Opinion
C/A No. 9:17-cv-00452-DCN C/A No. 9:17-cv-00794-DCN
04-09-2019
OLDFIELD CLUB, FOR ITSELF AND ON BEHALF OF ITS MEMBERS, Plaintiff, v. TI OLDFIELD DEVELOPMENT, LLC, et al., Defendants. OLDFIELD COMMUNITY ASSOCIATION, BY AND THROUGH ITS CURRENT BOARD OF DIRECTORS, FOR AND ON BEHALF OF ITS MEMBERS, Plaintiff, v. TI OLDFIELD DEVELOPMENT, LLC, et al., Defendants.
SPECIAL MASTER'S REPORT AND RECOMMENDATION ON ROB STAR'S CROSS-MOTION FOR A PRELIMINARY INJUNCTION AS TO THE SETTLEMENT AGREEMENTS
(ECF # 109, 109-1) (ECF # 168, 168-1)
Currently before the undersigned are the motions of Rob Star, alleged derivative Plaintiff in Case No. 9:17-cv-02489 ("the derivative action"), to oppose the dismissals and enjoin the settlement agreements of the parties in the above-captioned actions during the appeal of the derivative action. The Motions are before the undersigned, sitting as Special Master, pursuant to the March 30, 2018 Order of the United States District Court for the District of South Carolina, the Honorable David C. Norton. I heard the Motions on February 20, 2019, and, having reviewed the memoranda and hearing argument of counsel, I make the following Report and Recommendation.
Mr. Star alternatively asked the Court to hold the settlements in abeyance until the appeal is resolved. (ECF # 109-1 in -00452). However, on March 26, 2019, the Court of Appeals for the Fourth Circuit issued an order holding the appeal in abeyance until the District Court rules on these motions. (Doc 89).
BACKGROUND
The above-captioned actions and the derivative action arise out of the same facts. Oldfield is a private residential and golf community in Bluffton, South Carolina. Plaintiff Oldfield Club operates and maintains the recreational and social facilities in the community, and Plaintiff Oldfield Community Association ("OCA") is a property owners' association. The three actions generally arise out of alleged misconduct by various parties related to the turnover of Oldfield from the developer to the members. OCA and Oldfield Club brought actions related to the alleged misconduct. Mr. Star, a property owner in Oldfield, attempted to intervene in those actions. After the denial of his motion to intervene, he filed a derivative action under Fed. R. Civ. P. 23.1 on the basis that the corporations did not pursue adequate relief and the boards of directors suffered from a conflict of interest. He disagrees with the way OCA and Oldfield Club are pursuing their claims and, while he asserted many of the same causes of action as OCA and Oldfield Club, he also included additional causes of action.
On July 24, 2018, I entered a Report and Recommendation to dismiss the derivative action on the basis that Mr. Star failed to meet the requirements of Fed. R. Civ. P. 23.1. (ECF # 96 in -02489). On September 19, 2018, the District Court adopted the R&R and dismissed the derivative action. (ECF # 115 in -02489). On October 11, 2018, Mr. Star filed a Notice of Appeal to the United States Court of Appeals for the Fourth Circuit. (ECF # 117 in -02489).
The parties in the above-captioned cases entered into settlement agreements. On October 10, 2018, the District Court entered an Order of Dismissal in Oldfield Community Assoc. v. TI Oldfield Development, LLC, Case No. 9:17-cv-00794 ("OCA Case"), providing the parties 60 days to consummate their settlement. (ECF # 166). On November 8, 2018, the parties in the OCA case filed a Motion for Consent Order of Dismissal "pursuant to Rule 42(a)(2)" to dismiss all claims "with prejudice" except for the claims between OCA and Defendant Jamie Selby. (ECF # 167). A few weeks later, on November 26, 2018, Mr. Star filed the instant motion to either deny the consent motion to dismiss or, alternatively, to enjoin the settlement and dismissal of the case until the derivative action appeal is resolved. (ECF # 168, 168-1). Three days later, the parties to the OCA case filed a stipulation of dismissal under Fed. R. Civ. P. "42(a)(1)(A)(ii)" to dismiss with prejudice all claims except for the claims between OCA and Selby. (ECF # 170).
Presumably the parties meant Fed. R. Civ. P. 41(a)(2), which states in part, "Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper."
Presumably the parties meant Fed. R. Civ. P. 41(a)(1)(A)(ii), which states in part, "the plaintiff may dismiss an action without a court order by filing: . . . (ii) a stipulation of dismissal signed by all parties who have appeared."
On November 8, 2018, the parties in Oldfield Club v. TI Oldfield Development, LLC, Civil Action No. 9:17-cv-00452 ("Oldfield Club case") filed a Motion for Consent Order of Dismissal to dismiss all claims "with prejudice" except those between Oldfield Club and Selby or Defendant Elliot Group Holdings, LLC. (ECF # 108). On November 26, 2018, Mr. Star filed a motion opposing dismissal of the case and to enjoin the settlement pending the derivative action appeal. (ECF # 109, 109-1). On December 4, 2018, the parties filed a stipulation of dismissal with prejudice as to all claims except those between Oldfield Club and Selby or Elliot Group Holdings. (ECF # 114).
The issue is whether Mr. Star, as a non-party to the OCA and Oldfield Club cases, can enjoin a settlement and voluntary dismissal of their cases while his derivative action appeal is pending. Mr. Star's argument is based on his status as a proposed derivative plaintiff because the parties' settlements and dismissals with prejudice are binding on his derivative action. All parties agree that the settlements between the parties in the above-captioned actions dismiss with prejudice and waive any and all claims arising between the parties, including claims brought and claims that could have been brought, such that the settlement and dismissal will operate to end any claims Mr. Star may assert as a derivative plaintiff even if his appeal is successful. (ECF # 109-1 pp. 8-9 in -00452). For the reasons stated below, I recommend denying Mr. Star's motions.
"The judgment in an action to which the corporation is a party is binding under the rules of res judicata in a subsequent action by its stockholders or members suing derivatively in behalf of the corporation." Restatement (Second) of Judgments § 59.
DISCUSSION
Mr. Star relies on Fed. R. Civ. P. 65(a) and judicial estoppel as the bases for his motion. (ECF # 109-1 in -00452). He argues that the settlement and voluntary dismissal are attempts to undermine the derivative action appeal. Id. at p. 7. The settling parties argue in opposition that (1) the motion is moot because the court lacks jurisdiction over these cases due to the stipulations of dismissal, (2) Mr. Star is a non-party without standing to enjoin the settlements, and (3) Mr. Star fails to satisfy the elements of a preliminary injunction.
I. Jurisdiction and Mootness
The parties argue the court no longer has jurisdiction over these cases and Mr. Star's motions are moot because they entered stipulations of dismissal under Fed. R. Civ. P. 41(a)(1)(A)(ii). Mr. Star responds that the timing of the stipulations defeats this argument. The parties first filed consent motions to dismiss. They later filed stipulations of dismissal only after Mr. Star filed an opposition to the consent motions and sought to enjoin the settlements. Mr. Star argues his motions pending at the time the parties filed the stipulations leaves the court's jurisdiction intact. (Tr. pp. 44-45). I recommend finding the stipulations of dismissal deprive the court of jurisdiction.
The jurisdictional analysis is two-fold—whether the court retains jurisdiction after the filing of Fed. R. Civ. P. 41(a)(1)(A)(ii) stipulations of dismissal and how, if at all, Mr. Star's status as a derivative plaintiff affects the court's jurisdiction. Fed. R. Civ. P. 41(a)(1)(A)(ii) provides that "the plaintiff may dismiss an action without a court order by filing: . . . (ii) a stipulation of dismissal signed by all parties who have appeared." (emphasis added). The rule does not contemplate a non-party filing an opposition to the stipulation. Rather, it contemplates that "all parties" agree to dismissal, as occurred in these cases. Id.
Generally, "a stipulation filed under Rule 41(a)(1)(A)(ii) is self-executing and dismisses the case upon filing." Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1277-78 (11th Cir. 2012) (collecting supporting authority from eight circuit courts of appeals). "District courts need not and may not take action after the stipulation becomes effective because the stipulation dismisses the case and divests the district court of jurisdiction." Id. at 1278 (citing SmallBizPros, Inc. v. MacDonald, 618 F.3d 458, 463 (5th Cir. 2010) ("Because filing a voluntary stipulation of dismissal under Rule 41(a)(1)(A)(ii) is effective immediately, any action by the district court after the filing of such a stipulation can have no force or effect because the matter has already been dismissed by the parties themselves without any court action.")).
The Supreme Court defined limited circumstances in which a district court may retain jurisdiction after a voluntary stipulation of dismissal. In Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994), the Supreme Court addressed a situation in which the parties entered a voluntary stipulation of dismissal with prejudice under Rule 41(a)(1)(ii) but later filed a motion in district court to enforce the settlement agreement. Id. at 376-77. "Neither the Rule [41(a)(1)(ii)] nor any provision of the law provides for jurisdiction of the court over disputes arising out of an agreement that produces the stipulation." Id. at 378. However, the Court explained how a district court may retain jurisdiction—"if the parties' obligation to comply with the terms of the settlement agreement had been made part of the order of dismissal—either by separate provision . . . or by incorporating the terms of the settlement agreement in the order." Id. at 381. The distinction is that, in these situations, compliance with the settlement agreement is part of an order entered by the court rather than a document filed by the litigants. Id. at 381-82. Kokkonen holds that "a district court may incorporate or embody the terms of a settlement agreement in a dismissal order or expressly retain jurisdiction over a settlement agreement by clearly indicating such intent in a dismissal order." SmallBizPros, Inc. v. MacDonald, 618 F.3d 458, 462-63 (5th Cir. 2010).
Rule 41(a)(1)(ii) allowed "filing a stipulation of dismissal signed by all parties who have appeared in the action" and is a predecessor to Fed. R. Civ. P. 41(a)(1)(A)(ii).
The Court noted that some courts exercise jurisdiction under Fed. R. Civ. P. 60(b)(6) to address the breach of an agreement that was the basis of the dismissal. Mr. Star did not file a motion under Fed. R. Civ. P. 60(b) and did not move to vacate the settlement agreements.
Here, the district court did not enter a dismissal order. There is no court order that either incorporated the parties' settlement agreements into a dismissal order or expressly retained jurisdiction over the settlement agreements. The parties' stipulations of dismissal state "the Court retains jurisdiction solely to enforce the terms of the settlement agreement, if necessary" (ECF # 114 in -00452), and "in accordance with the Settling Parties' agreement, the Court retains jurisdiction to enforce the terms of the settlement agreement if necessary" (ECF # 170 in -00794). I recommend finding this is insufficient to retain jurisdiction because the Court did not enter an order and, further, even if it is sufficient, jurisdiction is retained only to "enforce" the settlement agreements and not to enjoin them on a non-party's motion.
The cases that discuss the district court's jurisdiction after the filing of a stipulation of dismissal involve a party seeking to enforce or vacate the settlement agreement. This case involves neither. While I am unable to find a case involving a Rule 41(a)(1)(A)(ii) stipulation of dismissal in which a non-party who is an alleged Rule 23.1 derivative plaintiff in a separate action requests the court enjoin the settlement, I believe the reasoning of the above-cited cases applies to this situation. That the person asking the court to exercise jurisdiction is a purported derivative plaintiff in a separate action does not confer jurisdiction where none exists. See Kokkonen, 511 U.S. at 377 ("Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." (internal citations omitted)). In sum, I do not believe that a competing derivative action under Fed. R. Civ. P. 23.1 can confer jurisdiction where it would not otherwise exist.
I also recommend rejecting Mr. Star's argument that the existence of his pending motions to enjoin at the time the parties filed the stipulations of dismissal preserves the court's jurisdiction. Underlying this argument is Mr. Star's assertion that he is entitled to file motions in a case in which he is not party based on the "related" status of the three cases in the court's electronic filing system. (Tr. pp. 45-48). That is not the purpose of a "related" case status. The clerk of court determines if two or more cases are entered into the electronic filing system as "related" "based on a determination of whether the cases arise from the same or identical transactions, happenings, or events; involve the identical parties or property; or for any other reason would entail substantial duplication of labor if heard by different judges." Local Civ. Rule 26.01(E) (D.S.C.). Mr. Star argued that the related status gives him "a right to be involved in litigation within it to the extent that it is injurious to us as a related case." (Tr. p. 48). Based on the plain language of the Local Rule that a related status is based on avoiding duplication of labor if heard by different judges, I disagree with Mr. Star's argument.
I recommend finding the court lacks jurisdiction over these cases and, consequently, the motions are moot. In the event the district court disagrees, I address the remaining arguments.
II. Standing
The parties argue that Mr. Star does not have standing to seek relief in these cases because he is a non-party and the court denied his prior attempt to intervene. Mr. Star argues that he does not have to be a party in these cases to have standing to seek an injunction. I recommend that, if the court finds it retained jurisdiction, then it find Mr. Star demonstrates standing.
As a general rule, only named parties to the case in the district court and those permitted to intervene may appeal an adverse order or judgment. Indeed, it is typically only parties who are bound by a judgment and sufficiently aggrieved by it who possess constitutional and prudential standing to seek appellate review of the district court's decision.Co. Doe v. Pub. Citizen, 749 F.3d 246, 257 (4th Cir. 2014) (internal citation omitted). The Fourth Circuit "recognized an exception to the general rule that permits a nonparty to appeal a district court's order or judgment when the appellant (1) possessed 'an interest in the cause litigated' before the district court and (2) 'participated in the proceedings actively enough to make him privy to the record.'" Id. at 259 (quoting Kenny v. Quigg, 820 F.2d 665, 668 (4th Cir. 1987)). While the issue in this case involves standing to seek a preliminary injunction and not an appeal, I believe the reasoning in Kenny and Co. Doe is equally applicable here because the parties agree that Mr. Star is bound by the dismissals and settlement agreements.
I recommend the court find Mr. Star satisfies the exception to the general rule that a non-party and non-intervenor is without standing. Mr. Star possessed an interest in the actions litigated in the district court because all three actions arise out of the same set of facts. Mr. Star participated in the proceedings actively enough to make him privy to the record as he received notice of filings and remained aware of the activity in the above-captioned cases. Therefore, if the court reaches this issue, I recommend it find that Mr. Star has standing to oppose the dismissals and make the motions to enjoin the settlement agreements.
In the event the district court reaches the merits of Mr. Star's motions, his arguments are addressed below.
III. Judicial Estoppel
Mr. Star argues that judicial estoppel compels the entry of injunctions because the settlement agreements and stipulations of dismissal are an effort to undermine the integrity of the judicial process to defeat his appeal. (ECF # 109-1 p. 7 in -00452). I recommend the court find that the doctrine of judicial estoppel is not applicable to the factual scenario before it.
"'Judicial estoppel precludes a party from adopting a position that is inconsistent with a stance taken in prior litigation. The purpose of the doctrine is to prevent a party from playing fast and loose with the courts, and to protect the essential integrity of the judicial process.'" Rosmer v. Pfizer, Inc., 2001 U.S. Dist. LEXIS 6678, *8, 2001 WL 34010613 (D.S.C. March 30, 2001) (quoting Lowery v. Stovall, 92 F.3d 219, 223 (4th Cir. 1996)). Mr. Star discusses the purpose of judicial estoppel in his memoranda but does not make any argument that a position taken by the parties now is inconsistent with a position taken in prior litigation. (ECF # 109-1 p. 7 in -00452). Therefore, I recommend the court find that judicial estoppel is not applicable to these motions.
IV. Fed. R. Civ. P. 65(a) Preliminary Injunction
Mr. Star's main argument is that he is entitled to a preliminary injunction under Fed. R. Civ. P. 65(a) because, if the settlement agreements are not enjoined, his case will end. "A preliminary injunction is an extraordinary remedy, to be granted only if the moving party clearly establishes entitlement to the relief sought." Hughes Network Sys. v. Interdigital Commc'ns Corp., 17 F.3d 691, 693 (4th Cir. 1994). "[C]ourts considering whether to impose preliminary injunctions must separately consider each Winter factor." Pashby v. Delia, 709 F.3d 307, 320-21 (4th Cir. 2013) (referring to Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7 (2008)). A party seeking a preliminary injunction must "demonstrate that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm, (3) the balance of hardships tips in their favor, and (4) the injunction is in the public interest." Pashby, 709 F.3d at 320. "To obtain a preliminary injunction under the Winter test, a movant must make a clear showing of the four requirements." Sierra Club & S.C. Wildlife Fed'n v. Kolnitz, 2017 U.S. Dist. LEXIS 128462, *14, 2017 WL 3480777 (D.S.C. Aug. 14, 2017) (internal quotation and alteration marks omitted). The context of this case does not fit within the normal preliminary injunction analysis because a preliminary injunction is usually issued at the beginning of a case to remain in effect until its resolution. Mr. Star asks for an injunction of these cases while his separate case is pending on appeal. Further, the context of the case shapes the analysis of the Winter factors. The competing parties represent harm or injury to the same entities—Oldfield Club and OCA—because Mr. Star is attempting to bring a derivative action on their behalf.
Mr. Star cites to Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977), for the preliminary injunction standard, specifically arguing that the balance of hardships is in his favor and thus reduces his burden of proving a likelihood of success on the merits. (ECF # 109-1 pp. 8-9 in -00452). While this analysis is stated in Blackwelder, that case was overruled by Winter and the Fourth Circuit's subsequent opinions in Pashby and The Real Truth About Obama, Inc. v. FED, 575 F.3d 342, 347 (4th Cir. 2009). Pashby, 709 F.3d at 320-21.
A. Likelihood of Success on the Merits
The question arises what "merits" are at issue—the merits of the appeal or of one or all of the underlying cases. Mr. Star argues the merits are the appeal (Tr. pp. 9-10), and I agree with him because he requests an injunction that ends when the appeal is resolved. There is already an order on the success of the merits—the prior R&R and the District Court's order adopting it. (ECF # 96, 115 in -02489). Based on those orders, I recommend finding that Mr. Star does not demonstrate a likelihood of success on the merits.
B. Irreparable Harm
The element of irreparable harm is irregular in the context of this case. Mr. Star brings the case in a derivative capacity on behalf of the corporations but the corporations oppose his case and want to represent themselves. The irreparable harm at issue is the harm to the corporations. See Brown v. Stewart, 348 S.C. 33, 49, 557 S.E.2d 676, 684 (Ct. App. 2001) ("A shareholder's suit is derivative if the gravamen of his complaint is an injury to the corporation and not to the individual interest of the shareholder." (internal quotation marks omitted)). Mr. Star argues the irreparable harm is that the rights and claims which the corporations have not asserted in the above-captioned actions will be lost if the settlements are effectuated. (ECF # 109-1 pp. 9-12 in -00452). The corporations argue that they will suffer irreparable harm if an injunction is issued because they have already performed the settlement by exchanging a seven-figure sum, recording various property rights and mortgages, and instituting a foreclosure. (Tr. pp. 30-33). I recommend finding Mr. Star does not make a sufficient showing of irreparable harm of the corporations where their boards of directors have already determined settlement is in the corporations' best interests and the possibility of halting or undoing the settlements is questionable and costly.
C. Balance of Hardships
"In considering the balance of the equities between the parties, traditionally the court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the relief requested." Sierra Club & S.C. Wildlife Fed'n v. Kolnitz, 2017 U.S. Dist. LEXIS 128462, *23, 2017 WL 3480777 (D.S.C. Aug. 14, 2017) (internal quotation marks omitted). Mr. Star argues his derivative action will be over if the injunction is not issued. The parties argue they will suffer if the settlement is enjoined because they have performed the settlement by putting into motion various property rights and exchanging money.
In considering this factor, I question whether granting Mr. Star's injunction would make a difference because he does not cite to any authority stating that, even as the derivative plaintiff, he is empowered to stop the parties from settling the claims between them. (Tr. pp. 14-16) See S.C. Code Ann. § 33-31-302(1) (providing a non-profit corporation in South Carolina has the power "to sue and be sued, complain, and defend in its corporate name"). Enjoining the settlements pending the appeal is meaningful only if, upon winning his appeal, Mr. Star could prevent the parties from consummating the settlements. When asked at the hearing who gets to decide whether to settle if Mr. Star wins the derivative action appeal, Mr. Star answered that he, "in conjunction with the constituency that he has", decides settlement if the boards' conduct is ultra vires. (Tr. p. 16). In other words, his position is that the boards can still settle the cases so long as their conduct in settlement is not ultra vires. However, he cites to no authority for this position and does not articulate how such a framework would operate. I recommend finding the balance of hardships does not tip in Mr. Star's favor as a derivative plaintiff where the corporations' boards have chosen to settle and performed the settlement.
D. Public Interest
"The Supreme Court has admonished that 'courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of an injunction.'" Sierra Club, 2017 U.S. Dist. LEXIS 128462, *24-25 (quoting Winter, 555 U.S. at 24). Mr. Star argues there is a public interest in "the ability to conclude his appeal before the Fourth Circuit" as a "right of due process" and that there is a "public interest in having trust in these types of institutions, these gated communities, the obligations of the boards to their members." (Tr. pp. 19-20; ECF # 109-1 p. 12 in -00452). The parties, on the other hand, argue that "public interest supports that democratic election process [of the boards of directors] making the decisions as opposed to a member who wants to jump in on it and make those decisions for the community." (Tr. p. 29). I recommend finding Mr. Star does not make a clear showing of a public interest in the extraordinary remedy of an injunction. While denying the injunctions will end the derivative action, the corporations on whose behalf he brought the derivative action received due process through their own cases. South Caroling has a "strong public policy favoring the settlement of disputes." Chester v. S.C. Dep't of Pub. Safety, 388 S.C. 343, 346, 698 S.E.2d 559, 560 (2010). The boards of directors, elected by the community members after the turnover of the development to the members, chose to bring actions for the corporations and to settle those actions. I do not believe it is in the public interest to allow a member to question those decisions by way of a separate derivative action that requires enjoining settlements entered into by private parties.
I recommend the court deny Mr. Star's motion for a preliminary injunction on the merits.
V. Sanctions
Various parties ask the court to use its inherent powers or Fed. R. Civ. P. 11 to sanction Mr. Star for filing these motions on the basis that they are frivolous and lack a reasonable basis. (ECF #s 173 and 176 in -00794). If the court lacks jurisdiction over these cases, then it also lacks jurisdiction to award sanctions. Regardless, I recommend denying the request for sanctions.
The parties argue the court should exercise its inherent power to sanction for "'conduct which abuses the judicial process.'" (ECF # 176 p. 9 in -00794). I do not find any conduct which abuses the judicial process. As noted in the R&R on the motion to dismiss the derivative action, I am unable to find "another case factually on point, specifically one in which the corporation was pursuing litigation arising out of the same events giving rise to the derivative action but the derivative plaintiff wanted the corporation to pursue additional remedies." (ECF # 96 p. 8, -02489). I am also unable to find a case discussing the effect of a settlement by the corporation when there is a competing derivative action. Given the absence of case law and these unique circumstances, opposing or enjoining the settlements was Mr. Star's only option to save his case.
As to Fed. R. Civ. P. 11 sanctions, it is questionable whether the request for sanctions in the parties' oppositions to Mr. Star's motions are proper because "[a] motion for sanctions must be made separately from any other motion." Fed. R. Civ. P. 11(c)(2). Regardless, I do not think Mr. Star's opposition to dismissal and motion to enjoin the settlements is sanctionable conduct.
Reasonableness of a filing party's actions under Rule 11 involves an objective inquiry into the prefiling investigation. Legal allegations fail the requirements of Rule 11(b)(2) when there is absolutely no chance of success under the existing precedent. In order to warrant sanctions, the legal position must be completely untenable, rather than merely unsuccessful. The issue is whether a reasonable person under the same circumstances would have believed his or her actions to be legally justified.Cox v. Deal, 2011 U.S. Dist. LEXIS 85757, *5, 2011 WL 3418397 (D.S.C. Aug. 3, 2011) (internal citations and quotation marks omitted). Mr. Star's legal position is merely unsuccessful and not completely untenable. A reasonable person under the same circumstances would have believed his actions legally justified as the only avenue to save his appeal. I recommend the court deny the requests for sanctions.
CONCLUSION
After careful consideration of the parties' arguments, I recommend that the Court deny the opposition to the dismissals and motions to enjoin the settlements.
Respectfully submitted this 9th day of April, 2019.
/s/_________
Kathleen C. Barnes, Special Referee