Bias v. R & S Logistics and Handling Inc.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DORIAN BIAS,
REPORT AND
Plaintiff, 	RECOMMENDATION
23-CV-8977 (NGG) (ARL)
-against-
R & S LOGISTICS AND HANDLING INC.,
Defendant.
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LINDSAY, Magistrate Judge:
Before the Court, on referral, is Plaintiff Dorian Bias’ (“Plaintiff”) motion to enforce a
settlement reached shortly after a mediation held on February 24, 2025, or in the alternative for
permission to file an amended complaint. For the reasons set forth below, the undersigned
respectfully recommends that the motion to enforce the settlement be granted and the motion to
file an amended complaint be denied.
BACKGROUND
Plaintiff commenced this action on December 7, 2023, after filing an EEOC charge,
alleging race discrimination and retaliation and received his Right to Sue letter on September 22,
2023. ECF No. 1, Comp. ¶6. Plaintiff alleges Defendant R & S Logistics and Handling Inc.
(“Defendant”) terminated him in retaliation for complaints about racism. ECF No. 1. Defendant
answered the Complaint on February 20, 2024. ECF No. 5.
By letter dated November 27, 2024, the parties advised the Court that paper discovery
had been completed and that prior to beginning depositions the parties discussed potential
settlement of this matter and reached an agreement to participate in private mediation. ECF No.
11. In light of the parties stated intention to pursue mediation the court extended the discovery
deadline until April 4, 2025. By letter dated May 19, 2025, Plaintiff advised the Court that the
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parties had attended a private mediation session on February 24, 2025, and had reached a
settlement on March 5, 2025. According to Plaintiff, on April 24, 2025,
Plaintiff presented defense counsel with a status letter advising the court of the settlement
and requesting to adjourn the remaining deadlines sine die. On April 25, 2025, defense
counsel refused to approve the filing of the status letter. Shortly thereafter, defense
counsel informed Plaintiff’s counsel that Defendant, R&S Logistics and Handling, Inc.
(“R&S”) repudiated the settlement on the grounds the company may be winding down
operations. However, defense counsel requested, as a courtesy, that Plaintiff “sit tight”
while they tried to speak with their client, R&S, to urge R&S to consummate the
settlement or confirm that it was, in fact, repudiated.
ECF No. 12. As of the filing of Plaintiff’s letter on May 19, 2025, counsel for Defendant had
neither repudiated the settlement nor confirmed it. Id. By letter dated June 3, 2025, counsel for
Defendant advised the Court that
While it is true the parties attended mediation and negotiated general settlement terms, it
is further true that the undersigned is advised that R&S is now out of business and the
undersigned did request counsel provide the opportunity to verify the foregoing. . . .I am
advised that R&S is left insolvent
ECF No. 13. In response the Court issued the following order: “Discovery in this matter closed
on April 4, 2025 and the deadline for the filing of dispositive motions was April 28, 2025. To the
extent Plaintiff intends to engage in further motion practice, any such motions shall be filed by
June 27, 2025.” On July 29, 2025, Plaintiff filed a Motion for Enforcement of the Settlement, or
in the Alternative, for Leave to Amend the Complaint. ECF No. 14. According to Plaintiff, the
motion was served on Defendant on June 27, 2025 and no response was served. ECF No. 15.
Plaintiff asked that the motion be treated as unopposed. Id.
In the motion to enforce the settlement, Plaintiff states that the parties attended private
mediation on February 24, 2025 and “[a]lthough a resolution was not reached at mediation,
defense counsel contacted Plaintiff’s counsel the following day, on February 25, 2025, providing
a written counteroffer via email to settle the matter. . . . Ultimately, on March 5, 2025, a
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settlement was reached and Plaintiff’s counsel then followed up with defense counsel via email -
- confirming that he had received approval (from Plaintiff) to accept the last offer they had
discussed. On March 10, 2025, defense counsel replied via email, stating that she was awaiting a
response from her client about ‘payment plan arrangements’ and that she hoped to ‘hear from
him by tomorrow’ – demonstrating Defendant’s continued acquiescence to the previously
negotiated settlement offer on February 27, 2025.” ECF No. 14 at 7. At no time did defense
counsel reserve the right not to be bound to the agreement.
The payment arrangements were never finalized and by letter dated June 3, 2025, counsel
advised the Court that Defendant was insolvent. ECF No. 13. On July 29, 2025, Plaintiff filed the
instant motion to enforce the settlement. ECF No 14.
DISCUSSION
A motion to enforce a settlement agreement is fundamentally a claim for breach of
contract construed in accordance with general principles of contract law. See Lee v. Grove Grp.
Advisors LLC, No. 1:20-CV-05937 (ALC), 2024 WL 1077894, at *2 (S.D.N.Y. Feb. 29, 2024)
(citing Omega Eng'g, Inc. v. Omega, S.A., 432 F.3d 437, 444 (2d Cir. 2005); United States v.
Prevezon Holdings, Ltd., 289 F. Supp. 3d 446, 450 (S.D.N.Y. 2018)).1 “Under New York law,
an enforceable settlement agreement requires ‘an offer, acceptance, consideration, mutual assent
and intent to be bound.’” Lee, 2024 WL 1077894, at *2 (citing Register.com, Inc. v. Verio, Inc.,
356 F.3d 393, 427 (2d Cir. 2004)). But, to be binding, the parties must have agreed on all of the
essential terms that required negotiation. Samuel v. Aron, No. 19 CV 5229 MKB TAM, 2022
1 A district court has the power to enforce a settlement agreement reached in a case that was pending before it on
motion. Murphy v. Inst. of Int'l Educ., No. 19 CIV 1528 ALC RWL, 2020 WL 6561603, at *4 (S.D.N.Y. July 27,
2020), report and recommendation adopted, No. 19-CV-1528 (ALC), 2020 WL 5658628 (S.D.N.Y. Sept. 23, 2020),
aff'd, 32 F.4th 146, 150 (2d Cir. 2022) (citing Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2d
Cir. 1974)).
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WL 17853228, at *3 (E.D.N.Y. Sept. 14, 2022), report and recommendation adopted, No. 19 CV
5229 MKB TAM, 2022 WL 17852022 (E.D.N.Y. Dec. 22, 2022) (citing Murphy, 32 F.4th at
150). Accordingly, the ultimate issue is “whether the parties intended to be bound, and if so, to
what extent.” Id. (citing Vacold LLC v. Cerami, 545 F.3d 114, 125 (2d Cir. 2008)). “When a
court determines that a settlement agreement was in fact reached, . . . ‘it is an elementary
principle of contract law that a party's subsequent change of heart will not unmake a bargain
already made.’” Lee, 2024 WL 1077894, at *2 (citing Omega Eng'g, Inc., 432 F.3d at 445).2
In Murphy v. Inst. of Int'l Educ., 32 F.4th 146, 150-51 (2d Cir. 2022), the Second Circuit
described a framework it has adopted for analyzing preliminary agreements such as the one in
this case. Specifically, the Second Circuit noted that there are two types of preliminary contracts
recognized under New York law:
The first (Type I) ‘occurs when the parties have reached complete agreement
(including the agreement to be bound) on all the issues perceived to require
negotiation.’ This kind of agreement is preliminary ‘only in the sense that the
parties desire a more elaborate formalization of the agreement,’ which,
although not necessary, is desirable. The second (Type II) ‘is one that
expresses mutual commitment to a contract on agreed major terms, while
recognizing the existence of open terms that remain to be negotiated.’
Murphy, 32 F.4th at 150 (quoting Teachers Ins. & Annuity Ass'n of Am. v. Tribune Co., 670 F.
Supp. 491, 498 (S.D.N.Y. 1987)).
The Second Circuit has adopted four “helpful” factors that can be used in determining
whether something constitutes a Type I agreement: (1) whether there has been an express
reservation of the right not to be bound in the absence of a writing; (2) whether there has been
partial performance of the contract; (3) whether all of the terms of the alleged contract have been
2 “The party seeking to enforce a purported settlement agreement bears the burden of proving that a binding and
enforceable agreement exists. Samuel, 2022 WL 17853228, at *3 (citing Benicorp Ins. v. Nat'l Med. Health Card
Sys., Inc., 447 F. Supp. 2d 329, 335 (S.D.N.Y. 2006)).
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agreed upon; and (4) whether the agreement at issue is the type of contract that is usually
committed to writing.” Samuel, 2022 WL 17853228, at *4 (citing Winston v. Mediafare
Entertainment Corp., 777 F.2d 78, 80 (2d Cir. 1985)). In this case, there was no express
reservation of the right not to be bound in the absence of a writing. On March 5, 2025, counsel
for Plaintiff wrote that he had the authority to accept the latest offer and asked for confirmation
of the settlement. ECF No 14-2. He followed up with an email on March 10, 2025, stating
“following up here regarding wrapping up the settlement.” Id. That same day counsel for
Defendant responded “Sorry, I haven’t heard back from my client about payment plan
arrangements. I hope to hear from him by tomorrow.” In addition, the settlement agreement at
issue is the type of contract usually committed to writing and Plaintiff sent Defendant a draft
settlement agreement memorializing all terms as previously negotiated via telephone and email
correspondence on May 6, 2025. ECF No. 14-2. And, while the draft agreement was not
ultimately executed, the facts clearly evince the parties’ intent to be bound by the terms
discussed during the mediation and in subsequent conversations. It was not until June 6, 2025,
that counsel for Defendant indicated she had been unable to reach her client and had been
informed of Defendant’s insolvency. ECF No. 13. At no time has there been a suggestion that an
agreement had not been reached. For all these reasons, the Court finds that the parties had
reached a binding agreement to settle all of the claims in the Complaint, and thus, recommends
that Plaintiff’s motion to enforce the settlement be granted.
The undersigned further recommends that this Court not retain ancillary jurisdiction to
enforce the settlement agreement. In order to retain ancillary jurisdiction over enforcement of a
settlement agreement, "a district court's order of dismissal must either (1) expressly retain
jurisdiction over the settlement agreement, or (2) incorporate the terms of the settlement
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agreement in the order." Hendrickson v. United States, 791 F.3d 354, 358 (2d Cir. 2015) (citing
Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 381, 114 S. Ct. 1673, 128
L. Ed. 2d 391 (1994)); see also Crispin v. Rodriguez, No. 21-883, 2023 U.S. App. LEXIS 2414,
at *5, 2023 WL 1113536 (2d Cir. Jan. 31, 2023) (“The District Court's order dismissing the case
neither expressly retained jurisdiction over the out-of-court settlement agreement nor
incorporated the terms of the agreement. Therefore, the District Court correctly determined that
it lacked jurisdiction to enforce the settlement agreement. In order to enforce his settlement
agreement, Crispin would need to bring an action in state court.”).
Plaintiff also requests permission to file an Amended Complaint adding two new
defendants. Here, the time for filing an amended pleading passed on April 29, 2024. ECF No. 7.
Where, as here, a Court has issued a scheduling order, pursuant to Rule 16, such an order "may
be modified only for good cause." Fed. R. Civ. P. 16(b). Thus, "despite the lenient standard of
Rule 15(a), a district court does not abuse its discretion in denying leave to amend the pleadings
after the deadline set in the scheduling order where the moving party has failed to establish good
cause." Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000). Plaintiff, as the
movant, has the burden of proving good cause. Ahmed v. Astoria Bank, No. 14-CV-4595, 2015
U.S. Dist. LEXIS 92689, 2015 WL 4394072, at *2 (E.D.N.Y. July 16, 2015). Plaintiff has made
no argument regarding good cause for the belated motion to amend.
Moreover, discovery in this action closed on April 4, 2025. “[C]ourts in this circuit
routinely hold that motions to amend are untimely when filed after the close of discovery."
Weaver v. Warrington, No. 14-CV-7097, 2018 U.S. Dist. LEXIS 180557, 2018 WL 5253110, at
*1 (E.D.N.Y. Oct. 22, 2018) (citing cases); see also GB v. Town of Hempstead, No. 17-6625
(JMA)(ARL), 2025 U.S. Dist. LEXIS 23760, 2025 WL 1029439, at *4 (E.D.N.Y. Feb. 10,
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2025), report and recommendation adopted, No. 17-CV-06625 (JMA) (ARL), 2025 U.S. Dist.
LEXIS 40809, 2025 WL 719125 (E.D.N.Y. Mar. 6, 2025) (“Plaintiffs offer no justification for
their belated request to add this new defendant. Plaintiffs' motion would require that discovery be
reopened because . . . a party defendant, . . . would be entitled to take depositions and seek
documents. This weighs against finding good cause to excuse the failure to amend prior to the
Rule 16 deadline”); Bromfield v. Bronx Lebanon Special Care Ctr., Inc., 2019 U.S. Dist. LEXIS
70934, 2019 WL 1873156, at *3 (S.D.N.Y. Apr. 26, 2019) (denying motion to amend and add
new defendant after discovery had closed where "proposed amendment would require the
reopening of discovery . . . and the re-deposition of plaintiff, the individual defendants and
perhaps other witnesses as well."). Thus, the undersigned further recommends that Plaintiff’s
motion to file an amended complaint adding two new defendants be denied.
OBJECTIONS
A copy of this Report and Recommendation is being electronically served by the Court
on the parties. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of the Federal Rules of Civil
Procedure, the parties shall have fourteen (14) days from service of this Report and
Recommendation to file written objections. Such objections shall be filed with the Clerk of the
Court via ECF. Any requests for an extension of time for filing objections must be directed to
Judge Garaufis prior to the expiration of the fourteen (14) day period for filing objections.
Failure to file objections will result in a waiver of those objections for purposes of appeal of the
District Court’s Order. See 28 U.S.C. § 636(b)(1); Fed R. Civ. P 72; Wagner & Wagner, LLP v.
Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010);
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Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchant’s Bank, 84 F.3d 52, 60
(2d Cir. 1996).
Dated: Central Islip, New York
December 16, 2025
__________/s________________
ARLENE R. LINDSAY
United States Magistrate Judge
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