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Mendoza v. Preco, Inc.

United States District Court, D. Kansas

May 17, 2019

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

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This matter comes before the court on defendant Preco, Inc.'s Renewed Motion to Enforce Settlement Agreement (Doc. 46). Pro se plaintiff David J. Mendoza has not filed a Response, and the time for doing so has passed. See D. Kan. Rule 6.1.[1] Preco's motion requested an evidentiary hearing to present evidence on one aspect of its motion-i.e., on whether Mr. Mendoza conferred authority to his former counsel to settle his claims. The court conducted an evidentiary hearing on this issue on May 8, 2019. Preco's motion also requested that-if the court concluded the parties had entered an enforceable settlement agreement-the court enter a fee award against Mr. Mendoza. On review of Preco's papers and the facts in evidence, the court grants Preco's motion in part and denies it in part. The court holds the parties entered an enforceable settlement agreement on May 30, 2018, but the court declines to enter a fee award against Mr. Mendoza. The court explains the reasons for its decision, below.

         I. Facts

         The court bases the following findings of fact based on matters established by the filings on this motion, as well as evidence presented at the evidentiary hearing.

         A. Mr. Mendoza's Lawsuit and Preco's First Motion to Enforce Settlement (Doc. 36)

         Mr. Mendoza worked as a Shipping/Receiving clerk in Preco's office and warehouse in Lenexa, Kansas. In September 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. Doc. 1. Preco filed an Answer. Doc. 5. And, the parties began discovery, which included Preco taking Mr. Mendoza's deposition. See, e.g., Docs. 17, 21, & 25. Preco's motion asserts Mr. Mendoza admitted to committing perjury twice during his deposition on May 23, 2018. Doc. 25; Doc. 47 at 2-3 n.1. Preco's motion contends Mr. Mendoza did not disclose his wife's last name and address in response to Preco's interrogatories. Id. And, Preco alleges, Mr. Mendoza testified that he left a later job voluntarily when, in reality, Mr. Mendoza was fired from that position. Id.

         On May 29, 2018, Mr. Mendoza's counsel, Kirk Holman, left a voicemail for Preco's counsel, Robert Sheffield, with a request for a return phone call. Doc. 47-2 at 2. Mr. Sheffield returned Mr. Holman's phone call that day. Id. During that call, Mr. Holman said he believed dismissing Mr. Mendoza's case would be in everyone's best interest and asked Mr. Sheffield if Preco would agree to a dismissal of the case without prejudice. Id.

         Later that day, Mr. Sheffield sent Mr. Holman an email. Doc. 47-3 at 1-2. Mr. Sheffield's email indicated that dismissal without prejudice would not provide Preco with sufficient finality given the limitations period for some of Mr. Mendoza's claims and his ability to re-file if he so chose. Id. 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.

Id. On May 30, 2018, Mr. Holman replied in an email, “Well done, Robert. Please send over the Proposed Release.” Id. at 1.

         In June 2018, the parties exchanged draft settlement agreements. And, on July 2, 2018, Mr. Sheffield sent Mr. Holman a final agreement. Doc. 47-11 at 3. On July 9, 2018, Mr. Sheffield sent an email to Mr. Holman checking whether plaintiff had signed the agreement. Id. Mr. Holman responded the same day, “It's been sent to him for signature. We are both in trial this week. I am fine with filing the stipulation if you are fine doing so.” Id. at 2.

         Mr. Sheffield waited to respond until the following week, after Mr. Holman's trial had concluded. On July 17, 2018, Mr. Sheffield responded to Mr. Holman: “Thanks, Kirk. Have you received the signed agreement from Mr. Mendoza? In any event, I agree with you about getting the dismissal filed. It is attached here. You have my approval to file.” Id.

         Later in the day on July 17, 2018, Mr. Holman replied to Mr. Sheffield: “Sorry, Robert. Was in trial last week but learned Friday [i.e., July 13] that apparently, he now intends to sue me for malpractice and continue with the litigation against your client. I am going to file a Motion to Withdraw. We sent a courier out for him to sign and learned all of this.” Id. In context, it is evident that the “he” in Mr. Holman's July 17 email referred to Mr. Mendoza.

         Mr. Mendoza's attorneys-including Mr. Holman-withdrew from their representation shortly after defendant served its Motion to Enforce Settlement on July 27, 2018. See Doc. 38 (Motion to Withdraw); Doc. 39 (Order granting ...


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