Massi v. 198 Chelsea Corp.
Massi v. 198 Chelsea Corp.
Opinion of the Court
ORDER
This action, brought under the Americans with Disabilities Act'(ADA), is before the Court on consent pursuant to 28 U.S.C. § 636(c). On July 12, 2016, the parties informed the Court by letter (Dkt. No. 26) that they had reached a settlement in principle of all claims asserted herein. On July 13, 2016, the Court issued a 30-day dismissal order (Dkt. No. 27), dismissing the action without costs “and without prejudice to the right to reopen within thirty days of the date of this Order if the settlement has not been completed.” The July 13 Order further specified that “if the parties wish the Court to retain jurisdiction for the purpose of enforcing any settlement agreement, they must submit the settlement agreement to the Court within the same thirty-day period, to be ‘so ordered’ by the Court.”
After several delays and extensions— due in part to continuing settlement negotiations and in part to a change in counsel for defendant 198 Chelsea Corp.—the parties ( submitted a proposed Stipulation of Settlement and Order (Stipulation) through the Orders and Judgments Clerk, executed on October 24, 2016 by counsel
This is not the only ambiguous portion of the Stipulation. For example, Paragraph 1 provides that the Court shall retain jurisdiction for the purpose of interpreting or “carrying out” the terms of the settlement. And paragraph 17—discussed in more detail below—states that in the event of a breach by defendants they will remain liable for the payments owed under the Stipulation, together with plaintiffs attorney fees and collection costs. The last sentence of paragraph 1, however, provides that in the event of a breach by defendants the plaintiffs causes of action will be “revived,” suggesting that plaintiffs remedy will be to rescind the contract rather than to affirm and enforce it.
If the plaintiffs causes of action are “revived” pursuant to paragraph 1, they will presumably be revived as against both defendants, although only defendant Shigemitsu is required to provide any settlement consideration. Similarly, paragraph 17 states that if enforcement proceedings are required, “plaintiffs counsel” (but not, apparently, plaintiff himself) “shall be entitled to an automatic judgment against defendants” (plural) “for the total outstanding amount together with all attorneys’ fees, collection costs, and other expenses incurred in enforcing this agreement.”
Perhaps most troubling, paragraph 6 states that the parties “acknowledge that they have been afforded an opportunity to consider the terms and conditions” of the Stipulation, have “read and understand” those terms, and were “provided with the opportunity to consult with their respective counsel prior to their execution” of the document. However, the Stipulation is signed only by the parties’ counsel, not the parties themselves.
No judicially-supervised settlement conference was held in this action. The Court did not assist the parties in reaching their settlement and has not been asked to approve its terms. Having now reviewed the Stipulation and considered the likely difficulties associated with administration of those terms, the Court declines to retain jurisdiction for the purpose of settlement
Since no judicial approval is required to settle a non-class ADA action, the parties remain free to settle their case on whatever terms are satisfactory to them, so long as it is the parties’ own decision to do so and they are willing to forgo any assertion of continuing jurisdiction by this Court. See Hendrickson v. United States, 791 F.3d 354, 358 (2d Cir. 2015) (to retain ancillary jurisdiction for settlement enforcement purposes, a district court “must either (1) expressly retain jurisdiction over the settlement agreement, or (2) incorporate the terms of the settlement agreement in the order”) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). In order to give the parties time to consider their options, the Court will once again extend their deadline for finalizing their settlement documents or reopening the action.
IT IS HEREBY ORDERED that the parties may submit a stipulation of dismissal—or apply to reopen this action— within thirty days of the date of this Order, that is, on or before December 9, 2016. In the absence of timely action by the parties this matter will be DISMISSED without prejudice and without costs.
SO ORDERED.
. There is no mention, anywhere in the Stipulation, of any confession of judgment or other mechanism for imposing an "automatic” judgment.
Reference
- Full Case Name
- Carr MASSI v. 198 CHELSEA CORP., Shigemitsu New York, Inc.
- Cited By
- 1 case
- Status
- Published