Jackson v. EK Real Estate Services of NY, LLC et al

Filing 41

MEMORANDUM AND ORDER entered : GRANTING #40 Joint MOTION to Withdraw #24 Memorandum and Opinion for the limited purpose of facilitating settlement.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VANESSA GARRETT JACKSON,
Plaintiff,
v.
EK REAL ESTATE SERVS. OF NY, LLC,
ET AL.,
Defendants.

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April 27, 2021
Nathan Ochsner, Clerk

CIVIL ACTION NO. H-20-3867

MEMORANDUM AND ORDER
The parties have moved to vacate the court’s March 26, 2021, Memorandum and Opinion
denying EK Real Estate’s motions to compel arbitration and to dismiss or stay this case. (Docket
Entry Nos. 24, 40). For the reasons set out below, the court grants the request and vacates its
Memorandum and Opinion for the limited purpose of facilitating settlement.
Vacatur is an “extraordinary remedy,” and the determination of whether to vacate is “an
equitable one.” U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership, 513 U.S. 26, 29 (1994).
When the parties seek to vacate an opinion issued before judgment is entered, the court considers
several factors, including: “[a] the parties’ desire to avoid any potential preclusive effect; [b] the
public interest in the orderly operation of the federal judicial system; [c] the court’s resources
that will be expended if the case continues; . . . [d] the parties’ interest in conserving their
resources,” Modern Grp. Ltd. v. Pinnacle Companies, Inc., No. 1:12-CV-00043, 2013
WL 12139156, at *1 (E.D. Tex. Aug. 2, 2013), Cisco Sys., Inc. v. Telcordia Techs., Inc., 590
F. Supp. 2d 828, 830 (E.D. Tex. 2008); and “[e] whether the parties have caused mootness by
voluntary action,” Ohio Willow Wood Co. v. Thermo-Ply, Inc., 769 F. Supp. 2d 1065, 1068 (E.D.

Tex. 2011). When a settlement results from mediation, the court may also consider: “[f] the
stage of proceedings at which the judgment in question occurred; [g] the standard of review that
will be applied by the Circuit Court if the case is not vacated; and [h] . . . the complexity of the
matter, if that is likely to increase the chance of reversal.” Ohio Willow Wood, 769 F. Supp. 2d
at 1068.
The court concludes that the factors weigh in favor of vacatur.

Vacating the

Memorandum and Opinion to facilitate settlement will save the court and the parties significant
resources. The court has so far addressed one substantive motion. (Docket Entry Nos. 11, 24).
The parties finished filing their amended pleadings less than two weeks ago. (Docket Entry
Nos. 25, 30, 32, 33). Discovery will close in three months, and trial is six months away.
(Docket Entry No. 22). Settlement at this stage will save substantial resources.
Although the public interest generally disfavors vacatur when appeal is available, U.S.
Bancorp, 513 U.S. at 27, the public interest here favors it. This case involves on an indigent
homeowner facing eviction and the loss of her homestead. Her counsel is pro bono. Allowing
the parties to resolve their dispute without the uncertainty of trial or appeal serves the public
interest. The court grants the motion to vacate the Memorandum and Opinion, without any
implication as to the validity of the reasoning or result.
The court’s March 26, 2021, Memorandum and Opinion, (Docket Entry No. 24), is
vacated for the limited purpose of facilitating settlement.
SIGNED on April 27, 2021, at Houston, Texas.

___________________________________
Lee H. Rosenthal
Chief United States District Judge
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