Case No. C06-5669RJB.
February 1, 2008
For the Plaintiff: Terry Venneberg, Attorney at Law, Tacoma, Washington.
Kenneth Friedman, Friedman Rubin White, Bremerton, Washington.
For the Defendant: L. Julius M. Turman, Morgan Lewis, San Francisco, California.
Stephanie Berntsen, Schwabe Williamson Wyatt, Seattle, Washington.
Also Present: Deborah Dodson, Plaintiff, Sonja Banerji, Morgan Stanley Representative.
Transcriptionist: Crystal R. McAuliffe, Washington License No. 2121, Bremerton, Washington.
ORDER GRANTING MOTION TO ENFORCE SETTLEMENT AGREEMENT
This matter comes before the court on the above-referenced motion (Dkt. 155). The court is familiar with the records and files herein and documents filed in support of and in opposition to this motion.
On December 7, 2007, the court held a Pretrial Conference. Near the conclusion of that case, settlement was discussed and the parties requested a reference to a magistrate judge for a settlement conference ( See Dkt. 149). The court inquired of Chief Magistrate Judge J. Kelley Arnold about the possibility of a judicial settlement conference, and Judge Arnold was available and issued a scheduling order for a settlement conference ( See Dkt. 140). Judge Arnold set the settlement conference for December 11, 2007 at 9:30 a.m.
The record indicates that at that time, counsel, the plaintiff, and a representative of the defendant met with Judge Arnold and discussed and negotiated a settlement. Agreement was reached by 3:40 p.m on December 11, 2007, and Judge Arnold, with the attendees, made a record of the proceedings and the agreed settlement. Those proceedings were recorded by a court reporter and have been transcribed. A transcript of those proceeds is attached hereto as Exhibit A, and is, by this reference, made a part of this order.
After the events of the settlement conference, the undersigned was advised that the case had settled and therefore struck the December 17, 2007 trial date.
Following the announced settlement, the parties exchanged numerous documents and correspondence, and the pleadings in support of and in opposition to the pending motion. Those records reflect an attempt to modify and alter the terms of the announced settlement agreement. While counsel for the plaintiff participated in those post-settlement discussions and correspondence, no additional terms were agreed to by the parties, and the plaintiff now comes before the court asking the court to enforce the settlement agreement reached and placed on the record before Judge Arnold on December 11, 2007.
The exchange between Judge Arnold and counsel is clear from the transcript of those proceedings. A full, final, and all-inclusive settlement was reached and counsel for plaintiff, the plaintiff, and counsel for the defendant agreed to the full, final and all-inclusive settlement as stated on the record by Judge Arnold. This was done in the presence of a representative of the defendant.
Defense counsel argues that, after acceptance of the agreement, the following statement made by Mr. Turman is some indication that the settlement was not "full, final and all-inclusive": "The parties will, following today's, um, written record we will be reducing the actual agreement to a written instrument." There was no reference to any proposed additions to the agreement made on the record; Mr. Turman's statement referenced "the actual agreement," which apparently was the agreement that counsel had just agreed upon.
If the agreement, as stated by Judge Arnold was not "full, final and all-inclusive, counsel should have so indicated at the brief hearing before Judge Arnold. No one indicated in any way that the settlement was not "full, final and all-inclusive." In fact, Mr. Turman stated that Judge Arnold's statement "is an accurate representation of the agreement, it's accepted." His reference to "the actual agreement" and to "a written instrument" in no way modified, or placed conditions on, his acceptance of the settlement.
This matter is about as close to "on all fours" with Doi v. Halekulani Corporation, 276 F.2d 1131 (9th Cir. 2002), as courts ever see. In accord with Doi, the oral agreement made in open court on the record containing all the material terms of the settlement agreement should be enforced by the court.
Plaintiff's motion should be granted, and also consistent with Doi, judgment should be entered in favor of the plaintiff and against the defendant in the sum of $750,000.00. In exchange for said sum, the plaintiff should issue a release of all claims to defendants as she agreed, and should also issue a satisfaction of judgment to defendants in exchange for receipt of said funds.
The release filed as Exhibit B (Dkt. 156-3) appears to be an appropriate release of all claims consistent with the settlement agreement, except that the fourth paragraph, which references a 21-day period, should be stricken from the release form.
Therefore, it is now ORDERED that
(1) Plaintiff's Motion to Enforce Settlement Agreement (Dkt. 155) is GRANTED;
(2) The clerk is directed to enter judgment for plaintiff and against defendant in the sum of $750,000.00;
(3) Upon receipt of said funds, plaintiff should deliver to defendants a Release of All Claims as well as a Satisfaction of said Judgment.
The Clerk of the Court is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address
Exhibit AIN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA DEBORAH J. DODSON, Plaintiff, v. CASE No. 3:06-cv-05669-RJB MORGAN STANLEY DW INC., Defendant. CD TRANSCRIPTION OF SETTLEMENT PROCEEDINGS December 11, 2007 Chief Magistrate Judge J. Kelley Arnold United States District Court Tacoma, Washington CRYSTAL R. McAULIFFE CERTIFIED COURT REPORTER
THE COURT: For the benefit of counsel, this hearing is being electronically recorded. This is Cause No. C-06-5669. It is a case assigned for trial to Judge Robert Bryan. The file date is scheduled for December 17th. The matter was referred to myself for the purpose of conducting a settlement conference.
The record should reflect that the parties did appear here at Union Station, the U.S District Court in Tacoma for settlement conference promptly as requested by the court.
For the record, those in attendance were the plaintiff, Deborah Dodson; her attorneys, Terry Venneberg and Ken Friedman; defense counsel, Stephanie Berntsen and Julius Turman, were present; and is it Sonja —
MS. BANERJI: Banerji.
THE COURT: — Banerji. Thank you. I didn't want to do it wrong. Sonja Banerji from Morgan Stanley, the defendant, was present as well.
The parties commenced a discussion with myself as a settlement conference judge or mediator at 9:30 this morning. It is now 3:40 in the afternoon, and the parties have reached a full and final agreement. We're here to place that matter on the record.
It is my understanding that the parties have agreed to settle the plaintiff's claim for a total sum of $750,000. This sum is all-inclusive and would be an exchange for a complete release of all claims by the plaintiff.
Let me first ask, Counsel, Mr. — excuse me, I'm losing my voice. Mr. Venneberg, is that an accurate recitation of the settlement as you understand it?
MR. VENNEBERG: As I understand it, your Honor, yes.
THE COURT: And, Mr. Turman, is that an accurate representation of the agreement as you understand it?
MR. TURMAN: Your Honor, that is an accurate representation of the agreement, it's accepted. The parties will, following today's, um, written record we will be reducing the actual agreement to a written instrument.
THE COURT: And, Ms. Dodson, as the plaintiff, I need to ask you: Are you satisfied with the settlement agreement?
MS. DODSON: Yes.
THE COURT: Has anyone pressured you in any way?
MS. DODSON: No.
THE COURT: All right. Thank you. Is there anything else that counsel feels need to be placed on the record either from the plaintiff or the defense?
MR. FRIEDMAN: No, your Honor.
MR. VENNEBERG: No, your Honor.
THE COURT: Ms. Berntsen? Mr. Turman?
MR. TURMAN: Nothing further, your Honor.
THE COURT: All right. I will then notify Judge Bryan's chambers that the matter has been resolved and that the trial date may be stricken. Thank you, we'll be at recess.
[The settlement proceedings concluded.]
CERTIFICATESTATE OF WASHINGTON ) ) ss COUNTY OF KITSAP ) I, Crystal R. McAuliffe, a Notary Public in and for the State of Washington, do hereby certify:
That the foregoing transcript was transcribed by me;
That the foregoing transcript is a verbatim report of the proceedings from CD, except for the inaudible sections thereto noted in the transcript by "[indecipherable]," to the best of my ability.
I further certify that I am in no way related to any party to this matter nor to any of Counsel, nor do I have any interest in the matter.