Timothy R. Myers v. MO & Company, Inc., et al.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 4, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12813
Non-Argument Calendar
________________________
D.C. Docket No. 8:10-cv-02606-JSM-AEP
TIMOTHY R. MYERS,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
MO & COMPANY, INC.,
a Florida corporation,
d.b.a. Tops Barber Shop,
BULLARD PARKWAY PROPERTIES, LLC,
a Florida limited liability company,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 4, 2011)

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Before CARNES, WILSON, and BLACK, Circuit Judges.
PER CURIAM:
Timothy Myers appeals a district court order reducing the amount of
attorney’s fees stipulated in a settlement agreement resolving his Americans with
Disabilities Act claim against MO & Company, Inc. Myers contends that the
district court lacked jurisdiction to alter the private settlement agreement.
I.
Myers, who uses a wheelchair, sued MO & Company, alleging that its
barbershop was in violation of the ADA. Myers sought declaratory and injunctive
relief to order MO & Company to make its facilities accessible and usable by
persons with disabilities.
During the discovery phase the parties reached a confidential settlement
agreement. MO & Company agreed to make certain alterations to the barbershop
in exchange for Myers dropping his lawsuit. MO & Company also agreed to pay
Myers $8,600 in attorney’s fees and $400 in court costs.
The parties filed a joint stipulation for dismissal with prejudice under
Federal Rule of Civil Procedure 41(a)(1)(ii). The district court dismissed the case,
in accordance with its local rule, M.D. Fla. R. 3.08, without prejudice “subject to
the right of the parties,” within 60 days, to submit a stipulated form of final order
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or judgment, if they chose to do so, or to move “to reopen the action, upon good
cause.” (emphasis omitted). The dismissal would be with prejudice following that
60-day period. The district court, however, did something beyond the scope of its
local rule. It expressly retained jurisdiction “during and after” the 60-day period
“to determine the reasonableness of [Myers’] attorney’s fees and costs.” The
district court also prohibited payments of fees or costs without its consent.
Two months later Myers’ attorney submitted an affidavit detailing his fees.
The district court then entered an order reducing the attorney’s fees award to
$5,450 and ruled that Myers was not entitled to reimbursement for his personal
expenses. The district court then dismissed the case with prejudice. Myers’
appeal followed.
II.
We review de novo a district court’s subject matter jurisdiction. Adventure
Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008). “We also
review de novo the district court’s interpretation of federal procedural rules.”
United States v. Elmes, 532 F.3d 1138, 1141 (11th Cir. 2008).
Federal Rule of Civil Procedure 41(a)(1)(ii) provides: “[T]he plaintiff may
dismiss an action without a court order by filing . . . a stipulation of dismissal
signed by all parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(ii). The
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Supreme Court has stated that Federal Rule of Civil Procedure 41(a)(1) “does not
by its terms empower a district court to attach conditions to the parties’ stipulation
of dismissal.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381–82,
114 S.Ct. 1673, 1677 (1994). The Supreme Court held in Kokkonen that the
district court did not have subject matter jurisdiction to enforce a settlement
agreement after a Rule 41(a)(1)(ii) dismissal with prejudice. Id. A district court
may retain jurisdiction over the settlement, however, if the court “embod[ies] the
settlement contract in its dismissal order (or, what has the same effect, retain[s]
jurisdiction over the settlement contract) if the parties agree.” Id. (emphasis
added). This Court has interpreted Kokkonen as follows: “[I]f the district court
either incorporates the terms of a settlement into its final order of dismissal or
expressly retains jurisdiction to enforce a settlement, it may thereafter enforce the
terms of the parties’ agreement.” Am. Disability Ass’n v. Chmielarz, 289 F.3d
1315, 1320 (11th Cir. 2002).
The district court’s dismissal order in the present case did not incorporate
the settlement or even mention it. Nor did the district court retain jurisdiction to
enforce the settlement agreement. The district court purported to retain
jurisdiction only to modify the agreement. It was without the authority to do so,
especially because neither Myers nor MO & Company agreed to the district
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court’s authority over the settlement. See Kokkonen, 511 U.S. at 381–82, 114
S.Ct. at 1677. The district court thus had no subject matter jurisdiction when it
ordered the reduction of Myers’ attorney’s fees and costs.
VACATED AND REMANDED with instructions to dismiss with
prejudice.
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