Greer v. Nissan North America, Inc.

Filing 34

MEMORANDUM OPINION. Signed by District Judge Thomas T. Cullen on 1/7/2025. (ck)

1/7/2025
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
STACI NAOMI GREER,
Plaintiff,
v.
NISSAN NORTH AMERICA, INC.,
Defendant.

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Civil Action No. 7:23-cv-00311
MEMORANDUM OPINION
By:

Hon. Thomas T. Cullen
United States District Judge

This case is before the court on Plaintiff Staci Naomi Greer’s (“Greer”) motion to
compel fulfillment of the settlement agreement (ECF No. 17), which the court referred to the
Honorable C. Kailani Memmer, United States Magistrate Judge, for proposed findings of fact
and a recommended disposition. Judge Memmer filed a report and recommendation (“R&R”)
on November 26, 2024, recommending that this court deny Greer’s motion to compel
fulfillment of the settlement agreement. (R&R [ECF No. 31].) Greer filed objections to the
R&R, to which Defendant Nissan North America, Inc. (“Nissan”) responded, making this
matter ripe for the court’s consideration. For the reasons discussed below, the court will
overrule Greer’s objections, modify the R&R in part and adopt it as modified, and deny
Greer’s motion.
I.

BACKGROUND

On May 25, 2023, Greer filed suit against Nissan under Virginia’s “Lemon Law” 1
statute, seeking to compel Nissan to repurchase her defective 2022 Nissan Frontier pickup

1 Virginia’s “Lemon Law” is the Virginia Motor Vehicle Warranty Enforcement Act. See Va. Conde Ann.

§§ 59.1-207.9–59.1-207.16:1.

truck. (Compl. [ECF No.1].) The court referred this case to Judge Memmer for mediation,
which was scheduled to take place on March 8, 2024. (ECF Nos. 12–13.) But the parties
notified Judge Memmer before mediation that they had reached a settlement on their own.
(ECF No. 15.) Greer and Nissan signed the settlement agreement (the “Agreement”) on
March 25, 2024. (Suppl. Br. Supp. Mot. Compel (hereinafter “Suppl. Br.”), Ex. 1 [ECF No.
28].)
The Agreement provides that Greer would return the vehicle to “an authorized
dealership designated by Nissan,” whereafter Nissan would pay her an agreed-upon sum of
money. (Suppl. Br., Ex 1 ¶ 2.) The Agreement also provides for Nissan’s payment of Greer’s
attorney’s fees under Virginia Code § 59.1-207.14 and designates Virginia law as governing the
Agreement. (See id. ¶¶ 2, 8.) The Agreement does not contain a deadline for completion of the
repurchase. (See generally id.)
On May 8, 2024, 44 days after signing the Agreement, Greer moved to compel
fulfillment of the Agreement and for sanctions. (See Mot. Compel [ECF No. 17].) Greer argued
that a “commercially reasonable time” had passed, but Nissan had not completed its
obligations under the Agreement. (Id. at 1.) The motion requested (1) an order for immediate
fulfillment of the Agreement, (2) sanctions (specifically a $5,000 sanction and an additional
$500 sanction every day that the settlement agreement was not fulfilled), and (3) attorney’s
fees and costs. (Id. at 2.) The motion was referred to Judge Memmer for proposed findings of
fact and a recommended disposition. See 28 U.S.C. § 636(b)(3).
In its June 20, 2024 opposition brief, Nissan represented that its third-party agent
would arrange to pick up Greer’s vehicle within two weeks and that it would send Greer’s
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counsel a check for attorney’s fees—as set forth in the Agreement—within one week. (Br.
Opp’n Mot. Compel at 1 [ECF No. 21].) Greer’s counsel received a check for attorney’s fees
on July 9, Greer surrendered her vehicle to Nissan on July 16, and Greer’s counsel received a
check for the repurchase of the vehicle on July 22. (Suppl. Br. at 2.) July 22 was 119 days after
the Agreement was signed, and the repurchase check was $1,550.01 short of the agreed-upon
settlement payment. (Id.)
Judge Memmer held a hearing on the motion to compel on September 24. (ECF No.
25.) At that hearing, Greer’s counsel alerted Nissan to the fact that the July 22 check had been
$1,550.01 short for the first time. (R&R at 3.) At the end of the hearing, Judge Memmer
ordered Nissan to pay the remaining settlement sum within 10 days. (Id.) She also ordered the
parties to file supplemental briefs addressing the enforceability of the Agreement by October
4 if they did not resolve all outstanding issues by then. (Id.) Greer’s counsel received the
$1,550.01 check on September 27, 3 days after the hearing. (Suppl Br. at 2.)
The parties did not reach a resolution and submitted the requested supplemental
briefing. (ECF Nos. 28–30.) They agreed that the Agreement is enforceable and that the court
can infer a “reasonable time” for performance in lieu of the missing term, but they disagreed
as to the amount of time that is “reasonable” under these circumstances. (Suppl. Br. at 3;
Suppl. Br. Opp’n Mot. Compel (hereinafter “Suppl. Opp’n Br.”) at 2–3 [ECF No. 29].) Greer’s
brief also asserts that she seeks a sanction of “three times the gross value of the settlement,”
as contemplated under Virginia Code § 59.1-207.15, and attorney’s costs and fees. Nissan
asserts that any sanction is improper because Nissan substantially performed under the
Agreement within a reasonable time and did not act in bad faith. (Suppl. Opp’n Br. at 2–3.)
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Judge Memmer issued an R&R on November 26 recommending that the court deny
the motion in its entirety. (R&R at 9.) Greer filed objections to the R&R on December 9 (ECF
No. 32) and Nissan responded to Greer’s objections on December 12 (ECF No. 33). The
objections are now ripe for the court’s consideration.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 72(b) provides that, “[w]ithin 14 days after being served
with a copy of the recommended disposition, a party may serve and file specific written
objections to the proposed findings and recommendations.” The objection requirement set
forth in Rule 72(b) is designed to “train[] the attention of both the district court and the court
of appeals upon only those issues that remain in dispute after the magistrate judge has made
findings and recommendations.” United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007)
(citing Thomas v. Arn, 474 U.S. 140, 147–48 (1985)). An objecting party must do so “with
sufficient specificity so as reasonably to alert the district court of the true ground for the
objection.” Id. at 622. The district court must determine de novo any portion of the magistrate
judge’s report and recommendation to which a proper objection has been made. “The district
judge may accept, reject, or modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also 28
U.S.C. § 636(b)(1).
III.

GREER’S OBJECTIONS

Greer made 9 objections to the R&R. Greer objects that (1) there is no evidentiary
basis for what she characterizes as a factual finding in the R&R that Nissan’s third-party agent

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caused the delay in consummating the Agreement2 (Objs. to R&R at 2 [ECF No. 32]); (2) the
R&R improperly “assum[ed] without deciding that time for performance is not material to the
parties’ settlement agreement” (id. at 4); (3) the R&R incorrectly found that an evidentiary
hearing is not required (id. at 8); (4) the R&R analyzed the motion under a breach of contract
theory instead of the court’s “inherent equity power” (id. at 9); (5) the R&R erred in declining
to read a provision into the Agreement that the parties did not include or negotiate themselves
(id. at 10); (6) the R&R should have applied Virginia Code § 59.1-207.15 as a measure of what
constitutes a “reasonable time” (id. at 11); (7) the R&R erroneously concluded that her return
of the vehicle is a condition precedent to Nissan’s payment of the settlement sum (id. at 12–
13); and (9) the R&R improperly asserted that bad faith or abuse cannot justify imposing
sanctions in this case (id. at 13).
Preliminary, the portion of Greer’s motion seeking to compel fulfillment of the
Agreement is moot because Nissan has now fulfilled its obligations under the Agreement in
their entirety. Greer’s October 15 Supplemental Brief tacitly acknowledged that the Agreement
had been fulfilled when it sought only sanctions, not an order mandating prompt
consummation of the Agreement. (Suppl. Br. at 11.) The R&R also indicated as much in
footnote 8, but diligently conducted “a more fulsome analysis” anyway. (R&R at 6 n.8.) To
the extent that there was any remaining doubt, Greer’s objections confirm that the Agreement
is fulfilled, no damages are being sought under the Agreement itself, and only the question of
sanctions remains a live issue. (See Objs. to R&R at 9–10 (explaining that Greer has “never
asserted [that] the Settlement Agreement contained language to allow her damages” but that

2 Objection 8 repeats this objection, so the court will not discuss Objection 8 separately.

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the court’s “inherent equity power . . . allows for and calls for sanctions”).) The court will
therefore modify the R&R to the extent that it does not expressly hold that the motion’s
request for an order compelling fulfillment of the Agreement is moot.
Consequently, the court will consider Greer’s objections through the lens of
determining whether Nissan’s conduct evidences “extraordinary circumstances where bad
faith or abuse” warrants imposing sanctions. Hensley v. Alcon Lab’ys, 277 F.3d 535, 543 (4th
Cir. 2002). The imposition of sanctions under its inherent authority is soundly within the
court’s discretion. See Harvey v. Cable News Network, Inc., 48 F.4th 257, 276 (4th Cir. 2022).
Greer’s objections all fail because Nissan’s purported delay was not unreasonable or,
at the very least, not so unreasonable as to warrant sanctions. In her Supplemental Brief, Greer
asserts that she received the final settlement check on October 7, which she states is 215 days
after the settlement date. (Suppl. Br. at 2.) She then contends, throughout her Supplemental
Brief and Objections to the R&R, that 215 days is commercially unreasonable against the
backdrop of the public policy created by Virginia’s Lemon Law provisions.
Greer’s argument is flawed for multiple reasons, beginning with her calculation of how
many days it took for Nissan to fulfill its obligations under the Agreement. First, 215 days
after the settlement date of March 25, 2024, is October 26, 2024, not October 7. Second, Greer
states that the final settlement check “was received by undersigned counsel on September 27,
2024, but it was payable to undersigned counsel, not Mr. and Mrs. Greer. The check was
deposited in the Client Trust Account and disbursed to the Greers on October 7, 2024.” (Id.)
The 10 days that it took Greer’s counsel to turn the funds over to Greer should not be
attributed to Nissan in determining whether Nissan’s delay was unreasonable. In addition,
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from the time that Greer’s counsel received the first settlement check on July 22, 2024, until
the hearing in front of Judge Memmer on September 24, 2024, Greer’s counsel was aware that
the check was short $1,550.01. (Id.) But counsel did not inform Nissan until the hearing and
therefore did not give Nissan the opportunity to remedy the defect until the hearing. Once
Nissan was made aware, Nissan sent a check within 3 days. Therefore, the delay from July 22
to September 24 also cannot be fairly attributed to Nissan. Excluding the periods of delay
attributable to Greer’s counsel, Nissan made a good-faith effort to fulfill its obligations under
the Agreement 122 days after the Agreement was executed, not 215 days.
As the R&R thoroughly explains, the Agreement does not contain an express deadline
for Nissan’s fulfillment of its obligations under the Agreement. (See generally R&R.) That is not
dispositive here because Greer seeks relief under this court’s inherent authority to sanction
parties for misconduct, not under any provision of the Agreement. (See Objs. to R&R at 9–
10.) But Nissan’s legal obligations, which include its contractual obligations under the
Agreement, nonetheless inform the propriety of sanctions and guide the court in assessing
whether Nissan’s actions were in “bad faith.” See, e.g., Six v. Generations Fed. Credit Union, 891
F.3d 508, 519 (4th Cir. 2018) (“Courts are empowered to fashion an appropriate sanction for
conduct which abuses the judicial process, such as an order instructing a party that has acted
in bad faith to reimburse legal fees and costs incurred by the other side.” (cleaned up)). The
Agreement itself does not impose any deadline. And, as the R&R explains, Virginia Code
§ 59.1-207.15, which imposes a 40-day deadline for Lemon Law cases resolved through a car
manufacturer’s informal dispute resolution procedure, does not apply because the parties did

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not resort to any such procedure here. (See R&R at 7; see also Obj. to R&R at 11 (“[T]his Code
section does not verbatim, or technically, apply to this case.”).)
Greer nonetheless argues, in effect, that § 59.1-207.15 creates a public policy that all
settlements in Lemon Law cases must be consummated within 40 days, and that significant
departures from that 40-day deadline are so unreasonable as to indicate bad faith and warrant
sanctions. While § 59.1-207.15 is not irrelevant to the propriety of sanctions, the court will not
sanction Nissan solely for non-compliance with a deadline that Greer concedes does not apply.
And the court cannot agree that failure to adhere to that inapplicable deadline evidences bad
faith on the part of Nissan.
Section 59.1-207.15 is one factor that the court looks to in determining the
reasonableness of Nissan’s conduct, but the parties’ expectations under the Agreement are
another. It does not escape the court that Greer could have—but didn’t—negotiate for an
express timeliness provision to be included in the Agreement. Without such a provision,
Nissan did not expect to be held legally accountable to an explicit deadline. Under these
circumstances, the court cannot conclude—based on the common sense and practical
experience that Greer’s briefing repeatedly urges the court to look to, as well as the reasoning
meticulously explained in the R&R—that Nissan’s conduct was so unreasonable as to indicate
bad faith or warrant sanctions. (See Suppl. Br. at 3; Objs. to R&R at 10; see generally R&R.) To
the contrary, under the circumstances, the court considers 122 days to be a reasonable
timeframe within which to consummate a settlement agreement when the parties did not
include an express deadline in the agreement.

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That brings the court to Greer’s specific objections, which the court takes somewhat
out of order because several objections are closely related. Objection 1 contends that there is
no evidentiary basis for what Greer characterizes as a factual finding in the R&R that Nissan’s
third-party agent caused the delay in consummating the Agreement, and that Nissan is
therefore not responsible for the delay. (Objs. to R&R at 2.) Regardless of what the cause of
the purported delay was, taking 122 days to consummate a settlement agreement is not so
unreasonable as to warrant judicial intervention or the imposition of sanctions in the absence
of an express deadline contained in the Agreement. Further, it appears to the court that this
was merely a passing reference, not an express factual finding, and that the R&R acknowledges
that the third-party agent’s conduct is attributable to Nissan. (See R&R at 9.) The court has
little doubt that the R&R fully attributed any purported delay to Nissan in determining whether
that delay was reasonable, and the court agrees with the R&R’s ultimate conclusion, so it will
not disturb the R&R’s reasoning on those grounds. For the same reason, the court rejects
Objection 3’s contention that Judge Memmer should have held an evidentiary hearing before
recommending that the motion be denied (Objs. to R&R at 8), and Objection 9 to the R&R’s
ultimate conclusion that bad faith or abuse are not present to justify imposing sanctions in this
case (id. at 13).
Objection 2 challenges the R&R’s assumption “that time for performance is not
material to the parties’ settlement agreement.” (Id. at 4.) The only purpose of that assumption
was to establish that the Agreement’s material terms are ascertainable, and that the Agreement
is therefore enforceable. (See R&R at 5.) Since Greer expressly conceded in her Supplemental
Brief that the Agreement is enforceable (see Suppl. Br. at 3), she must necessarily concede that
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time for performance is not material. That’s because, under Virginia law, a contract must
contain all material terms to be enforceable. See Dean v. Morris, 756 S.E. 2d 430, 433 (Va. 2014);
Hayden v. Hayden, 53 Va. Cir. 9, *4–5 (2000) (explaining that a binding contract must be
complete meaning that it “embraces all the material terms” and holding that the agreement in
question was an incomplete contract because it was “missing material terms”). Therefore, the
court overrules Objection 2.
Objection 4 criticizes the R&R for analyzing the motion under a breach of contract
theory instead of the court’s “inherent equity power.” (Objs. to R&R at 9). But the parties’
contractual obligations are an essential starting point in determining the reasonableness of
their actions. Though deciding whether to impose sanctions does not end with the contractual
analysis, it does start there. And the R&R additionally found that “[t]his is not one of the
‘extraordinary circumstances where bad faith or abuse’ can justify sanctions or shifting of
attorney’s fees.” (R&R at 9 (quoting Hensley, 277 F.3d at 543).) The court therefore adopts the
R&R’s breach-of-contract analysis as the first step of its evaluation of whether sanctions
should be imposed and overrules Objection 4.
Objection 5 faults the R&R for declining to read a provision into the Agreement that
the parties did not include or negotiate themselves. (Objs. to R&R at 10.) The thrust of this
objection is Greer’s dissatisfaction with the fact that the Agreement took more than 40 days
to consummate and her desire to punish Nissan for failing to comply with this non-existent
deadline. As the court has explained, the 122 days that Nissan took to fulfill its obligations
under the Agreement do not rise to the level of unreasonableness in the absence of an express
deadline, and the R&R correctly declined to hold Nissan to a non-existent 40-day deadline.
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Objection 5 also takes issue with the R&R’s suggestion that the onus was on Greer’s
counsel to incorporate a timeliness provision into the Agreement. (Id.) Relatedly, Greer seeks
to shift that responsibility to the court in Objection 2, when she asserts that “[p]resumably the
General Assembly trusts the Judicial Branch to appropriately manage the cases before it” and
incorporate § 59.1-207.15’s 40-day deadline in “settlements of cases resolved by civil action.”
(Id. at 5.) But this is not a case in which the court ordered payment and failed to set a deadline.
Rather, the parties negotiated the controlling agreement and its material terms. During those
negotiations, it was Greer—not Nissan and not the court—that failed to include a deadline.
Greer’s counsel is clearly familiar with the relevant law and policy considerations in this area
based on his representation of “[p]laintiffs in Lemon Law cases for over 35 years” and current
filing rate of “50–150 such cases per year.” (Id. at 8 n.1.) If timeliness is of such paramount
importance to his client, he should have ensured that a timeliness provision was included in
the Agreement. Had he done so, the court could have used its judicial power to hold Nissan
to that provision or awarded damages for Nissan failure to do so. But in the absence of such
a provision, the court can only intercede if Nissan’s purported delay is so unreasonable as to
be indicative of “extraordinary circumstances where bad faith or abuse” warrants imposing
sanctions. Hensley, 277 F.3d at 543. That is not the case here.
Objection 6 faults the R&R for declining to apply Virginia Code § 59.1-207.15 as a
measure of what constitutes a “reasonable time.” (Objs. to R&R at 11.) Because the very next
sentence of the objection clarifies that “counsel agrees [that] this Code section does not
verbatim, or technically, apply to this case,” (id.), the court construes this objection as another
basis on which Greer believes that the R&R erroneously concluded that Nissan’s purported
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delay was not unreasonable. Because that conclusion was not erroneous, the court likewise
rejects Objection 6.
Finally, in Objection 7, Greer objects to the R&R’s assertion that Greer’s return of the
vehicle is a condition precedent to Nissan’s payment of the settlement sum. (Id. at 12–13.) The
Agreement unambiguously states that “prior to the payment of the above referenced sum,” Greer
“shall return the vehicle to an authorized dealership designated by Nissan.” (Suppl. Br., Ex. 1
¶ 2.) Requiring that Greer return the vehicle before Nissan makes its payment is a textbook
example of a condition precedent. See Morotock Ins. Co. v. Fostoria Novelty Co., 26 S.E. 850, 851
(Va. 1897) (“A condition precedent calls for the performance of some act, or the happening
of some event after the terms of the contract have been agreed upon . . . .”). It is also true, as
Greer states in her objection, that Nissan had to designate the dealership at which Greer would
return her vehicle before she could do so. (See Objs. to R&R at 12.) But the fact that there is
a condition precedent to the condition precedent does not change the fact that Greer’s return
of the vehicle is a condition precedent to Nissan’s payment. Therefore, the court overrules
Objection 7.
In sum, the court overrules Greer’s objections, modifies the R&R to the extent that
the court holds that the motion’s request for an order compelling fulfillment of the Agreement
is moot, adopts the R&R in all other respects, and denies Greer’s motion.
IV.

CONCLUSION

For the foregoing reasons, the court overrules Greer’s objections, adopts the R&R as
modified, and denies Greer’s motion.

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The Clerk is directed to forward a copy of this Memorandum Opinion and the
accompanying Order to all counsel of record.
ENTERED this 7th day of January, 2025.

/s/ Thomas T. Cullen________________
HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE

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