United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.
the Court is a Third Motion to Enforce Settlement
Agreement (R. Doc. 56), which was referred to the
undersigned for consideration (R. Doc. 58). The motion was
filed by the Plaintiff, Cleber Desouza Oliveira
(“Oliveira”), seeking an order to enforce the
terms of the settlement agreement entered into by Oliveira
and Defendants, Ionia Maria Martins and Brazilian Grill, LLC
(collectively “Defendants”). The motion is
opposed. R. Doc. 61. The motion was submitted on August 9,
filed this lawsuit against the Defendants, alleging that they
had, in bad faith, breached a contract and engaged in a
fraudulent scheme to deprive Oliveira of his property without
paying for said property. R. Doc. 1. The Parties engaged in a
voluntary mediation and entered an agreement to settle the
claims for a lump sum payment, regularly scheduled payments,
a security interest in the equipment transferred by Oliveira
to the Defendants, and personal guarantees. R. Doc. 33.
actual terms of the settlement were that the Defendants would
make monthly payments, in the amount of $1, 500, to Oliveira
for 34 months and a final payment of $250 in the
35th month. The settlement would be secured by a
security interest in the equipment, subject to the sale, and
the agreement would be personally guaranteed by the
Defendants. R. Doc. 56-1.
spite of the agreement, Oliveira contends that the Defendants
refused to provide the necessary information to finalize the
settlement documents and to make the agreed upon settlement
payments. As a result, Oliveira filed his first Motion to
Enforce Settlement Agreement (R. Doc. 34), and during the
hearing, the Defendants again agreed to comply with the terms
of the settlement and pay Oliveira's attorneys' fees.
R. Doc. 56-1.
this second agreement, the Defendants failed to comply with
their obligations, and a Second Motion to Enforce Settlement
Agreement was filed (R. Doc. 47). After the second motion,
the settlement documents were finally completed, and the
Defendants began making the agreed upon settlement payments.
Thereafter, the second motion to enforce the terms of
settlement was withdrawn.
almost two years, the Defendants stopped making the monthly
payments in January 2017. The Defendants were placed in
default, and to date, remain in default. Thereafter, Oliveira
filed the subject motion, seeking an order enforcing the
agreement because of the alleged willful breach of the
Parties' compromise. Oliveira, therefore, seeks the
enforcement of the agreement, including penalties, with legal
interest, and reasonable attorneys' fees incurred as
result of having to file the motion.
response to the subject motion, Counsel for the Defendants
(“Counsel”) asserts that he has had no contact
with the Defendants since August 2015. Counsel notes that, on
March 27, 2017, he received a Notice of Default. Upon receipt
of the notice, on March 28, 2017, Counsel mailed the notice
to the Defendants and requested that they contact him.
Counsel also forwarded a copy of the notice to the primary
personal counsel for defendants, Mr. Tom Donelon, requesting
that he also contact the Defendants.
about April 5, 2017, Mr. Donelon advised Counsel that it
appeared that the Defendants' home in St. Tammany Parish
had been foreclosed upon and that he also was unable to make
contact with the Defendants.
received no response, on May 16, 2017, Counsel re-issued his
March 28, 2017, correspondence, again requesting that the
Defendants contact him. After receiving no response, Counsel
filed a Motion to Withdraw as Counsel, submitting a courtesy
copy, in the mail, to the Defendants. The undersigned,
however, denied the Motion to Withdraw, and Counsel was
directed to file a memorandum, detailing information
regarding the Defendants' current status and efforts to
contact them. Thereafter, in response to the Court's
order, Counsel issued additional correspondence to the
Defendants, presumably at the same foreclosed address,
requesting that they contact him. As before, Counsel also
forwarded a copy of this correspondence to Mr. Donelon.
addition, Counsel also traveled to the Defendants'
business, the Brazilian Grill Restaurant, at 3712 Williams
Blvd, Suite A, Kenner, Louisiana, only to learn that the
restaurant was closed and a new restaurant was opening soon
at the location. R. Doc. 61, Ex. J. Despite his efforts,
Counsel has not been able to make contact with his clients,
and as a result, there is no indication that the Defendants
even know about the subject motion. R. Doc 61, p. 5.
well settled that a federal court that maintains jurisdiction
over a settled action possesses the inherent power to enforce
agreements entered into in settlement of litigation pending
before it. Kokkonen v. Guardian Life Ins. Co., 511
U.S. 375 (1994); Eastern Energy, Inc. v. Unico Oil &
Gas, Inc., 861 F.2d 1379, 1380 (5th Cir. 1988). By the
terms of the order of dismissal, the Court retains
jurisdiction of the action for purposes of enforcing the
parties' settlement agreement.
of the settlement agreement, a type of contract, is governed
by the principles of Louisiana law applicable to contracts
generally. Lockette v. Greyhound Lines, Inc., 817
F.2d 1182, 1185 (5th Cir. 1987). Under article 3071 of the
Louisiana Civil Code, a transaction or compromise may be
enforced only if reduced to writing and signed by the parties
or their agents, or recited in open court. La. Civ. Code art.
3071 (West 1996). The Fifth Circuit has held that the
issuance of a sixty-day order of dismissal ...