United States District Court, S.D. Ohio, Western Division, Dayton
Herbert Rice District Judge.
REPORT AND RECOMMENDATIONS ON MOTION TO ENFORCE
Michael R. Merz United States Magistrate Judge.
case is before the Court on Defendant Assurant's Motion
to Enforce Settlement (ECF No. 39). Assurant filed and served
that Motion on December 16, 2016. The Court then advised
Plaintiffs of their opportunity to oppose the Motion and that
the deadline for filing an opposition was January 9, 2017
(Order to Pro Se Plaintiffs, ECF No. 40). Plaintiffs have
failed to file any opposition. Since granting the Motion will
result in a judgment, the Motion requires analysis, rather
than a reflexive grant for lack of opposition. S. D. Ohio
Civ. R. 7.2(a)(2). Because the Motion seeks entry of
judgment, the Magistrate Judge treats it as a dispositive
motion on which he is required to enter a recommendation,
rather than a decision. See 28 U.S.C. § 636(b).
sued Assurant along with Nationstar Mortgage LLC and Caliber
Home Loans, Inc., regarding property at 41 North Pleasant
Street in Enon, Ohio. The claim made against Assurant was
that, having been hired by Caliber to inspect damage at this
property, Assurant failed to do so properly (Complaint, ECF
No. 2, ¶ 15). After answering the Complaint, Assurant
shows through the Declaration of its attorney, Peter J.
Georgiton, that it entered into settlement negotiations with
Plaintiffs and offered to pay them $1, 223.00 to settle their
claims, contingent on making the settlement check jointly
payable to Plaintiffs and Caliber Homes, release of all
claims, and dismissal of Assurant with prejudice. On October
21, 2016, Plaintiff Patricia Ray accepted that offer on
behalf of Plaintiffs. Defendants' counsel sent a
settlement agreement and followed up several times, but has
received no further response from Plaintiffs.
courts have authority to compel enforcement of an agreed
settlement in summary fashion, whether or not written.
Bowater North American Corp. v. Murray Machinery,
Inc., 773 F.2d 71 (6th Cir. 1985); Aro Corp. v.
Allied Witan Co., 531 F.2d 1368 (6th Cir.
1976). If there is a factual dispute about the content of the
settlement, an evidentiary hearing must be held to determine
what those terms are. Kukla v. National Distillers
Products Co., 483 F.2d 619 (6th Cir. 1973). But here the
Plaintiffs have not responded in any way to raise a question
of fact about whether they agreed to a settlement.
A settlement agreement is a type of contract and is therefore
governed by contract law. Bamerilease Capital Corp. v.
Nearburg, 958 F.2d 150, 152 (6th Cir. 1992).
"Questions of contract interpretation are generally
considered questions of law subject to de novo
review." Golden v. Kelsey-Hayes Co., 73 F.3d
648, 653 (6th Cir. 1996). "[W]e review the district
court's decision to grant a motion to enforce the
settlement . . . for abuse of discretion, " after
reviewing "for clear error the district court's
factual determination that the parties had agreed to
settlement terms." Re/Max Int'l, Inc. v. Realty
One, Inc., 271 F.3d 633, 645 (6th Cir. 2001).
Neely v. Good Samaritan Hosp., 2009 U.S. App. LEXIS
17060 (6th Cir. Ohio 2009).
Assurant's unopposed motion to enforce, it is hereby
respectfully recommended that the Court enter judgment
enforcing the settlement as follows:
(1) Directing Assurant to pay Plaintiffs, in the amount of
$1223.00, in a check made jointly payable to Plaintiffs and
Defendant Caliber Home Loans, Inc. The Order should also note
that the payment may be made by Assurant's affiliate,
(2) Dismissing Plaintiffs' claims against Assurant, Inc.,
in the above-captioned action with prejudice.
(3) Releasing Assurant, Inc., and Standard Guaranty from any
claims Plaintiffs may have against them.
Plaintiffs' claim against Assurant is the sole remaining
claim in the case, the Court should make its enforcement
order part of a judgment that is final under Fed.R.Civ.P. 54.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within fourteen days after being served with
this Report and Recommendations. Pursuant to Fed.R.Civ.P.
6(d), this period is extended to seventeen days because this
Report is being served by mail. .Such objections shall
specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in
whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections within fourteen days after being ...