United States District Court, D. Kansas
DAVID J. MENDOZA, Plaintiff,
PRECO, INC., Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
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
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.
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.
Mr. Mendoza's Lawsuit and Preco's First Motion to
Enforce Settlement (Doc. 36)
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.
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.
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
Id. On May 30, 2018, Mr. Holman replied in an email,
“Well done, Robert. Please send over the Proposed
Release.” Id. at 1.
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
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.”
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.
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 ...