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Norton v. Correctional Medical Care

October 18, 2010


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiff commenced this action alleging a collective action claim under the Fair Labor Standards Act for unpaid overtime on behalf of herself and all others similarly situated; individual claims of discrimination under the federal and New York state anti-discrimination laws; and a claimed violation of the Consolidated Omnibus Budget Reconciliation Act ("COBRA"). See Am. Compl. [dkt. # 15]. Plaintiff now moves for an order enforcing the terms of a settlement agreement circulated between counsel. See Mot. [dkt. # 24]. Defendants have opposed the motion. See Opp. to Mot. [dkt. # 26]. For the reasons that follow, the motion is denied.


There is little dispute regarding the material facts surrounding the purported settlement of this action. See Joseph Aff., Ex. A (Agreed Statement of Facts). On May 28, 2010, "the parties reached a settlement in principle of [the] monetary component to be paid to plaintiff by defendant." Id. ¶ 1. It was agreed by the attorneys that defense counsel would draft the settlement agreement. Id. ¶ 2. On June 3, defense counsel sent an e-mail to plaintiff's counsel stating: "I am finalizing the agreement and my client needs to look at [it]. I am aiming for early next week." Id. ¶ 3. On June 7, defense counsel sent another e-mail indicating that she was working on getting the draft agreement to plaintiff's counsel as soon as she could. Id. ¶ 4.

On June 9, plaintiff's counsel sent an e-mail stating: "I didn't want to pressure you without need. But things have changed a little and I need that agreement as soon as possible. Can you get it to me today?" Id. ¶ 5. Defense counsel responded: "I have not gotten all the comments back from my client, I do not anticipate major changes, but I can send you what I have with the caveat that there may be a few changes. OK?" Id. ¶ 6. Plaintiff responded back: "OK, good idea." Id. ¶ 7. Defense counsel then sent plaintiff's counsel a Release and Settlement Agreement stamped with the word: "DRAFT." Id. ¶ 8.

After reviewing the draft settlement agreement, plaintiff's counsel sent defense counsel e-mails on June 9 indicating that he wanted included in the agreement mutual non-disparagement, mutual remedy for breach, and mutual confidentiality clauses. Id. ¶¶ 9-10. Plaintiff's counsel also asked whether it was necessary for Defendant to issue Plaintiff a tax form 1099 for attorney's fees to be paid under the settlement. Id. ¶ 9. On June 10, defense counsel wrote to the Court indicating that the parties had "an agreement in principle to resolve [the] matter" and that it would take "approximately four (4) weeks to finalize [the] settlement agreement." Id. ¶ 11.

Between June 14 and June 23, plaintiff's counsel e-mailed defense counsel several times inquiring about the status of the agreement and Plaintiff's proposals for additions to the agreement. Id. ¶ 13. Defense counsel responded to the e-mails indicating, in substance, that she was still attempting to speak with her client regarding the terms of the agreement but had not been able to do so. Id. ¶ 14. On June 23, plaintiff's counsel had his client sign the draft agreement that was sent on June 9, and then sent the agreement to defense counsel with the following text:

In an abundance of caution I am sending you [the] agreement signed by my client. We therefore have agreed to all terms. As she has seven days to revoke, I believe we have time and reason to further discuss the changes asked for. I am sure you understand.

Id. ¶ 15.

Defense counsel immediately responded:

Why [sic] I do understand your client's concerns, we have not agreed on all terms stated in your email below. I specifically stated to you, and wrote in my email of June 9, 2010, that there may be changes from my client, this is why I specifically wrote DRAFT on the agreement. Moreover, it is not signed by my client.

I told you earlier today that I will be speaking with my client tomorrow (we were supposed to speak today and he had family issues to attend to). I also told you that I will be in touch with you tomorrow, and I will.

Id. ΒΆ 16. Plaintiff responded: "Thanks. We[,] I believe[,] are all working towards the same goal and ...

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