2019 WL 4345697

United States District Court, S.D. Ohio, Western Division,
at Dayton.
Anjum Q. QURESHI, et al., Plaintiffs,
v.
INDIAN RIVER TRANSPORT, et al., Defendants.
Case No. 3:18-cv-27
|
Signed 09/12/2019
Attorneys and Law Firms
Jordan D. Lebovitz, Cleveland, OH, for Plaintiffs.
Anjum A. Qureshi, pro se.
Beth Anne S. Lashuk, Jurca & Lashuk, LLC, Columbus, OH, for Defendants.

ORDER AND ENTRY: (1) APPROVING THE STIPULATION OF DISMISSAL REGARDING THE CLAIMS OF PLAINTIFF ANNA QURESHI; (2) GRANTING PLAINTIFF’S COUNSEL’S MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFF ANJUM QURESHI; (3) DIRECTING THE CLERK TO UPDATE THE DOCKET TO REFLECT THAT ANJUM QURESHI IS PROCEEDING PRO SE; (4) GRANTING DEFENDANTS’ MOTION TO ENFORCE THE SETTLEMENT AGREEMENT; (5) DENYING DEFENDANTS’ REQUEST FOR ATTORNEY’S FEES; (6) DIRECTING PLAINTIFF ANJUM QURESHI TO EXECUTE A SETTLEMENT AND RELEASE WITHIN 30 DAYS FROM THE ENTRY OF THIS ORDER; (7) DIRECTING ATTORNEY LEBOVITZ TO RETURN THE PREVIOUSLY ISSUED SETTLEMENT CHECK TO DEFENDANTS’ ATTORNEY; (8) DIRECTING DEFENDANTS TO REISSUE A NEW SETTLEMENT CHECK TO PLAINTIFF ANJUM QURESHI UPON RECEIPT OF AN EXECUTED RELEASE; (9) DISMISSING THIS CASE WITH PREJUDICE; AND (10) TERMINATING THIS CASE ON THE COURT’S DOCKET
Michael J. Newman, United States Magistrate Judge
*1 This civil consent case is before the Court on Defendants’ motion to enforce their settlement agreement with Plaintiff Anjum Q. Qureshi (“Plaintiff”). Doc. 25. Plaintiff has not filed a memorandum in opposition, and the time for doing so has expired. The Court held a hearing on Defendants’ motion on July 22, 2019, at which time Plaintiff’s attorney, Jordan Lebovitz, advised the Court that he intended to seek leave to withdraw. See doc. 28. As a result of counsel’s notice to the Court, the hearing was continued to September 10, 2019. See id. Attorney Lebovitz subsequently filed a motion to withdraw as Plaintiff’s counsel. Doc. 29. Plaintiff submitted a response indicating he had no objection to Attorney Lebovitz’s motion to withdraw as his counsel of record. Doc. 31.

This case came before the Court for the continued hearing on September 10, 2019. Attorney Lebovitz appeared, as did Plaintiff. Attorney Beth Ann Lashuk appeared on behalf of Defendants. During the hearing, Plaintiff again stated his lack of opposition to Attorney Lebovitz’s motion to withdraw and, as a result, such motion (doc. 29) was GRANTED. Thereafter, the Court advised Plaintiff of his right to proceed with counsel or to proceed pro se, and he voluntarily elected to proceed pro se. Further, after having been advised of his right to maintain the privilege between himself and Attorney Lebovitz, Plaintiff waived his attorney-client privilege so that Attorney Lebovitz could provide testimony during the hearing with regard to Defendants’ motion to enforce the settlement agreement. Attorney Lebovitz did testify during the hearing, and Plaintiff was able to question him under oath.

I.
This case concerns a motor vehicle accident that occurred in February 2016 on southbound I-75 in Shelby County, Ohio. Doc. 1 at PageID 2. Plaintiffs assert state law claims in their complaint, and this case is properly before the Court on the basis of diversity jurisdiction. 28 U.S.C. § 1332. The accident at issue involved a tractor-trailer being driven by Plaintiff and a tractor-trailer driven by Defendant Jay Charles Dolley. Id. at PageID 3-4. At the time of the accident, Dolley was an employee of Defendant Indian River (“Indian River”) Transport. Plaintiff — along with his wife Anna Qureshi, whose loss of consortium claim was voluntarily dismissed by separate stipulation (doc. 30), which the Court hereby APPROVES — alleged that he suffered injuries and other damages as a result of Dolley’s negligence and sought to hold Dolley and Indian River liable. Id. at PageID 4-6.

Defendants represent that the parties engaged in written discovery and that Plaintiff was deposed on January 30, 2019. Doc. 25 at PageID 66. Thereafter, the parties began settlement discussions and ultimately reached a settlement for the sum of $10,000.00. See doc. 25-1 at PageID 74-79. Although now disputed by Plaintiff, Attorney Lebovitz testified during the hearing on September 10, 2019 that he conveyed the $10,000 offer to Plaintiff and Plaintiff specifically agreed to accept the offer. On April 8, 2019, Defendants’ attorney mailed to Attorney Lebovitz the $10,000.00 settlement check, along with a release and a proposed stipulation of dismissal.1 Doc. 25-2 at PageID 80-85. Plaintiff, however, never returned an executed release (or cashed the check), id., and contends that he never agreed to settle the case and never gave Attorney Lebovitz authority to accept the $10,000 offer from Defendants.

II.
*2 “Public policy strongly favors settlement of disputes without litigation.” Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir. 1976). This is so because, “[b]y such agreements are the burdens of trial spared to the parties, to other litigants waiting their turn before over-burdened courts, and to the citizens whose taxes support the latter.” Id. In other words, “[a]n amicable compromise provides the more speedy and reasonable remedy for the dispute.” Id. Accordingly, “[s]ettlement agreements should … be upheld whenever equitable and policy considerations so permit.” Id. And, “[i]t is beyond debate that the district court has the ‘inherent authority and equitable power to enforce agreements in settlement of litigation before it.’ ” Guy v. Lexington-Fayette Urban Cnty. Gov’t, 57 F. App’x 217, 224 (6th Cir. 2003) (citing Bowater N. Am. Corp. v. Murray Machinery, Inc., 773 F.2d 71, 76 (6th Cir. 1985)).

In this case, based on the evidence presented in support of and attached to Defendants’ motion, in addition to the testimony and argument presented during the hearing on September 10, 2019, the Court finds that the parties reached a settlement agreement to resolve this dispute. Specifically, Plaintiff agreed to execute a release and to dismiss his claims with prejudice in exchange for a payment of $10,000 from Defendants. Accordingly, Defendants’ motion (doc. 25) is GRANTED and Plaintiff is ORDERED to execute a release within 30 days from the entry of this Order. Plaintiff is NOTIFIED that his failure to comply with this Order may result in the imposition of sanctions and/or a finding of contempt. Upon receipt of the executed release, Defendants shall make the agreed-upon payment to Plaintiff.

In addition to seeking enforcement of the settlement agreement, Defendants also seek an award of attorney’s fees incurred as a result of their efforts to seek enforcement of the agreement. Doc. 25 at PageID 71. Generally, each party must bear their own attorney’s fees “in the absence of statutory authorization.” Ray A. Scharer & Co. v. Plabell Rubber Prod., Inc., 858 F.2d 317, 320 (6th Cir. 1988) (citation omitted). This general rule “does not apply, however, where a party or counsel have acted in bad faith in the instigation or conduct of litigation, and in those circumstances, the court has the inherent authority to assess an award of attorney’s fees against either the litigant or his attorney.” Id.

Significantly, “[a]n award of attorney’s fees … is an extreme sanction, and must be limited to truly egregious cases of misconduct.” Id. Generally, “a party seeking enforcement of a settlement agreement is not entitled to attorneys’ fees simply because the parties disagree over whether a settlement occurred.” Tocci v. Antioch Univ., 967 F. Supp. 2d 1176, 1202 (S.D. Ohio 2013). Noting that the Court has broad discretion in determining whether sanctions should issue under its inherent authority, see Jordan v. City of Detroit, 595 F. App’x 486, 489 (6th Cir. 2014), the undersigned concludes that the conduct at issue here — although it has multiplied proceedings — falls short of the unreasonable and/or egregious conduct required to impose monetary sanctions against Plaintiff. Accordingly, Defendants’ request for attorney’s fees is DENIED.

III.
This case, having been settled, is hereby DISMISSED with prejudice as to all parties, provided that any of the parties may, upon good cause shown within sixty (60) days, reopen the action if settlement is not consummated. Within sixty (60) days, the parties may substitute this Order and Entry with a proposed dismissal entry agreed upon by the parties.

For the foregoing reasons, the Court ORDERS as follows:
*3 1. The stipulation of dismissal regarding Plaintiff Anna Qureshi’s claims (doc. 30) is APPROVED and Plaintiff Anna Qureshi’s claims are, therefore, DISMISSED;
2. Attorney Lebovitz’s motion to withdraw as counsel for Plaintiff Anjum Qureshi (doc. 29) is GRANTED as set forth on the record during the September 10, 2019 hearing;
3. The Clerk is ORDERED to update the docket to reflect that Plaintiff Anjum Qureshi is pro se;
4. Defendants’ motion to enforce their settlement agreement with Plaintiff Anjum Qureshi (doc. 25) is GRANTED;
5. Plaintiff Anjum Qureshi is ORDERED to execute a release of all claims within 30 days from the issuance of this Order;
6. Attorney Lebovitz is ORDERED to return the previously issued settlement check to Defendants’ attorney forthwith;
7. Defendants are ORDERED to promptly reissue a settlement check in the amount of $10,000.00 to Plaintiff Anjum Qureshi upon receipt of the executed release;
8. Defendants’ motion for attorney’s fees (doc. 25) is DENIED; and
9. This case is TERMINATED on the Court’s docket.

IT IS SO ORDERED.

All Citations
Slip Copy, 2019 WL 4345697

Footnotes

1
The Court understands that the settlement check is still in the possession of Attorney Lebovitz and is no longer valid on account of the significant time that has elapsed since its issuance. Accordingly, as set forth, infra, Defendants shall issue a new check once Plaintiff Anjum Qureshi executes a release. Attorney Lebovitz is ORDERED to return the previously issued check to Defendants’ attorney forthwith.

2019 WL 4316870

United States District Court, W.D. Kentucky,
at Paducah.
BURRELL et al., Plaintiffs
v.
DUHON et al., Defendants
CIVIL ACTION NO. 5:18-CV-141-TBR-LLK
|
Signed 09/11/2019
Attorneys and Law Firms
Ben E. Stewart, Jonathan Freed, L. Miller Grumley, Bradley Freed & Grumley, PSC, Paducah, KY, Scott P. Whonsetler, Whonsetler & Johnson, PLLC, Louisville, KY, for Plaintiffs.
Stockard R. Hickey, III, Kopka Pinkus Dolin, PC, Louisville, KY, for Defendants.

MEMORANDUM OPINION AND ORDER
Thomas B. Russell, Senior Judge
*1 This matter is before the Court on Defendants Lindy W. Duhon, Lindy Duhon Trucking, LLC, Forward Air, Inc., Forward Air Corporation, FAF, Inc. (TN), Forward Air Services LLC, Forward Air Solutions, Inc., Forward Air Technology and Logistics Services, Element Financial Corp., and Element Fleet Management Corp. (hereinafter “Forward Air Defendants”) and Element Transportation Asset Trust, Element Transportation, LLC, 19th Capital Group, LLC, and 19th Capital Group, Inc.’s (hereinafter “19th Capital Movants”) Supplemental Motion to Dismiss Certain Improperly Named Parties for Failure to State a Claim pursuant to Federal Rule of Civil Procedure 12(b)(6). [R. 52.] Intervening Plaintiffs Cherokee Insurance Company and Jack Hicks Company of Elk Park Inc. (hereinafter “Intervening Plaintiffs”) responded. [R. 55.] Forward Air Defendants and 19th Capital Movants did not reply, and the deadline to do so has passed. This matter is now ripe for adjudication.

For the reasons stated herein: Defendants’ Supplemental Motion to Dismiss is DENIED.

BACKGROUND
At approximately 2:00AM on September 30, 2017, Plaintiff J.B. Burrell Jr. was driving a commercial vehicle westbound on Interstate 24 while his wife, Plaintiff Marie Burrell, slept in the vehicle’s sleeper compartment. [R. 1-4 at 9.] Further ahead on Interstate 24, Defendant Lindy Duhon was driving a tractor trailer. [Id.] At some point, Mr. Duhon lost control of the tractor trailer, causing the vehicle to enter the unpaved median and fall on its side. [Id.] The tractor trailer landed with its wheels off the ground and the underside of the vehicle blocking both lanes of westbound Interstate 24. [Id.] Given that it was dark, and the highway was unlit, Mr. Burrell could not see the tractor trailer blocking the road. [Id.] Mr. Burrell’s vehicle collided with Mr. Duhon’s trailer, resulting in injuries to Mr. and Mrs. Burrell. [Id.]

In addition to Mr. Duhon, Plaintiffs allege the involvement of fourteen other defendants on the basis that each entity had a legal relationship with Mr. Duhon at the time of the collision. [Id. at 10.] The Complaint contains six counts, including (1) negligence, (2) negligence per se, (3) strict liability, (4) vicarious liability, (5) negligent hiring, retention, supervision, and training, and (6) gross negligence. [Id. at 10-14.]

The Complaint was filed in Marshall Circuit Court on August 24, 2018, and the case was removed to federal court on September 19, 2018. [R. 1.] Subsequently, Forward Air Defendants filed a Motion to Dismiss for Failure to State a Claim pursuant to Federal Rule of Civil Procedure 12(b)(6). [R. 9.] Additionally, Defendant ECN Financial, LLC filed a Motion to Dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) and for failure to state a claim pursuant to Rule 12(b)(6), [R. 12]; Defendants Celadon Group, Inc., Celadon Trucking Services, Inc., and Celadon Logistics Services, Inc. filed a Motion for Summary Judgment pursuant to Rule 56, [R. 17]; and 19th Capital Movants filed a Motion to Dismiss for Failure to State a Claim pursuant to Rule 12(b)(6). [R. 21.] Plaintiffs responded to each motion [R. 19, 20, 25, 27], and Defendants replied [R. 24, 26, 28]. Upon careful review, the Court denied all four motions. [R. 67.]

*2 After Defendants filed their initial motions to dismiss, Cherokee Insurance Company and Jack Hicks Company of Elk Park Inc. (hereinafter “Jack Hicks Company”) filed a Motion for Leave to Intervene as subrogates of Plaintiffs Mr. and Mrs. Burrell. [R. 29.] Defendants did not respond, and the Court granted the motion. [R. 43.] Intervening Plaintiffs filed an Intervening Complaint in which they incorporated the Amended Complaint. [R. 44.] Additionally, the Intervening Complaint alleges that Mr. and Mrs. Burrell were employees of Jack Hicks Company and were working in the course and scope of their employment at the time of the collision. [Id.] Cherokee Insurance Company provides workers’ compensation insurance to Jack Hicks Company. [Id.] Since the collision, Cherokee Insurance Company has paid approximately $290,067.31 in workers’ compensation benefits to or on behalf of Mr. Burrell and approximately $151,738.00 in benefits to or on behalf of Mrs. Burrell. [Id.] Intervening Plaintiffs claim they are entitled to recover from Defendants all sums paid or payable to or on behalf of Mr. and Mrs. Burrell. [Id.]

Forward Air Defendants and 19th Capital Movants then filed a Supplemental Motion to Dismiss the Intervening Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), [R. 52], and Intervening Plaintiffs responded [R. 55].

DISCUSSION
Plaintiffs and Intervening Plaintiffs allege six claims against Defendants: negligence; negligence per se; strict liability; vicarious liability; negligent hiring, retention, supervision, and training; and gross negligence. [R. 1-4 at 10-14.] Pursuant to Federal Rule of Civil Procedure 8(a)(1), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In order to survive a motion to dismiss under Rule 12(b)(6), a party must “plead enough ‘factual matter’ to raise a ‘plausible’ inference of wrongdoing.” 16630 Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim becomes plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). When considering a Rule 12(b)(6) motion to dismiss, the Court must presume all of the factual allegations in the complaint are true and draw all reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)). “The court need not, however, accept unwarranted factual inferences.” Id. (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). Should the well-pleaded facts support no “more than the mere possibility of misconduct,” then dismissal is warranted. Iqbal, 556 U.S at 679. The Court may grant a motion to dismiss “only if, after drawing all reasonable inferences from the allegations in the complaint in favor of the plaintiff, the complaint still fails to allege a plausible theory of relief.” Garceau v. City of Flint, 572 F. App’x. 369, 371 (6th Cir. 2014) (citing Iqbal, 556 U.S. at 677–79).

In their Supplemental Motion to Dismiss, Forward Air Defendants and 19th Capital Movants argue that the Intervening Complaint should be dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). [R. 52.] Rather than presenting a separate argument in support of this motion, the Defendants adopted the arguments offered in Forward Air Defendants’ Motion to Dismiss, [R. 9], and 19th Capital Movants’ Motion to Dismiss [R. 21]. Similarly, the Intervening Plaintiffs responded to the Supplemental Motion to Dismiss by adopting the Plaintiffs’ prior responses to the Defendants’ corresponding motions. [R. 55; see R. 19, 27.] There have been no additional arguments presented by either party regarding the Supplemental Motion to Dismiss. Since the Court fully reviewed Forward Air Defendants and 19th Capital Movants’ Motions to Dismiss and the Plaintiffs’ related responses in its Memorandum Opinion and Order, [R. 67], the Court will adopt its prior analysis and apply its findings to the current motion. Thus, the Supplemental Motion to Dismiss, [R. 52], is DENIED.

CONCLUSION
*3 For the foregoing reasons, IT IS HEREBY ORDERED: Forward Air Defendants and 19th Capital Movants’ Supplemental Motion to Dismiss [R. 52], is DENIED.

All Citations
Slip Copy, 2019 WL 4316870