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Scheinmann v. Dykstra

United States District Court, S.D. New York

April 21, 2017

NOAH SCHEINMANN, Plaintiff,
v.
LEONARD DYKSTRA, Defendant.

          OPINION & ORDER

          ANDREW J. PECK, United States Magistrate Judge

         Having been advised that the parties reached a settlement agreement in principle, the Court dismissed this action with prejudice on March 30, 2017, but allowed reinstatement within thirty days if the settlement was not fully effectuated. (Dkt. No. 45.) On April 3, 2017, when defendant Leonard Dykstra refused to sign the consent judgment, plaintiff Noah Scheinmann moved to reopen the case to enforce the settlement. (Dkt. No. 46.) The Court reopened the case to consider Scheinmann's motion. (Dkt. No. 48.) The parties have consented to decision of the case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 36.) For the reasons set forth below, Scheinmann's motion to enforce the settlement is GRANTED, but his request for attorneys' fees is DENIED. Put another way, Dykstra's position has struck out.

         FACTS

         On March 13, 2017, Scheinmann's counsel, Jon Bierman, sent Dykstra's counsel, Jeremy Smith, the following email:

Jeremy,
Thank you for sending over the documents. I propose settling this matter on the following terms:
• Mr. Dysktra agrees to an up-front payment of some amount. I realize that he has significant financial difficulties and I am not talking about a large number. You tell me what he can come up with.
• Mr. Dysktra consents to a judgment being taken in favor of Mr. Scheinmann in the amount of $15, 000 less the amount of the up-front payment, and
• Mr. Dykstra dismisses his counterclaim with prejudice.
This offer remains open until 5 pm (central time) on Wednesday, March 15th.

(Dkt. No. 46-1: Bierman Aff. Ex. 1: 3/13/17 Email.)

         On March 14, 2017, Smith responded:

Jon,
My client can agree to the second and third terms, but he does not have any money to pay towards the $15, 000. He was counting on the Harper Collins money (as was I) and his other lawsuit was dismissed on summary judgment.
Please let me know if we have a ...

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