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Fork Country, LLC v. Baker Publications

June 26, 2006

FORK COUNTRY, LLC AND MULFORD PUBLISHING, LLC, PLAINTIFFS,
v.
BAKER PUBLICATIONS, INC., WILLIAM R. BAKER AND LISA GLUCK, DEFENDANTS.



The opinion of the court was delivered by: E. Thomas Boyle, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

Plaintiffs North Fork Country, LLC ("North Fork") and Mulford Publishing, LLC ("Mulford") filed the complaint in this action in September 2003, alleging, inter alia, copyright infringement, unfair competition, and breach of contract claims against defendants William R. Baker ("Baker"), Lisa Gluck "(Gluck")*fn1 and Baker Publications, Inc. ("Baker Publications"). In brief, at the time of the filing of the complaint, plaintiffs were publishers of a monthly periodical entitled "North Fork Country." From February 2001 to March 2003, defendant Baker was an employee of plaintiff corporation North Fork. In their complaint, plaintiffs allege that beginning in March 2003, Baker and Baker Publications began publishing a monthly periodical titledá"North Fork Magazine," edited by defendant Gluck. Plaintiffs' causes of action stem from defendants' publication of this magazine.

On October 13, 2004, a settlement conference with the undersigned took place, at which counsel for both sides were present, along with Nancy and Robert Hungerford (principals of plaintiff corporation North Fork) and William Baker (principal of defendant corporation Baker Publications). Theáconference resulted in a settlement agreement which was recited on the record in open court. The relevant portion of the record is as follows:

The Court: . . . [T]his matter was in a settlement conference this morning. Would someone like to put the agreement on the record? And that would be an agreement in principle subject to the execution of more formal documents.

Plaintiffs' Counsel: Thank you, your Honor. I would like to thank you for your help in facilitating this settlement. It's the parties' agreement in principle and understanding that the matter will be settled by payment from the Defendants in the amount of $5,000 on or before December 15. That the parties, all parties, will jointly cooperate in collection efforts for the accounts receivable due to the North Fork Country Publication. That from those collection efforts, the Plaintiff will receive the first net $15,000, that in the event -- sorry, that subsequent to that payment, anything net received in the collection effort will be split between the parties. That in the event, for whatever reason, the accounts receivable don't manifest or there is no ultimate collection, nonetheless, Plaintiff will receiveáa guaranteed additional $5,000 by the following year, December 15, 2005. That upon payment to Defendants of the money as outlined in this settlement, all outstanding shares of the LLC will be turned over to Mr. Baker. The parties will, within the next week to ten (10) days, exchange lists. Each party will come up with four or five names of the local East End attorney. Hopefully, we'll have some common names on each list. And the Plaintiffs will also, within the same period of time, get the Defendants up to speed on where the accounts receivable currently stand. And I believe that is the agreement in principle. Am I missing anything, Mr. Goubeaud?

Defendants' Counsel: I don't believe so, Judge; I believe that is the agreement that we have arrived at in principle with your Honor's assistance.

The Court: Very good. I just want to clarify one point, and that is the first $15,000 net collectible will go to the Plaintiffs. . . The first $15,000 goes to the Plaintiffs. $10,000 -- and we're talking about net figures -- $10,000 will be out of receivables, and they would get the first $10,000 in receivables. The next $5,000 is payment of the second payment due from the Defendantá[sic] of $5,000, which is due no later than next summer. And you can pick a date next summer--

Defendants' Counsel: I believe he had indicated December 15 of next year, Your Honor; that was the date.

The Court: Now, just for clarification and to avoid any problem, that would mean that the next $10,000 in collectibles would go entirely to the Defendant [sic] because you're sharing the pot as far as the receivables; that's the concept here. And then after that's evened off, then it would be shared 50/50 with regard to the balance of anything over $20,000. Now you'd like an opportunity to put this in writing; tell me how you'd like to proceed?

Plaintiffs' Counsel: Yes, Your Honor, we'll-- the Plaintiff's [sic] will prepare a stipulation discontinuing this action under those terms, but with the Court retaining jurisdiction to enforce the settlement.

(Transcript of Settlement Conference before Magistrate Judge E. Thomas Boyle ("Transcript"), dated October 13, 2004, at 3-6.)

To date, a written settlement agreement or a stipulation of discontinuance has not been filed. In May, 2006, plaintiffs filed the within motion to compel enforcement of the oral settlement. Plaintiffs state in support of the motion that they had submitted a written stipulation of settlement to defendants' counsel in January 2005, and, as required by the terms of the oral settlement, provided the defendants with an updated accounts receivable statement. (Nancy Hungerford Affidavit in Support of Motion to Enforce Settlement Agreement ("Pls.' Aff.") P12; see also Letter from Paul K. Siepmann to Joseph G. Goubeaud, Jr., dated January 27, 2005, annexed to Pls.' Aff. as Exh. B, stating "A review of my file indicates that I haven't had any response from you regarding either the draft settlement stipulation faxed to you on January 11, 2004 or the accounts receivable spread sheet mailed to you on January 12, 2005.".) Defendants did not respond to letters from plaintiffs' counsel, dated January 27, 2005 and February 16, 2005, referring to the draft settlement stipulation and accounts receivable spreadsheet provided by plaintiffs. (Pls.' Aff. P14; see also Pls.' Aff. Exh B.) Defendants' counsel also repeatedly ignored phone messages from plaintiffs' counsel. (Paul Siepmann Reply Affidavit ("Pls.' Reply Aff.") P8.)

In his affidavit in opposition, defendants' counsel JosepháG. Goubeaud, Jr. ("Goubeaud") does not deny plaintiffs' statement of the relevant events herein. Goubead acknowledges that the terms of the settlement were recorded in open court on October 13, 2004, and that he received the proposed settlement stipulation and a list of accounts receivable from plaintiffs, in accordance with the terms of the settlement. (Joseph G. Goubead, Jr. Affidavit in Opposition to Motion ("Defs.' Aff. in Opp'n") P1, P5.) Defendants do not argue that the settlement agreement made on the record was conditioned upon the execution of more formal documents. Rather, defendants' counsel acknowledges that a settlement agreement was made, but apparently now takes the position that the settlement be set aside and the defendant be allowed to make ...


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