United States District Court, E.D. New York
KATHLEEN TOMLINSON U.S. Magistrate Judge
March 3, 2017, Defendant International Recovery Associates
(“Defendant”) filed a letter motion asserting
that “Plaintiff would not abide by the stipulation
[purportedly entered into on the record during the August 23,
2016 status conference] between the parties that [they] would
not move for summary judgment and that the above-entitled
lawsuit would be tried before a jury.” DE 51 at
Specifically, Defendant argues that “[v]ia his
representations before [this Court] at the August 23, 2016
conference, Mr. Barshay bound the Plaintiff to her
stipulation regarding waiving summary judgment and proceeding
to trial.” Id. at 3. Thus, according to
Defendant, the putative “stipulation” entered
into between the parties during the August 23, 2016
conference constituted a “strategic litigation decision
to waive summary judgment and proceed to [a] jury trial and
the Plaintiff must be bound thereto.” Id.
response, Plaintiff primarily argues that “despite
Defendant's insistence that the parties entered into a
stipulation to waive their respective rights to move for
summary judgment, no such stipulation exists, ” and
that in any event, “the [Court's] Order does not
state that the parties will not move for summary judgment,
nor does it state that either side waives its right to move
for summary judgment. Rather, the plain language of the Order
evidences that on August 23, 2016, the parties did not intend
to move for summary judgment.” DE 52 at 1-2. In
addition, Plaintiff maintains that to the extent the
Court's Order memorializes an oral stipulation between
the parties concerning waiver of summary judgment motion
practice, “then the Order also binds the parties to
utilize experts.” Id. at 2. In that regard,
Plaintiff argues that when Defendant, “without any
explanation whatsoever, advised, via email, ‘that the
Defendant has decided against retaining an expert,
'” it “anticipatorily repudiated” the
alleged stipulation with the effect that “Defendant may
not now seek to enforce the stipulation, and plaintiff not
only is excused from further performance under the
stipulation, but may also, at her option, treat the contract
as terminated for all purposes of performance.”
Id. at 2-3. As such, Plaintiff urges the Court to
deny Defendant's motion and permit her to proceed with
summary judgment motion practice in accordance with Judge
Spatt's Individual Rules. Id. at 4.
Stipulations entered into on the record in open court
“are treated as contracts to be construed in accordance
with contract law principles.” In re MarketXT
Holdings Corp., 336 B.R. 39, 58-59 (S.D.N.Y. 2006)
(citing Omega Eng'g, Inc. v. Omega, S.A., 432
F.3d 437, 443-44 (2d Cir. 2005); Rella v. N. Atl. Marine,
Ltd., No. 02 Civ. 8573, 2004 WL 1418021, at *3 (S.D.N.Y.
June 23, 2004); see In re Petker & Buran Fur
Corp., 201 B.R. 861, 863 (S.D.N.Y. 1996),
aff'd, 104 F.3d 351 (2d Cir. 1996) (“A
settlement agreement-including one made in open court-is a
contract and is construed using contract law
principles.”). It follows that “parties are bound
to agreements entered into on the record in open court by an
attorney who has actual or apparent authority to so
act.” In re MarketXT Holdings Corp., 336 B.R.
at 58-59; see Pereira v. Sonia Holdings, Ltd. (In re
Artha Mgmt., Inc.), 91 F.3d 326, 329 (2d Cir. 1996);
United States v. Int'l Bd. of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 986 F.2d 15, 19 (2d
any other agreement, however, there must exist “a
meeting of the minds between the parties on all essential
terms.” Rella, 2004 WL 1418021, at *3; In
re MarketXT Holdings Corp., 336 B.R. at 58-59; see
also Sprint Commc'ns Co. L.P. v. Jasco Trading,
Inc., 5 F.Supp.3d 323, 329 (E.D.N.Y. 2014)
(“[P]arties are free to bind themselves orally, and the
fact that they contemplate later memorializing their
agreement in an executed document will not prevent them from
being bound by the oral agreement . . . However, if the
parties intend not to be bound until the agreement is set
forth in writing and signed, they will not be bound until
then.”). “In determining intent, the court is not
to look at the parties' after-the-fact professed
subjective intent, but their objective intent as manifested
by their expressed words and deeds at the time, ' and
only [i]f the parties' expressions and conduct would lead
a reasonable man to determine that they intended to reach a
binding agreement, their agreement will be enforced.”
Stetson v. Duncan, 707 F.Supp. 657, 666 (S.D.N.Y.
1988) (quoting Reprosystem, B.V. v. SCM Corp., 522
F.Supp. 1257, 1275 (S.D.N.Y. 1981), aff'd in part,
rev'd in part on other grounds, 727 F.2d 257 (2d
Cir. 1984)); see Blake v. Fiit Int'l, Inc., No.
05 CIV. 6150, 2007 WL 980362, at *6 (S.D.N.Y. Mar. 30, 2007).
Courts generally favor stipulations because “strict
enforcement not only serves the interest of efficient dispute
resolution but also is essential to the management of court
calendars and integrity of the litigation process.”
In re MarketXT Holdings Corp., 336 B.R. at 58-59;
In re Cuffee, 232 B.R. 53, 56 (E.D.N.Y.),
aff'd, 201 F.3d 430 (2d Cir. 1999).
to the instant case, Defendant's argument (i.e.,
that a stipulation existed between the parties to waive
summary judgment motion practice and proceed to a trial by
jury) rests exclusively on the content of the Court's
colloquy with the parties during the August 23, 2016
conference in conjunction with certain language utilized by
the Court in its Minute Order memorializing that conference.
See DE 37 (August 23, 2016 Minute Order); DE 55-1
(Transcript of the August 23, 2016 before the Honorable A.
Kathleen Tomlinson (“Tr.”)). Specifically, during
the conference, the following exchanges took place:
MR. ARLEO: I would say, your Honor, that the defendant in
this case (ui) would stipulate to this case that it could be
a question for the jury, whether or not (ui) consumer would
think that the creditor was not (ui). I think at this point,
the defendant is ready for a jury trial.
THE COURT: Okay.
MR. ARLEO: Pending Judge Spatt's decision on the
THE COURT: Okay. Does that mean you're going to forego
MR. ARLEO: Yes.
MR. BARSHAY: From the plaintiff's point of view, Judge,
all we need -- all we have to do is expert disclosure and
then we're ready for trial as well.
THE COURT: Expert ...