United States District Court, S.D. New York
OPINION AND ORDER
KATHERINE POLK FAILLA UNITED STATES DISTRICT JUDGE
events underlying this litigation prove the adage that
friends and business do not mix. Erstwhile friends Erica
Meltzer and Debbie Stier both work in the Scholastic Aptitude
Test (“SAT”) tutoring business and both publish
SAT preparation materials. In 2015, Plaintiff Meltzer
commenced this action against Defendant Stier and her
single-member limited liability company, The Perfect Score
Project, LLC (collectively, “Defendants”),
alleging copyright infringement. It is not the merits of
Plaintiff's claims that bring the parties before the
Court, but rather a dispute concerning their purported
resolution. Following three settlement conferences before
Magistrate Judge James C. Francis IV, the parties discussed
and revised a proposed settlement agreement; Defendant
refused to enter the agreement, and thus began a protracted
fight over the whether this lawsuit had nonetheless settled.
Now before the Court is Plaintiff's motion to enforce the
purported settlement agreement. For the reasons that follow,
Plaintiff's motion is denied.
commenced this action on August 6, 2015. After reciting her
copyright in a book entitled The Critical Reader: The
Complete Guide to SAT Critical Reading, Plaintiff
alleged that, beginning in January 2015, Defendants published
a tutorial on their website under the title “28-Day
Critical Reading Intensive” that infringed on
Plaintiff's copyright. (Compl. ¶¶ 2, 8). In
particular, Plaintiff alleged that this section of
Defendants' website “infringes on Plaintiff's
copyright in each version of The Critical Reader”
insofar as it is “copied from The Critical Reader in
substance, style, and organization.” (Id. at
¶¶ 10, 23). To compensate Plaintiff for the
resulting damage and “irreparable harm, ”
Plaintiff sought an order enjoining any further infringement
by Defendants and directing Defendants to remove the
offending material from their website and deliver to the
Court all infringing material for destruction or other
disposition. (Id. at ¶¶ 25-26(a)-(c)).
Plaintiff also sought monetary damages “in excess of
$1, 000, 000” and attorneys' fees and costs.
(Id. at ¶ 26(d)-(e)).
early stages of this litigation, Defendants were represented
by counsel, who proposed filing a motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c).
(See Dkt. #14). Shortly thereafter, counsel moved to
withdraw, citing Defendants' inability to pay; the Court
granted the motion in December 2015, and allowed Defendant
Stier, but not her corporation, to proceed pro se.
(Dkt. #20-21). By letter dated January 8, 2016, the parties
jointly informed the Court that they wished to pursue a
settlement conference with Magistrate Judge Francis. (Dkt.
#22). The Court referred this case to Magistrate Judge
Francis for a settlement conference but noted that because
the corporate defendant did not have counsel, it would not
participate. (Dkt. #23). And so began the series of events
giving rise to the present dispute.
February 24, 2016, Magistrate Judge Francis held a settlement
conference with the parties. (February 24, 2016 Minute
Entry). Though there is no entry on the docket reflecting a
second settlement conference, the parties agree that
Magistrate Judge Francis held a second conference on March
21, 2016. (See Pl. Aff. ¶¶ 15, 18;
id. at Ex. K). On March 22, 2016, the Court ordered
the parties to submit a joint letter by March 28, 2016,
regarding the status of settlement discussions. (Dkt. #24).
On March 24, 2016, Magistrate Judge Francis held a telephonic
conference with the parties. (March 24, 2016 Minute Entry).
Following the March 24, 2016 telephonic conference, a law
clerk for Magistrate Judge Francis circulated a Stipulation
and Order of Settlement (the “Stipulation”) to
the parties that had been “revised as discussed in your
call with Judge Francis this morning.” (Pl. Aff., Ex.
A). She asked that the parties “review it and contact
Chambers … to inform Judge Francis if it is
acceptable.” (Id.). The Stipulation provided
(i) As of April 15, 2016, Defendants would remove and would
not restore or disseminate the “28-day Critical Reading
Intensive” from their website;
(ii) The parties would be permitted to continue to operate in
the SAT tutoring and test preparation field;
(iii) The parties would seek the other's written
permission to use any part of the other's works “in
a manner that legally requires attribution”;
(iv) The parties would not infringe on the other's works;
(v) The parties would refrain from defaming one another;
(vi) The parties would “exchange mutual general
releases upon the execution of this Stipulation”;
(vii) The action would be dismissed “[u]pon exchange of
said mutual general releases and execution of this
(Pl. Aff., Ex. A). The Stipulation contained signature blocks
for Plaintiff, her counsel, Defendant Stier, and the
corporate Defendant. Plaintiff's counsel, Bonnie P.
Josephs, responded about 30 minutes later stating, “Ms.
Meltzer is satisfied with the revised language of the
proposed settlement stipulation” and noted further that
Plaintiff would sign the agreement. (Id. at Ex. B).
About one hour following, Defendant Stier wrote back and
said: “Looks great to me.” (Id. at Ex.
next morning, on March 25, 2016, Defendant sent an email with
the subject line “a concern” to Magistrate Judge
Francis's Chambers, on which Plaintiff and her counsel
were copied. (Pl. Aff., Ex. V). Defendant Stier informed
Chambers that she had received a phone call from a
representative of the legal department at The New York
Times, who claimed to have gotten “a second call
from a woman ‘reporting me' for copyright
violation.” (Id.). At that time, Defendant
observed that “this is not germane to the settlement,
” but that she felt “it is important to put this
development on the record.” (Id.).
one hour later, a law clerk wrote to the parties that
Magistrate Judge Francis was pleased that the parties
“have agreed to sign the Stipulation, ” and
instructed Plaintiff's counsel to send a finalized
release to Defendant; the parties were to separately sign
releases and mail the originals to Chambers. (Pl. Aff., Ex.
H). That afternoon, Plaintiff's counsel sent to
Magistrate Judge Francis's Chambers an electronic copy of
a Settlement Stipulation and Order signed by Plaintiff and
her counsel, as well as a release executed by Plaintiff.
(Id. at Ex. I). Plaintiff's counsel sent to
Defendant the cover page of her transmission to Chambers.
(Id.). Plaintiff's counsel then wrote an email
to Defendant asking her to prepare a joint letter to inform
the Court that the parties had settled the case. (Stier
Decl., Ex. B). Defendant did not respond to the email.
(Id. at ¶ 10).
March 28, 2016, the Court received a submission from
Plaintiff's counsel styled as a “proposed joint
letter” stating “[t]he parties to this action,
with the assistance of Magistrate Judge Francis, have settled
the action as of March 25, 2016, ” and would
“compl[y] … with the March 25, 2016 direction of
Magistrate Judge Francis as to the means of submitting the
signed Settlement Stipulation and Order and cross
releases.” (Dkt. #25 (attached as Exhibit J to
Plaintiff's Affidavit)). Defendant Stier did not sign
this letter, and the cover page to the letter stated that
Defendant told Josephs that “she ‘needs more
time' to determine whether to co-sign the proposed
letter.” (Id.). Also on March 28, 2016, the
Court received a letter from Defendant Stier explaining her
hesitance to sign. (Dkt. #26 (attached as Exhibit K to
Plaintiff's Affidavit)). She informed the Court that
Magistrate Judge Francis had “circulated a draft
settlement stipulation that I was prepared to execute,
” but that she was reluctant to sign in light of the
phone call she received from The New York Times - a
call that prompted concern that Plaintiff would not abide by
the terms of the agreement. (Id.).
light of the parties' divergent positions on settlement,
the Court ordered the parties to appear for a conference on
April 5, 2016. (Dkt. # 26 (Attached as Exhibit L to
Plaintiff's Affidavit)). At the conference, Defendant
Stier made clear her opposition to entering a settlement with
Plaintiff without clear enforcement mechanisms. (Conference
Tr. 29:12-13, 35:24-36:6). Plaintiff's position was that
the Stipulation represented the totality of the agreement
between the parties and was final. (Id. at
5:18-6:5). Plaintiff's counsel stated she would file a
motion to enforce the settlement (id. at 8:4-6), but
Defendant requested additional time to consider whether she
would sign the Stipulation or move forward with motion
practice - either on Plaintiff's proposed motion to
enforce or Defendants' proposed motion to dismiss
(id. at 48:24-49:1). Thereafter, the parties
continued settlement negotiations - including two additional
settlement conferences - for several months; when those