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Jerry D. Brown v. City of Bel Aire

January 31, 2013

JERRY D. BROWN,
PLAINTIFF,
v.
CITY OF BEL AIRE, KANSAS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Monti L. Belot United States District Judge

MEMORANDUM AND ORDER

This case comes before the court on defendants' motion to enforce settlement. (Doc. 39). The motion has been fully briefed and is ripe for decision. (Docs. 40, 45). The court held an evidentiary hearing on January 28. Defendants' motion is granted for the reasons herein.

I. Facts

Plaintiff filed a complaint against defendants on October 10, 2011, alleging civil rights violations of excessive force and unlawful arrest. Plaintiff alleged that he was injured in October 2010 after being placed under arrest by defendant Matthew McGuire, an officer for the Bel Aire police department. After his injury, plaintiff was prescribed Loratab, a pain medication, to take on an as needed basis. Plaintiff did not take the medication frequently because he did not like the effects. Plaintiff testified that on August 16 he had taken two Loratabs.

At the time the original complaint was filed, plaintiff was represented by Sara Loquist. On June 14, Loquist moved to withdraw as counsel. Loquist's motion was granted on July 18. On July 20, plaintiff participated in a telephone status conference with Magistrate Judge Waxse and defense counsel Jaime Blackwell. The magistrate informed plaintiff that he had two options in this case: plaintiff could proceed pro se or obtain new counsel prior to the next status conference to be held on August 17. In addition, the parties had to submit a revised planning report to the court by August 15.

Blackwell called plaintiff on August 14 and introduced herself as counsel for defendant. Blackwell asked plaintiff if he had retained counsel and plaintiff responded that he had not. Blackwell and plaintiff then had an extended discussion regarding plaintiff's attempts to retain counsel. Blackwell asked plaintiff how much money he would need to settle the case. Plaintiff informed Blackwell that he would need $100,000. Blackwell stated that she was not authorized to agree to that offer and that she would call him back the next day. Plaintiff sounded frustrated during the call but Blackwell did not believe that plaintiff was under the influence of medication. Plaintiff testified that he had recently been in contact with an attorney from Missouri and believed that he would be represented. The attorney declined to represent plaintiff and plaintiff had to travel to Springfield, Missouri the next day to retrieve his files. Plaintiff had contacted approximately thirty different attorneys seeking representation and was unsuccessful.

On August 15, Blackwell called plaintiff and again asked him if he had retained counsel. Plaintiff stated that he was in Missouri picking up his case files and was going to take them to another attorney. Blackwell again discussed plaintiff's options as stated by the magistrate judge during the status conference. Blackwell also told plaintiff that he could dismiss without prejudice and refile within six months when he obtained counsel. Plaintiff then asked Blackwell if she could make him an offer. Blackwell informed plaintiff that she would call him back after speaking to her client. At the time of the call, Blackwell did not believe plaintiff to be under the influence of medicine. Blackwell spoke with the insurance adjuster and received authorization to offer $5,000. Blackwell called plaintiff and left him a voice mail message.

Plaintiff did not return Blackwell's call on August 15. On August 16 at approximately 12:30 in the afternoon, Blackwell called plaintiff and again asked him if he had retained counsel. Plaintiff informed Blackwell that he had an appointment scheduled for later that day. Plaintiff stated that he would rather settle the case before an attorney was involved. Plaintiff asked Blackwell what the settlement offer was. Blackwell informed plaintiff that she was authorized to offer him $5,000 to settle the case. Plaintiff responded that his upcoming surgery was going to cost him $15,000 and that he would need at least $20,000 to settle. Blackwell said that she would call her client.

Blackwell spoke with the insurance adjuster and was authorized to offer plaintiff $10,000. Blackwell called plaintiff at approximately 1:00 p.m. to inform him of the offer. After a short moment of silence, plaintiff said, "I can do that, we can settle the case for $10,000." Plaintiff asked Blackwell when he could get the check. Blackwell told him that she would call the insurance company and get back to him. Plaintiff also asked Blackwell if he would owe anyone out of the settlement proceeds. Blackwell told plaintiff that she did not know the answer to that question and could not advise him on that matter. At approximately 2:00 p.m., Blackwell called plaintiff and told him that she would have the check by the next day at the latest. Blackwell stated that she would draft the settlement paperwork for him to sign and he could pick up the check on August 17. Plaintiff agreed. After the conversation concluded, Blackwell emailed the magistrate judge's chambers to inform the court of the settlement. Blackwell included plaintiff's email address in the email.

Blackwell received the check at 4:00 p.m. on August 16. At approximately 4:30 p.m., Blackwell received an email stating that plaintiff was represented by Cheryl Pilate who asked Blackwell to cease contact with plaintiff. Blackwell received a second email from Kurt Kerns later that evening which stated that he also represented plaintiff. Blackwell did not prepare the settlement agreement and did not contact plaintiff. Pilate entered her appearance in this case in September. Plaintiff did not contact Blackwell after the 16th. Plaintiff determined that the $10,000 was not enough money to pay for his needed surgery.

After plaintiff's counsel entered their appearance in this case, defendants filed a motion to enforce the settlement agreement. Plaintiff objects and contends that the parties did not enter into a binding agreement.

II. Analysis

The district court may "summarily enforce a settlement agreement" which was reached by the parties. United States v. Hardage, 982 F.2d 1491, 1496 (10th Cir. 1993). Because a settlement agreement is a contract, "[i]ssues involving the formation, construction and enforceability of a settlement agreement are resolved by applying state contract law." United States v. McCall, 235 F.3d 1211, 1215 (10th Cir. 2000). The existence of an agreement is a question of fact. Shamberg, ...


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