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Pullman v. Alpha Media Publishing, Inc.

United States District Court, S.D. New York

September 10, 2014

ALPHA MEDIA PUBLISHING, INC., et al., Defendants.


PAUL A. CROTTY, District Judge.

Plaintiff Jaclinn Pullman brings this action against defendants Alpha Media Group Inc. and Alpha Media Publishing Inc. (collectively, "Alpha Media"), formerly known as Dennis Publishing Inc., Quadrangle Group ("Quadrangle"), Stephen Colvin, the former CEO of Dennis Publishing Inc., and Peter Ezersky, a former managing principal of Quadrangle, alleging common law fraud and violations of the New Jersey Consumer Fraud Act ("NJCFA"). She sought to pierce the corporate veil and to recover punitive damages. On March 28, 2013, this Court declined to pierce the corporate veil and dismissed the punitive damages claims against defendants Quadrangle and Alpha Media, and dismissed all claims against defendants Stephen Colvin and Peter Ezersky. (Dkt. No. 80.) On September 10, 2013, the parties orally agreed to a settlement in open court before Magistrate Judge Sarah Netbum. The parties cross-moved for enforcement of the oral settlement agreement. (Dkt. No. 153 & 179.) While each party interprets the terms of the oral settlement differently, Pullman maintains that the terms of agreement as stated in court are self-explanatory, so that the transcript of the settlement conference should be enforced verbatim without any subsequent written memorialization.

On March 14, 2014, Magistrate Judge Netburn issued a Report & Recommendation ("R&R") that the Court grant in part and deny in part the parties' respective motions, and she attached a proposed written settlement agreement. (Dkt. No. 208.) Magistrate Judge Netbum found that the parties' oral settlement agreement was enforceable. Interpreting the specific settlement terms, she found that: (1) the parties' mutual release included former employees of Quadrangle and Alpha Media, including Stephen Colvin in his official (but not his individual) capacity; (2) the mutual release was a specific release for all claims that were brought or could have been brought in connection with the action; and (3) the confidentiality agreement applied to both parties, and was limited to the settlement amount.

Both parties filed timely objections to the R&R. (Dkt. Nos. 214 & 216.) Plaintiff weighed in with 35 pages of objections in her initial brief and reply. She objects that the R&R "made numerous factual errors and improper legal conclusions, " (Pl.'s Objections at 2), and that the "terms [of Judge Netbum's Proposed Settlement Order] contain material changes to the settlement terms as they were recited on the record on September 10, 2013, " ( see id. at 1, 5). Plaintiff's main objections are that (1) she did not agree to release Stephen Colvin or other former employees of the corporate Defendants since, among other reasons, they did not agree to release her; (2) she did not agree to release all claims that "could have been" brought, only those that were actually brought; (3) the confidentiality clause should not be limited to the settlement amount; and (4) James Catledge and Derek Elliot should not be specifically named as excluded from the release. Plaintiff's numerous other specific objections are addressed below.

Defendants Quadrangle and Alpha Media raise a single objection that, in light of Plaintiff's actual and anticipated appeals of this Court's orders, the deadline to pay Plaintiff the settlement amount should be extended to 45 days after "(i) the date of this Order or (ii) the exhaustion of any appeals that Plaintiff may file, whichever date is later." (Defs.' Objections at 1-2.)

For the reasons that follow, the Court adopts Magistrate Judge Netbum's R&R, except as to the addition of a specific exclusion for James Catledge and Derek Elliot in the proposed settlement agreement. The Court therefore grants in part and denies in part each party's motion to enforce the oral settlement agreement. The Court orders enforcement of the edited settlement agreement, attached as Exhibit A, which memorializes the terms of the parties' oral settlement agreement in open court on September 10, 2013.


I. Legal Standard

A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l)(c). The Court "may adopt those portions of the [R&R] to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F.Supp.2d 157, 159 (S.D.N.Y. 2000). When a timely objection is made to the magistrate's recommendations, the court is required to review the contested portions de novo. Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). Objections must be "specific and clearly aimed at particular findings in the magistrate judge's proposal." Molefe v. KLM Royal Dutch Airlines, 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009). When an objection is conclusory, general, or simply rehashes the contentions found in the original motion papers, the Court will review the R&R for clear error. Id .; see Schoolfield v. Dep't of Corr., 1994 WL 119740, at *2 (S.D.N.Y. Apr. 6, 1994) (objections asserting that the magistrate judge's decisions are wrong and unjust, and restating relief sought and facts upon which complaint grounded, are conclusory and do not form specific basis for not adopting report and recommendation). While courts afford pro se litigants some latitude in meeting these requirements, they are "not exempt from the rules of procedural [] law." DiPilato v. 7-Elevan, Inc., 662 F.Supp.2d 333, 343 (S.D.N.Y. 2009) (quotation omitted).

II. Analysis[2]

A. Plaintiff's Objections

As an initial matter, Plaintiff broadly objects that the Court cannot alter material terms of the parties' oral settlement agreement at the September 10 conference. (See Pl.'s Objections at 1, 5.) Magistrate Judge Netbum addressed this issue in her R&R, noting that the Court "ha[s] ample authority to clarify ambiguities in the description of the settlement reached [on the record] by crafting the terms at issue." Manning v. New York University, 299 F.3d 156, 164 (2d Cir. 2002); see also R&R at 26-27. Where the court finds that there is no ambiguity in the contract, "the court must ascertain the intent of the parties from the plain meaning of the language.'" PaineWebber Inc. v. Bybyk, 81F.3d1193, 1199 (2d Cir. 1996) (quoting Tigue v. Commercial Life Ins. Co., 631N.Y.S.2d974, 975 (4th Dep't 1995)).

Plaintiff is adamant in her papers that, unlike Defendants, she is not providing her own "version" of the settlement agreement, but rather seeking to enforce the written transcript of the settlement conference. See, e.g., Pl.'s Objections at 4 ("Since Judge Netbum and the parties all agree that the September 10 oral settlement agreement is binding and enforceable as it was recited on the record then it would seem obvious that Judge Netbum would recommend the Court to enforce the oral settlement agreement as it was recorded.") In other words, Pullman believes that the terms of the agreement speak for themselves. At the same time, Pullman argues that when these terms speak, they say she should be able to pursue her claims against Colvin and the former employees of the corporate defendants. Although Pullman may believe the settlement agreement's terms are self-explanatory, the differing interpretations of the parties require the Court to construe the agreement.

A second theme to Pullman's objections is that any agreement that releases individuals that do not release her is not a "mutual" release. Plaintiff's point is well-taken; but she may rest assured that she is not releasing anyone who does not release her. The settlement simply releases the corporate defendants from any liability the corporate defendants may otherwise have incurred based on the actions of Colvin and other former employees involved in the alleged fraud. In exchange, the corporate defendants release Plaintiff from any defamation claims or other claims they may have brought against her in relation to the events underlying and connected to her bringing this action. Plaintiff is not releasing Colvin, nor any other employee of the corporate defendants, in his individual capacity under the settlement.

Having addressed these overarching issues, the Court now proceeds to analyze Plaintiff's specific objections. They are a rehash of arguments that Magistrate Judge Netburn thoroughly reviewed and discussed in her R&R. These objections do not warrant de nova review. Plaintiff's objections that do warrant de nova review are explicitly noted below.

1. Enforcement of the Oral Agreement

Pullman states that, prior to reading the R&R, she was unaware that NYCPLR § 2104 suggests an oral settlement agreement in open court may not be enforceable, if it involves a pro se plaintiff. Pullman nonetheless persists in arguing her motion to enforce the oral agreement, so the Court does not read her statement as opposing enforcement of the agreement. In her R&R, Magistrate Judge Netbum concluded that, notwithstanding NYCPLR § 2104, assessment of the Winston factors confirms the oral settlement agreement is enforceable, see Winston v. Media/are Entm't Corp., 777 F.2d 78 (2d Cir. 1986). The Court adopts this conclusion.

2. Inclusion of Former Employees in the Release

In the September 10 Settlement Conference, the parties ...

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