United States District Court, S.D. Georgia, Savannah Division
HILLARY N. FITZHUGH, Plaintiff,
AB MCDONOUGH'S, INC., and WILLIAM R. LEE, Sr., Defendants.
HONORABLE J. RANDAL HALL UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's motion to enforce settlement
agreement. (Doc. 28.) To date, Defendants have failed to
oppose or otherwise respond to Plaintiff's motion.
Accordingly, Plaintiff's motion is deemed unopposed.
See LR 7.5, SDGa. Nevertheless, upon due
consideration of the merits of Plaintiff's motion, the
motion is GRANTED.
was employed in 2014 as a bartender by Defendant AB
McDonough's, Inc., d/b/a Billy's Place
("McDonough1s"). (Am. Compl., Doc. 19, ¶ 11.)
Plaintiff alleges that, during the term of her employment,
she was subjected to a hostile work environment and was
sexually harassed by McDonough's owner, co-Defendant
William R. Lee, Sr. (Id. ¶ 12.). Plaintiff also
alleges that she was improperly forced to split her tips with
her manager, non-party Alan Larkin, in violation of the Fair
Labor Standards Act ("FLSA"). (Id.
16, 2016, Plaintiff initiated the present action against
Defendants. (Doc. 1.) While discovery was ongoing, the
parties entered settlement negotiations. On October 26, 2016,
the parties - through their counsel of record - settled
Plaintiff's claims through email. (Doc. 28, Exs. A-D.)
The parties subsequently drafted a formal written settlement
agreement to be executed by both parties, as well as a
"confession of judgment" consent judgment to be
entered in the Superior Court of Chatham County, Georgia in
the event of Defendants' breach of the settlement
agreement. (Id., Exs. E, F, G.) During the
negotiation of this formal settlement agreement,
Defendants' counsel attempted to insert an additional
material term that had not been previously agreed to by
Plaintiff on October 26, 2016; Plaintiff's counsel
refused to include this additional term. Nevertheless, on
November 15, 2016, Defendants' counsel agreed to the
terms of the formal written settlement agreement without this
additional term. (Id., Exs. H, H-l.) Significantly,
as part of the settlement agreement, Defendants were to make
a total payment to Plaintiff in the amount of $10 3, 000.00
by way of monthly payments; Defendants' first payment
thereunder, in the amount of $4, 291.67, was due on or before
December 15, 2016. (Id., Exs. H-l.)
subsequently executed the settlement agreement (and
"confession of judgment" consent judgment),
electronic copies of which were sent to Defendants'
counsel on or about November 28, 2016. (Id., Ex. I;
see also id., Exs. J, K.) On December 14, 2016,
Plaintiff's counsel emailed Defendants' counsel
inquiring as to Defendants' execution of the settlement
agreement and noting that the first payment thereunder was
due the following day. (Id., Ex. K.) Later that same
day, Defendants' counsel informed Plaintiff's counsel
that Defendants intended to observe their obligations under
the terms of the settlement agreement but were refusing to
sign the settlement agreement without a confidentiality
provision. (Id., Ex. 0.) On December 15, 2016,
Defendants had a check hand-delivered to the office of
Plaintiff's counsel as per the terms of the settlement
agreement. (IdJ On December 20, 2016, Plaintiff's counsel
emailed Defendants' counsel stating that she had received
the first payment under the settlement agreement but not the
signed settlement agreement itself and that - if the signed
agreement was not received by the following morning - she
would be preparing a motion to enforce settlement and
requesting attorney's fees in connection with that
motion. (Id., Ex. N; see also id., Exs. L,
M.) When Defendants failed to timely execute and return the
settlement agreement, Plaintiff filed the present motion to
enforce. (Doc. 28.)
Motion to Enforce Settlement Agreement
courts "use the applicable state's contract law to
construe and enforce settlement agreements." Vinnett
v. Gen. Elec. Co., 271 F.App'x 908, 912 (11th Cir.
2008) (citing Ins. Concepts, Inc. v. W. Life Ins.
Co., 639 F.2d 1108, 1111-12 (5th Cir. 1981)). Under
Georgia law, "in order to succeed on a motion to enforce
a settlement agreement, a party must show the court that the
documents, affidavits, depositions and other evidence in the
record reveal that there is no evidence sufficient to create
a jury issue on at least one essential element of the
[non-movant's] case.'' DeRossett Enterprises,
Inc. v. Gen. Elec. Capital Corp., 621 S.E.2d 755, 756
(Ga.Ct.App. 2005) (internal quotation and citation omitted).
Because the same standards apply to a motion to enforce
settlement agreement as a motion for summary judgment, the
Court views the evidence in the light most favorable to the
non-moving party, Defendants. See id.
settlement agreement is a contract, and it must meet the same
requirements of formation and enforceability as other.
contracts." Id. (internal quotation and
citation omitted); see also Moreno v. Strickland,
567 S.E.2d 90, 92 (Ga.Ct.App. 2002) ("A definite offer
and complete acceptance, for consideration, create a binding
contract." (citation omitted)). "Only when a
meeting of the minds exists will an agreement be
formed." DeRossett Enterprises, Inc., 621
S.E.2d at 756. "However, the law favors compromise, and
when parties have entered into a definite, certain, and
unambiguous agreement to settle, it should be enforced."
Id. (internal quotation, citation, and punctuation
omitted); see also Scott v. Carter, 521 S.E.2d 835,
837 (Ga.Ct.App. 1999) ("Where the very existence of the
[settlement] agreement is disputed, it may only be
established by a writing. Ideally, the writing requirement
will be met by a formal agreement signed by the parties.
However, letters or documents prepared by attorneys which
memorialize the terms of the agreement reached will
suffice."). In Georgia, "an attorney!s
consent to [a settlement] agreement is binding on his
client." Wong v. Bailey, 752 F.2d 619, 621
(11th Cir. 1985) (citing Stone Mountain Confederate
Monumental Association v. Smith, 170 Ga. 515, 521, 153
S.E. 209, 211 (1930)).
the Court finds that there was a meeting of the minds between
the parties regarding settlement as reflected in the October
26, 2016 emails between the parties' respective counsel.
(See Doc. 28, Ex. A-D.) This meeting of the minds was even
further crystalized in the form of the formal written
settlement agreement signed by Plaintiff which was delivered
to Defendants on November 28, 2016, the form and content of
which was agreed to by Defendants' counsel on November
15, 2016. (Id., Exs. H, H-l, I.) Moreover,
Plaintiff has fully evidenced - and the Court concludes -
that there was an offer and complete acceptance, for
consideration, and therefore a binding contract. See
Moreno, 567 S.E.2d at 92. Defendants have made no
attempt to contradict these showings or otherwise demonstrate
a genuine issue of material fact. Therefore, Plaintiff is
entitled to judgment in its favor on its motion to enforce
Motion for Sanctions
addition to requesting the Court to enforce the parties'
settlement agreement, Plaintiff has also requested the Court
to require Defendants to pay that portion of Plaintiff's
attorneys fees associated with the preparation of Plaintiff s
present motion. (Doc. 28, at 5-6.) Plaintiff's counsel
has submitted an affidavit in support, attesting that 2.1
hours - at a rate of $200.00 per hour - was spent in
preparing the motion. (Doc. 28, Ex. P.) Accordingly,
Plaintiff requests that Defendants be obligated to pay
Plaintiff $420.00 as sanctions for their bad faith refusal to
sign the settlement agreement (which necessitated
Plaintiff's present motion).
the route typically travelled in these circumstances in
Georgia, O.C.G.A. § 9-15-14, "is unavailable to
civil litigants in federal court." Bruce v. Wal-Mart
Stores, Inc., 699 F.Supp. 905, 906 (N.D.Ga. 1988)
(citing Union Carbide Corp. v. Tarancon Corp., 682
F.Supp. 535, 544 (N.D.Ga. 1988)). As well, sanctions under
Federal Rule of Civil Procedure Rule 11 are unavailable
because Plaintiff's request does not concern a pleading,
written motion, or other paper filed by Defendants.
See Fed.R.Civ.P. 11(b) & (c) . The federal
courts, however, do have the inherent power to impose
sanctions against a party for "litigation
misconduct" where a party has acted in bad faith by,
"inter alia, delaying or disrupting the
litigation or hampering enforcement of a court order."
Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc.,
561 F.3d 1298, 1306 (11th Cir. 2009); see also Byrne v.
Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001) ("This
power is derived from the court's need to manage its own
affairs so as to achieve the orderly and expeditious
disposition of cases. . . . One aspect of a court's
inherent power is the ability to assess attorneys' fees
and costs against the client or his attorney, or both, when
either has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons/' (internal ...