Widi v. Strafford County et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David J. Widi, Jr.
v. 	Case No. 13-cv-536-SM
Strafford County DOC, et al.
REPORT AND RECOMMENDATION
On September 17, 2019, the parties settled this case at
mediation. 	Approximately three weeks later, after experiencing
delays in receiving a settlement check and then being unable to
cash the check, plaintiff filed a “Notice of Withdrawal from
Settlement Agreement” (Doc. No. 190). 	Before the court for a
Report and Recommendation is defendants’ motion to enforce the
settlement agreement (Doc No. 191), to which plaintiff has
timely objected (Doc. No. 192). 	For the reasons that follow,
the district judge should grant defendants’ motion to enforce
the settlement agreement.
Background1
Plaintiff commenced this suit in 2013, alleging that the
defendants employed excessive force against him while he was
incarcerated at the Strafford County House of Corrections. 	On
1The basic facts surrounding the attempted mailing and
receipt of the settlement proceeds are not in dispute, except
where noted.
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September 17, 2019, the parties reached a settlement agreement
through a mediation with Judge Laplante. 	See Sept. 26, 2019
Mediation Report (Doc. No. 189). 	The parties agreed that
plaintiff would release all claims relating to the matter in
exchange for defendants’ payment of $12,000.00. 	See Sept. 17,
2019 Release (Doc. No. 191-3).
Although defense counsel had the settlement check in his
possession by September 20, 2019, he unfortunately mailed the
check to plaintiff’s previous address, a post office box.
Compounding counsel’s error, the relevant mail-forwarding order
had expired. 	Although postal service personnel assured defense
counsel that plaintiff’s mail would be forwarded, the envelope
containing the check was returned to counsel’s office as
undeliverable on October 3, 2019. 	The next day, counsel’s
assistant sent the check to Plaintiff’s correct address by FedEx
overnight delivery required a signature for receipt
verification. 	On October 5, 2019, FedEx reported a failed
delivery attempt. 	Plaintiff received the check two days later.
Plaintiff brought the check to a Citizen’s Bank branch –
the bank upon which the check was drawn -- where he alleges that
the bank would not accept the check. 	In his notice of
withdrawal, plaintiff states that a teller told him the bank
“could not accept the check.” 	Oct. 7, 2019 Notice of Withdrawal
from Settlement Agreement (Doc. No. 190) ¶ 5. 	In his objection
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to the defendants’ motion to enforce, plaintiff states that he
attempted to cash the check but was told that the check was “no
good” and “not valid.” 	Nov. 14, 2019 Objection (Doc. No. 192) ¶
2. 	Plaintiff further asserts that the check “cannot be
cashiered or deposited.” 	Id. ¶ 7. 	Plaintiff provided no
information as to the bank’s reasoning and no documentation from
the bank concerning its asserted rejection of the check.
Defense counsel represents that the check was issued by
the defendants’ insurer based on the approval of an adjuster and
contained the appropriate information required to issue a valid
check. 	Counsel surmises that the large amount of the check
might have given the bank pause. 	See October 11, 2019 Defs’.
Mem. (Doc. No. 191-1) at 6-7.
Analysis
I. 	Evidentiary Hearing
There is no dispute that the “court retains an inherent
power to supervise and enforce settlement agreements entered
into by parties to an action pending before the court.” 	Dankese
v. Def. Logistics Agency, 693 F.2d 13, 16 (1st Cir. 1982). 	“A
party to a settlement agreement may seek to enforce the
agreement’s terms when the other party reneges.” 	Malave v.
Carney Hosp., 170 F.3d 217, 220 (1st Cir. 1999). 	There are two
ways to enforce the agreement. 	See id. 	First, the party may
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bring an independent action for breach of contract if the
original suit has already been dismissed at the time of the
alleged breach. 	See id. 	Second – as the defendant has done
here -- if the original suit has not been dismissed, the party
may file a motion for enforcement. 	See id. 	When the underlying
cause of action is federal in nature, the motion for enforcement
is determined in accordance with federal law. 	See id.
”Summary enforcement of arm’s-length settlements [are] a
useful device to hold litigants to their word, but the procedure
ought to be reserved for situations in which a struck bargain is
admitted or proved, and the basis for nonperformance is
insubstantial.” 	Id. at 222. 	“As a general rule, a trial court
may not summarily enforce a purported settlement agreement if
there is a genuinely disputed question of material fact
regarding the existence or terms of that agreement.” 	Id. 	If a
material fact as to the existence or terms of the agreement
exists, the court should take evidence to resolve the contested
issues of fact. 	See id.
Here, the settlement agreement terms are clear and
unambiguous. 	Plaintiff agreed to release all claims relating to
the matter and Defendants agreed to make payment of $12,000.00.
Significantly, plaintiff has not raised an issue as to the terms
of the settlement agreement. 	Instead, he complains only about
its execution. 	Accordingly, in the absence of any genuine issue
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of material fact, the court has the authority to proceed without
a hearing. 	See Malave, 170 F.3d at 222. 	The court turns next
to the merits of defendants’ motion.
B. 	Merits
Settlement agreements, like other contracts, abide by the
usual considerations of contract interpretation. See Accusoft
Corp. v. Palo, 237 F.3d 31, 39-40 (1st Cir. 2001) (quoting AMF
v. Jewett, 711 F.2d 1096, 1102 (1st Cir. 1983)). 	“Federal
common law includes the common-sense canons of contract
interpretation derived from state law.” 	Peterson v. Warden,
N.H. State Prison, No. 14-cv-432-LM, 2018 DNH 188, 2018 U.S.
Dist. LEXIS 158243, at *3 (D.N.H. Sept. 17, 2018) (quoting
Morias v. Cent. Beverage Corp. Union Emps.’ Supplemental Ret.
Plan, 167 F.3d 709, 712 (1st Cir. 1999)) (internal quotation
marks omitted). 	Thus, “[t]he party who attacks a settlement
must bear the burden of showing that the contract he has made is
tainted with invalidity.” 	Id. (internal citation and quotation
marks omitted).
“In the absence of a showing of fraud, duress, or other
circumstances suggesting that the settlement was not knowing or
voluntary, the district court need not examine the circumstances
surrounding the settlement.” 	Id. at *4 (quoting Newkirk v.
Vill. of Steger, 536 F.3d 771, 774 (7th Cir. 2008)) (internal
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punctuation and quotation marks omitted). 	In addition, “an
alleged contract cannot be enforced in any form of action if its
terms are vague, indefinite and uncertain.” 	Id. (citing Am.
Postal Workers Union, AFL-CIO v. Mail Contractors of Am., Inc.,
No. 1:04-CV-2094-BBM, 2005 WL 8154727, at *3 (N.D. Ga. July 1,
2005)) (internal citation, punctuation, and quotation marks
omitted).
Here, neither plaintiff’s notice of withdrawal nor his
objection to the defendants’ motion to enforce suggest that the
settlement agreement is invalid in any respect. 	He does not,
for example, indicate that the terms of the agreement are vague,
indefinite, or uncertain. 	Nor does he claim that he entered
into the agreement unknowingly or involuntarily. 	As noted,
plaintiff’s only relevant contentions are that the check he was
issued is “not good” and that delivery of the check was delayed.
“Settlement agreements enjoy great favor with the courts as
a preferred alternative to costly, time-consuming litigation.”
Peterson, 2018 U.S. Dist. LEXIS 158243, at *2 (citing Fid. &
Guar. Ins. Co. v. Star Equip. Corp., 541 F.3d 1, 5 (1st Cir.
2008)) (internal citation and quotation marks omitted). 	As a
result, courts are reluctant to vacate a validly negotiated
settlement agreement. See id. 	Here, because plaintiff has not
demonstrated any invalidity as to the settlement agreement, he
should remain bound by its terms. 	Moreover, plaintiff does not
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dispute that he received the settlement check pursuant to the
agreement. 	Whatever the reasons for the delay, plaintiff
received the check within a reasonable amount of time.2
Although Widi contends that he was unable to cash or
deposit the check he received, there is nothing in the record to
support his contention that the check is invalid. 	See, e.g.,
Oct. 10, 2019 Aff. of Laura Pearson (Doc 191-5) (insurer’s
treasurer describing check issuing process and including copy of
check). 	Without any supporting detail, such as an affidavit or
correspondence from bank personnel, plaintiff’s vague
representations about being unable to cash the check or being
told the check was “no good” do not give him sufficient grounds
to avoid enforcement of the settlement agreement he signed on
September 17, 2019.
Finally, plaintiff’s ascribing nefarious intent to defense
counsel’s inquiry into dismissal of the case is meritless. 	See
Oct. 7, 2019 Notice of Withdrawal (Doc. No. 190) ¶ 6. 	Dismissal
of the case is a condition of the settlement. 	The court is
persuaded that defense counsel has no intention of filing any
documents requesting that the court dismiss the case until such
2The court notes that plaintiff threatened to back out of
the agreement within days of its execution. 	See Doc. 191-4 at
8.
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time as all outstanding issues are resolved. 	See Def. Mem.
(Doc. No. 191-1) at 8.
Conclusion
For the reasons set forth herein, the undersigned
recommends that the district judge assigned to this case grant
the defendants’ motion to enforce settlement (Doc. No. 191).
Should the judge adopt this recommendation, the undersigned
further recommends that the district judge or the parties to
confer, within fourteen days of the date of the Order approving
this recommendation, as to: 1) whether a replacement check is
necessary, and if so, 2) plaintiff’s preferred method of
delivery of the replacement check.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file objections within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 9, 2020
cc: 	Corey M. Belobrow, Esq.
David J. Widi, Jr., pro se
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