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Doe v. Kogut

United States District Court, S.D. New York

April 6, 2017

JANE DOE, Plaintiff,
STEVEN KOGUT, Defendant.


          SARAH NETBURN, United States Magistrate Judge:

         On October 26, 2016, the parties participated in a settlement conference before the Court and reached an oral settlement agreement, the material terms of which were recited on the record. Before the agreement could be memorialized in a formal written contract, however, plaintiff indicated that she no longer wished to be represented by the attorney who appeared on her behalf at the settlement conference, and she obtained new representation thereafter. At a second conference before the Court on November 30, 2016, plaintiff's new counsel asserted that the settlement agreement reached on October 26, 2016, was not binding and enforceable because (1) neither party had been sworn in; (2) plaintiff had not accepted the material terms of the agreement; and (3) there was a failure of consideration. Defendant subsequently filed a motion to enforce the October 26, 2016 settlement agreement and for attorney's fees and sanctions against plaintiff.

         For the reasons set forth below, the defendant's motion to enforce the settlement agreement is GRANTED but his request for attorney's fees is DENIED. The proposed Order of Settlement and Judgment is executed and the action is dismissed with prejudice.


         I. Procedural Background

         On September 30, 2015, plaintiff Jane Doe filed a complaint in the United States District Court for the Southern District of New York, alleging she was physically and sexually assaulted and threatened by defendant. Approximately one year later, defendant filed a complaint in New York Supreme Court, alleging, among other claims, a negligent failure to warn and a civil conspiracy to defraud. On October 6, 2016, plaintiff removed defendant's action to the United States District Court for the Southern District of New York. In addition, plaintiff obtained a temporary restraining order in the Family Court of the State of New York, which she has moved to convert to a permanent order. Presumably as a result of a related criminal complaint she filed and that is under consideration with the New York County District Attorney's Office, the petition regarding the restraining order has been transferred to the Integrated Domestic Violence Part.

         II. Factual Background

         A. Plaintiff's Allegations

         In her September 30, 2015 complaint, plaintiff alleges she suffered physical, emotional, and sexual abuse from defendant beginning in April 2014, shortly after the two began a romantic relationship. According to plaintiff, throughout their relationship, defendant beat, raped, and threatened her, including taking photos of plaintiff with her mouth duct-taped and boasting that he wanted her to suffer. Defendant also told plaintiff that he previously bribed politicians and judges. Occasionally, defendant would ply her with expensive presents and take her on vacations to apologize for the abuse. In July 2014, plaintiff, accompanied by police officers, moved out of defendant's apartment after defendant allegedly shoved her down a flight of stairs. Plaintiff claims that she continues to suffer severe emotional distress and Post Traumatic Stress Disorder, that defendant has not removed vilifying online content, and that she requires medication and therapy as a result of defendant's conduct. Plaintiff and defendant do not currently reside in the same state.

         B. Defendant's Allegations

         Defendant alleges he was physically assaulted and harassed by plaintiff. On July 16, 2014, defendant claims plaintiff bit and bruised him. The following morning, after a confrontation between defendant's daughter and plaintiff (a domestic incident report of this confrontation was filed by the police), plaintiff returned to defendant's apartment with police officers to retrieve her belongings. Defendant made clear to plaintiff that she was not to return to the apartment unless she was accompanied by the police. Defendant alleged that two days later, plaintiff entered his apartment without permission. Plaintiff was then arrested and charged with assault in the third-degree and harassment in the second-degree and a second domestic incident report was filed.

         Defendant also alleges defamation as a result of various unflattering articles published in the New York Post. Specifically, defendant claims plaintiff provided the New York Post false information about him, including his wanting plaintiff to suffer “like Hitler made people suffer” and bragging he had the police on his side. Am. Compl. ¶ 23. Because this information was circulated in a well-known publication, defendant believes he has been exposed to public ridicule, his current business relationships have been damaged, and future investment opportunities have been lost.

         Finally, according to defendant, plaintiff engaged in racketeering activity centered on fraudulent charity organizations and schemes. After plaintiff moved into his apartment in May 2014, he began probing into her charity endeavors and discovered that she was embezzling donations and had created a shell nonprofit organization to generate funding. He also claims that plaintiff gloated of extorting a previous boyfriend and believes that he has been a victim of extortion as well.

         C. October 26, 2016 Settlement Conference and Agreement

         1. The Settlement Conference[1]

         The Court held a settlement conference on October 26, 2016 (the “October 26 conference”). Both plaintiff and defendant were represented by counsel-Paul J. Campson of Campson and Campson, and Christopher Scott Joslin of David Horowitz P.C., respectively. I spoke separately with plaintiff and defendant multiple times, conveying each party's position. After approximately five and a half hours of facilitated negotiation, the parties indicated they would accept the negotiated terms and settle the case. I then asked the parties to convene in the courtroom to place the terms of the settlement agreement and the parties' consent to those terms on the record.

         Once the parties were in the courtroom, I entered the terms of the settlement agreement into the record. At the outset, I stated, “I want to make sure that each party understands the terms of the settlement agreement, that each party accepts the terms of the settlement agreement, and that each party understands that he or she will be entering into a binding and enforceable oral agreement today.” Oct. 26, 2016 Tr. at 3:5-9. I emphasized that “we are entering into a contract today.” Id. at 3:10. Next, I acknowledged the parties' intent to memorialize the oral agreement in writing after the settlement conference and explained that the written result would reflect the material terms. I did not state that a term of the agreement was that it be memorialized in a written document before anyone would be bound the settlement terms. No one expressly reserved the right not to be bound before an agreement would be enforceable.

         I then recited the following terms of the agreement. First, defendant would pay plaintiff $10, 000 within 30 days from the execution of the written settlement agreement, which I had envisioned would happen within the following two weeks. Second, plaintiff's and defendant's claims would be dismissed with prejudice. Third, there would be “mutual general releases of all claims that were known or unknown based on any facts from the beginning of time to today's date, October 26th.” Oct. 26, 2016 Tr. at 4:24-5:1. Fourth, under a mutual non-disparagement requirement, both parties would not speak unfavorably about the other. Fifth, the settlement agreement would be confidential. Sixth, the plaintiff would withdraw both her complaint in the criminal proceeding (with the understanding that the case could still go forward in the prosecution's discretion), and her petition in Family Court to convert the temporary restraining order into a permanent restraining order. I directed plaintiff's counsel to withdraw the Family Court petition by November 10, 2016, and to copy defense counsel on his application to withdraw. Seventh, there would be a mutual stay away provision-the parties, in perpetuity, would refrain from purposefully engaging in acts or conduct that might lead to interaction, including both physical and virtual conduct. Finally, the parties would remove any reference to the opposing party on any websites they controlled and notify opposing counsel as to when the information would be withdrawn.

         In addition to these material terms, the Court and the parties discussed, on the record, the method by which defendant would transfer the settlement amount to plaintiff. I also stated that once the oral settlement agreement was reduced to a writing and the parties consented to my jurisdiction for all purposes, I would “promptly dismiss both cases with prejudice but with leave to reopen within 30 days.” Oct. 26, 2016 Tr. at 7:23-8:2.

         I then provided the parties with an opportunity to ask questions or raise issues about any of the recited terms. Aside from defense counsel's request for clarification regarding the form of payment, no questions or statements were made by any party. I asked both parties to affirm that they understood the terms of the agreement I had just recited and that they agreed to be bound by the settlement agreement as recited on the record. I began with plaintiff, who stated she understood the terms. When I asked whether she accepted the terms, the following exchange occurred:

THE COURT: Do you accept these terms? Do you accept these terms of the settlement agreement?
MR. KOGUT: Yes, Your Honor.
THE COURT: No, no. Sorry. Let me -- I'm speaking just to the plaintiff right now.
MS. DOE: He's harassing me while I'm here.
THE COURT: He's not harassing you. He misunderstood what was happening. Do you understand the terms of the settlement agreement?
MS. DOE: Yes, Your Honor.
THE COURT: Do you accept these terms?
MS. DOE: I prefer it to go forward and let him win. Yes.
THE COURT: That's not an answer I can accept. So you have ...

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