United States District Court, D. Kansas
DAVID J. MENDOZA, Plaintiff,
PRECO, INC., Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter is before the court on defendant Preco, Inc.'s
Motion to Enforce Settlement. Doc. 36. Plaintiff David J.
Mendoza, proceeding pro se, has not filed a Response, and the
time for doing so has now passed. See D. Kan. Rule
the court's local rules, when a party fails to respond,
the motion ordinarily is viewed as an uncontested motion and
is granted. D. Kan. Rule 7.4(b). But, the failure to file a
response alone is an insufficient basis to enter judgment
against a party. Smith v. Via Christi & Assocs.,
No. 17-1270-JWB, 2018 WL 3008504, at *2 (D. Kan. June 15,
2018) (citing Reed v. Nellcor Puritan Bennett, 312
F.3d 1190, 1195 (10th Cir. 2002)). Instead, the court must
determine whether a moving party's submission presents a
legally sufficient basis to grant the motion. Id.
(citing Fields v. Corr. Corp. of Am., No. 04-6348,
2006 WL 991100, at *1 (10th Cir. Apr. 17,
although plaintiff did not respond, the court declines to
rule on defendant's motion because it cannot discern
whether plaintiff's counsel acted with actual authority
when he entered the settlement agreement with defendant. The
court thus directs defendant, if inclined, to coordinate with
the court to schedule an evidentiary hearing about this
Mendoza worked as a Shipping/Receiving clerk in Preco's
office and warehouse in Lenexa, Kansas. In 2017, Mr. Mendoza
filed a lawsuit against Preco, alleging civil rights
violations based on Preco's purported racial
discrimination, harassment, and retaliation during his
employment. The uncontested facts from defendant's
Memorandum in Support of Motion to Enforce Settlement (Doc.
37) are as follows:
29, 2018, plaintiff's counsel, Kirk Holman, left a voice
mail for Preco's counsel, Robert Sheffield with a request
for a return phone call. Mr. Sheffield returned Mr.
Holman's phone call that day. During that call, Mr.
Holman said he believed a dismissal of the case would be in
everyone's best interest and asked if Preco would agree
to a dismissal of the case without prejudice.
Sheffield sent Mr. Holman an email later in the day on May
29. This letter indicated that a dismissal without prejudice
would not provide Preco with sufficient finality given the
limitations period for some of plaintiff's claims and
plaintiff's ability to re-file if he so chose.
Therefore, I can confirm that Preco is willing to stipulate
to a dismissal with prejudice, each party to bear its own
costs. As part of the dismissal, Preco is willing to forgo
filing any motions for sanctions related to your client's
admitted perjury in exchange for a full waiver and release of
all claims by your client. In other words - let's set
this up for both parties to move on and put the case behind
them for good. We would be happy to draw up an agreement
reflecting these terms. Thanks, and please let me know.
Doc. 37-2 at 2-3. On May 30, 2018, plaintiff's counsel
accepted Preco's May 29 settlement offer: “Well
done, Robert. Please send over the Proposed Release.”
On June 5, 2018, Mr. Sheffield sent an email to Mr. Holman,
which included a draft Settlement Agreement and Release
(“Agreement”), and a stipulation of dismissal
12, 2018, Mr. Holman sent an email that contained revisions
to Preco's June 5 draft Agreement. His revisions proposed
edits to Paragraph A (Consideration) and also sought to make
the non-disparagement provision in Paragraph G a mutual
13, 2018, Mr. Sheffield responded to Mr. Holman, “Preco
agrees to your changes to Paragraph A, but cannot agree to
make non-disparagement mutual. So, we'll split the
difference. Attached is the agreement accepting your changes
to Paragraph A and restoring Preco's version of Paragraph
15, 2018, Mr. Sheffield inquired about the status of
plaintiff's signature of the Agreement. Mr. Holman
responded to Mr. Sheffield the same day, “Not sure I
can get him to agree to ...