalf of
J.U. was never part of the settlement negotiations. (Br. in Supp. Mot. to Enforce
9, Doc. 20.) In response, Defendant argues that release agreements often cover
persons not named as parties to a lawsuit but, regardless, J.U. was a party in the
underlying suit and, consequently, a party to the settlement agreement. (Br. in
Opp’n 12-13, Doc. 23.) Attached to their Motion, Plaintif fs included a revised
settlement and release agreement which omits the terms releasing J.U.’s claims.
(Ex. C, Doc. 19.) Plaintiffs now move for the Court to enforce this revised
agreement. (Mot. to Enforce ¶ 27, Doc. 19.)
II. Legal Standard
Settlement agreements are governed by the ordinary principles of contract law.
See In re Cendant Corp. Prides Litig., 233 F.3d 188, 193 (3d Cir. 2000). “As with any
contract, it is essential to the enforceability of a settlement agreement that ‘the minds of
the parties should meet upon all the terms, as well as the subject-matter, of the
[agreement].’” Mazzella v. Koken, 739 A.2d 531, 536 (Pa. 1999) (quoting Onyx Oils &
Resins, Inc. v. Moss, 80 A.2d 815, 817 (Pa. 1951)). Under Pennsylvania law, the test for
enforceability of an agreement is whether: (1) both parties have manifested an intention
to be bound by its terms, and (2) the terms are sufficiently definite to be specifically
enforced. Channel Homes Ctrs., Div. Of Grace Retail Corp. v. Grossman, 795 F.2d 291,
298-99 (3d Cir. 1986). “[A]n agreement to settle a lawsuit, voluntarily entered into, is
binding upon the parties, whether or not made in the presence of the court, and even in
the absence of a writing.” Green v. John H. Lewis & Co., 436 F.2d 389, 390 (3d Cir.

2

The Court has not been provided with any emails or other correspondence dated
after January 4, 2017.
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1970). However, “[e]ven when there is evidence of mutual assent, a settlement
agreement does not constitute an enforceable contract if there are ‘ambiguities and
undetermined matters which render [the] settlement agreement impossible to
understand and enforce.’” Shell's Disposal & Recycling, Inc. v. City of Lancaster, 504
Fed. Appx. 194, 202 (3d Cir. 2012) (quoting Mazzella, 739 A.2d at 537 (internal
quotation marks omitted)); see Riviello v. First Nat’l Cmty. Bank, 2013 WL 1348259, at
*1 (M.D. Pa. Apr. 3, 2013) (“If there are matters yet to be determined about the essential
terms of a settlement, there is no agreement to enforce.”) (citation omitted). Indeed,
“[w]here parties exchange draft agreements that differ dramatically on their essential
terms, the agreement is too ambiguous to be enforceable.” Columbia Gas Transmission,
LLC v. 520.32 Acres, 188 F. Supp. 3d 500, 507 (W .D. Pa. 2016) (citing Shell's Disposal
& Recycling, Inc., 504 Fed. Appx. at 202).
Motions to enforcement settlement agreements resemble motions for summary
judgment. See Tiernan v. Devoe, 923 F.2d 1024, 1031-32 (3d Cir. 1991). “The court
must treat all the non-movant's assertions as true, and ‘when these assertions conflict
with those of the movant, the former must receive the benefit of the doubt.’” Leonard v.
Univ. of Del., 204 F. Supp. 2d 784, 786 (D. Del. 2002) (quoting Tiernan, 923 F.2d at
1032). Therefore, generally courts “should not summarily enforce purported settlement
agreements, in the absence of an evidentiary hearing, where material facts concerning
the existence or terms of an agreement to settle are in dispute.” Intellisource Grp., Inc. v.
Williams, 1999 WL 615114, at *4 (D. Del. Aug. 11, 1999). However, “where essential
issues of fact are lacking, and there is little likelihood that the settlement could be
upheld, it is within the court's discretion to forego a hearing.” Foodserv. Mktg. Assocs.,
Inc. v. O’Keefe, 2004 WL 1527687, at *1 (E.D. Pa. Mar. 2, 2004) (citing Stewart v.
M.D.F., Inc., 83 F.3d 247, 251-52 (8th Cir. 1996)). Indeed, “when ‘the parties' counsel
[are] the sole witnesses to their own conversations,’ the court may properly determine
whether a settlement exists by relying exclusively on the representations of counsel.”
Chaganti & Assocs., P.C. v. Nowotny, 470 F.3d 1215, 1223 (8th Cir. 2006) (quoting
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Stewart, 83 F.3d at 251). Here, because “the only issue that is precluding the settlement
in this matter is whether minor J.U. is a party to this litigation” (Reply Brief 1, Doc. 27;
see Br. in Opp’n 12), the Court sees no basis for holding an evidentiary hearing which no
party has requested.3 See O’Keefe, 2004 WL 1527687, at *1.
III. Discussion
The parties appear to agree that the only issue precluding settlement is whether
minor J.U. is a party to the underlying litigation. (See Br. in Opp’n 12; Reply Br. 1.) Plaintiffs
argue that J.U. has never been a party to this lawsuit and, consequently, including him in
the settlement release was never contemplated. (Br. in Supp. 9.) Defendant contends that
J.U. is indeed a party to this action and, thus, a party to the settlement agreement. (Br. in
Opp’n 12-13.) In the interest of judicial economy, the Court will clarify this issue despite the
procedurally questionable decision to seek resolution of this dispute via a motion to enforce
a settlement agreement.
Federal Rule of Civil Procedure 10(a) mandates that “[t]he title of the complaint must
name all the parties[.]” See also Blasingim v. Hill, 2008 WL 11320088, at *2 (N.D. Ga. Sept.
8, 2008) (“Rule 10(a) of the Federal Rules of Civil Procedure expressly requires that the
parties be fully identified in the pleadings. . . .”) (internal quotation marks and citation
omitted). Courts may also look to the body of the complaint to discern the identity of the
parties. See Saykin v. Donald W. Wyatt Det. Ctr., 2008 WL 2128059, at *2 (D.R.I. May 20,
2008) (citing cases). Additionally, Rule 17(c) requires a court to appoint a guardian ad litem
to represent a minor or incompetent person, unless that person is represented. Generally,
when a parent brings a lawsuit “on behalf” of his or her minor child and has similar interests
as the minor, there is no need for a court to appoint a guardian ad litem, as the parent
adequately represents the minor’s interests. See Burke v. Smith, 252 F.3d 1260, 1264 (11th

3

While Plaintiffs requested oral argument in their Reply Brief only if the Court
needed additional information “on the limited issue of whether minor J.U. is a
party to this action and, thus, should be impacted by the settlement agreement,”
neither party has requested an evidentiary hearing. (Reply Br. 3.)
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Cir. 2001) (citing Croce v. Bromley Corp., 623 F.2d 1084, 1093 (5th Cir. 1980)).
A review of the Amended Complaint (Doc. 3) makes clear that J.U. is a party to the
lawsuit: J.U. is listed in the caption of the Amended Complaint; Lisa and Steven Urbanski
are listed as suing both in their individual capacities and as the parents and natural
guardians of their minor son, J.U. (Am. Compl. Caption, ¶ 2); J.U. is referred to as “minorPlaintiff J.U.” in multiple paragraphs in the body of the pleading4 (id. ¶¶ 2, 34, 35, 36, 37,
38, 46, 47, 48, 49, 50, 66); J.U.’s citizenship is averred in this diversity action (id. ¶ 2); and
the claims in Counts I and II expressly allege injuries suffered by “minor-Plaintiff J.U.” as a
result of Defendant’s alleged negligence (id. ¶¶ 38, 50). Clearly, and contrary to Plaintiffs’
assertions in their instant Motion, J.U. is a party to this action, represented by his parents
who brought claims on his behalf.5
Nevertheless, the Court declines to enforce the settlement agreement proffered by
Plaintiffs because there was never a requisite “meeting of the minds” on the issue of the
release of J.U.’s claims.
On this issue, the Pennsylvania Supreme Court’s decision in Mazzella v. Koken
proves instructive. 739 A.2d 531 (Pa. 1999). In Mazzella, counsel for each party reached

4

Additionally, the Amended Complaint refers to Lisa and Steven Urbanski as
“Plaintiff parents,” further demonstrating that J.U., as “minor-Plaintiff,” was a
distinct party to the lawsuit. (See Am. Compl. ¶ 28.)

5

Subsequent to the filing of the Amended Complaint, the Court ruled on
Defendant's Motion to Dismiss. (See Docs. 16 & 17.) In so doing, the Court
dismissed Count II and determined that the Amended Complaint did not contain
plausible allegations that J.U. suffered harm or was otherwise injured as a result
of Defendant's alleged negligence. (See Doc. 16, at 8-9.) The Court denied
Defendant's Motion with respect to the other Counts, based largely on a theory
that these four claims "are predicated on Bayada's failure to hire properly trained
and audited aides, and on the emotional distress that the plaintiffs have suffered as
a result of the discovery that their son was not being cared by properly trained and
thoroughly vetted aides." (Doc. 16, at 9.) Thus, because the Court concluded that
Plaintiffs failed to plausibly allege a negligent act that caused non-speculative
harm to minor-Plaintiff J.U. (id. at 8), the Court's ruling resulted in only the
parent-Plaintiffs maintaining live claims at this stage of the litigation.
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an agreement on “general conditions” of settlement and informed the court that a settlement
had been negotiated. Id. at 533. Thereafter, counsel for plaintiff submitted a draft settlement
agreement to opposing counsel that conformed to the general terms previously agreed to
by the parties. See id. Subsequently, counsel for defendant made several revisions to the
agreement and returned it to plaintiff’s counsel for his signature. See id. at 534. Plaintiff’s
counsel refused to sign the revised agreement. Id. Thereafter, defendant’s counsel filed a
motion to enforce the settlement agreement, as unilaterally revised, claiming that the parties
had agreed to the essential terms, and that the revisions “merely drafted and modified
additional language to embellish the general conditions set forth in” the original agreement.
See id. In response to the motion, plaintiff’s counsel contended that the revisions to the
agreement were “both major and material,” and thus the revised draft did not embody a
meeting of the minds between the parties. Id. at 535.
The Pennsylvania Supreme Court found that the draft agreement first sent by
plaintiff’s counsel was simply an offer, and the unilaterally revised agreement returned by
defendant’s counsel was a counteroffer, “the effect of which was to terminate the original
offer.” Id. at 538. Moreover, although the parties had reached a general understanding prior
to penning their competing draft agreements, the court held that the parties had not reached
an enforceable agreement because “there was no meeting of the minds with regard to a
material term of the proposed agreement.” Id.; see also Reid v. Diversified Consultants,
Inc., 2013 WL 5818886, at *4 (M.D. Pa. Oct. 29, 2013) (refusing to enforce a settlement
agreement where “there was no meeting of the minds as to an essential term of the
settlement, namely, whether there was a requirement that a written settlement agreement
with a release and confidentiality clause had to be signed by Plaintiff before Defendant was
required to begin making the monthly installment payments”); O’Keefe, 2004 WL 1527687,
at *3-*4 (denying motion to compel partial settlement agreement when the parties’
representatives failed to achieve a “meeting of the minds” as to a material term).
Here, the undisputed record indicates that the parties never achieved a meeting of
the minds on the issue of whether J.U. was to be covered by the contemplated settlement
10

and release agreement. Indeed, the parties concede that throughout their settlement
negotiations they never discussed the issue of including a release of J.U.’s claims in the
agreement, presumably under conflicting impressions as to whether J.U. was a party to the
lawsuit and, therefore, necessarily covered by any release. (Br. in Opp’n 5; Reply Br. 2.) As
such, given the record presented, the Court concludes that the parties failed to achieve a
meeting of the minds as to material terms of the agreement, which precludes its
enforcement. See Riviello, 2013 WL 1348259, at *3. Moreover, the Court further finds that
Plaintiffs’ unilaterally revised agreement attached to the present Motion (Ex. C, Doc. 19),
which Plaintiffs seek to enforce, is, at best, a counteroffer to Defendant’s proposed
Settlement Agreement and Release (Ex. E, Doc. 23), which Defendant clearly has not
accepted. See O’Keefe, 2004 WL 1527687, at *3-*4.
Accordingly, the Court finds that there is no enforceable settlement agreement in
place. Plaintiffs’ Motion to Enforce will therefore be denied.
IV. Conclusion
For the above stated reasons, Plaintiffs’ Motion to Enforce (Doc. 19) will be denied.6

An appropriate order follows.

July 19, 2017
Date

6

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

Defendant’s request for sanctions, raised in its Brief in Opposition, will also be
denied.
11