United States District Court, D. Massachusetts
ORDER ON PLAINTIFF'S MOTION FOR RELIEF FROM ORDER
AND REQUEST FOR LEAVE TO SERVE MICHAEL FRANK AND
DEFENDANT'S CROSS-MOTION TO ENFORCE THE SETTLEMENT
Dennis Saylor IV United States District Judge
an employment discrimination action. In 2013, plaintiff Elson
DeBarros was terminated from his position as a line and prep
cook at Areas USA, LLC. The complaint alleges three claims
for disability discrimination and retaliation arising under
the Americans with Disabilities Act against Areas USA and his
former supervisor, Michael Frank. (Compl. at 16).
before the court are (1) plaintiff's motion for relief
from the settlement order of dismissal and request for leave
to serve Michael Frank, and (2) defendant's cross-motion
to enforce the settlement agreement.
Plaintiff's Motion for Relief from the Settlement Order
of Dismissal and Defendant's
Cross-Motion for Enforcement of the Settlement
January 9, 2017, the Court referred this matter for an
alternative dispute resolution hearing. On March 13, 2017,
the parties participated in a mediation facilitated by Senior
District Judge Edward F. Harrington. Plaintiff was present at
the mediation and was represented by counsel. Following the
mediation, Judge Harrington reported to the Court that the
case had settled. On March 15, 2017, the Court entered a
settlement order of dismissal.
April 14, 2017, plaintiff filed a pro se motion for
relief from that order. Areas USA opposes plaintiff's
motion and has cross-moved to enforce the settlement
hearing on these motions, plaintiff argued that he should not
be required to honor the settlement agreement because the
proposed amount is insufficient to cover his damages.
However, “[d]efeated expectations” as to the
amount of recovery “do not . . . entitle [a] litigant
to repudiate commitments made to opposing parties or to the
court.” Petition of Mal de Mer Fisheries,
Inc., 884 F.Supp. 635, 640 (D. Mass. 1995) (quoting
Petty v. Timken Corp., 849 F.2d 130, 133 (4th Cir.
1988)). There is no evidence that plaintiff was under duress
during the mediation, that he was fraudulently induced to
agree to a settlement, or that the mediation process was
otherwise defective. See Massey v. Stop & Shop
Companies, Inc., 1998 Mass.App. Div. 117 (Dist. Ct.
1998). The fact that the settlement is less than plaintiff
hoped to recover does not justify relief from an otherwise
plaintiff contends, should the fact that there is no document
memorializing the agreement render the settlement
unenforceable. Under Massachusetts law, “an enforceable
settlement agreement arises when all of the parties to be
bound mutually assent to all material terms, even if those
terms are not memorialized in a final writing.”
Hansen v. Rhode Island's Only 24 Hour Truck &
Auto Plaza, Inc., 962 F.Supp.2d 311, 314 (D. Mass.
2013); Petition of Mal de Mer Fisheries, Inc., 884
F.Supp. at 641. Judge Harrington's report of settlement
indicates plaintiff's intent to be bound to an agreement
reached at the mediation. Plaintiff does not seriously
dispute this. Instead, at the hearing on these motions he
stated that after reaching the agreement he “[went]
home and ma[d]e a final account” and determined that
the amount “only goes for attorney's fees
basically.” Although the parties agree that the
settlement would be paid to plaintiff, rather than his
attorney, plaintiff contends that he is contractually
obligated to make certain payments to counsel. Taking
plaintiff's claims at the hearing as true and drawing all
inferences in his favor, there is no genuine issue that a
settlement agreement was reached at the mediation. Therefore,
the settlement agreement is enforceable in the amount agreed
upon in exchange for a release of claims.
further contends that his attorney did not adequately
represent his interests in the mediation and concerning other
aspects of this case. Such contentions do not undermine the
enforceability of the agreement he reached. The Court has not
been asked to consider and takes no position as to whether
plaintiff has a separate claim for legal malpractice against
plaintiff's motion for relief from the settlement order
of dismissal will be denied, and the cross-motion for
enforcement of the settlement agreement filed by Areas USA
will be granted.
Plaintiff's Motion for Leave to Serve Michael
filed the complaint in this action on December 30, 2015,
naming both Areas USA and Michael Frank as defendants.
Plaintiff timely served a summons and copy of the complaint
on Areas USA, but did not serve process on Frank. On April
14, 2017, he filed the present motion seeking leave to serve
Frank with the summons and complaint.
Fed.R.Civ.P. 4(m), “[i]f a defendant is not served
within 90 days after the complaint is filed, the court-on
motion or on its own after notice to the plaintiff-must
dismiss the action without prejudice against that defendant
or order that service be made within a specified time.”
However, if a plaintiff shows good cause for failing to serve
a defendant within 90 days, “the court must extend the
time for service for an appropriate period.”
Fed.R.Civ.P. 4(m). More than a year has passed since
plaintiff filed the complaint in this action. He now contends
that his failure to serve Frank is due to his former
attorney's inability to find that defendant's
address. However, he has not shown, as he must, that he was
diligent in attempting to effect service during that period.
See Martello v. United States, 133 F.Supp.3d 338,
344-45 (D. Mass. 2015). In any event, plaintiff's motion
would be futile. There is no individual ...