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Mendoza v. Preco, Inc.

United States District Court, D. Kansas

December 20, 2018

DAVID J. MENDOZA, Plaintiff,
v.
PRECO, INC., Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This 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 6.1.

         Under 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, 2006)).[1]

         So, 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 question.

         I. Facts

         Mr. 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[2] from defendant's Memorandum in Support of Motion to Enforce Settlement (Doc. 37) are as follows:

         On May 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.

         Mr. 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.

         Mr. Sheffield continued:

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 with prejudice.

         On June 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 obligation.

         On June 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 G.”

         On June 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 ...


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