United States District Court, W.D. Louisiana, Monroe Division
NORTH AMERICAN LAND DEVELOPMENT CORP. ET AL.
JELD-WEN, INC. ET AL.
A. DOUGHTY, JUDGE
REPORT AND RECOMMENDATION
L. HAYES, UNITED STATES MAGISTRATE JUDGE
the undersigned Magistrate Judge, on reference from the
District Court, is a motion to enforce settlement agreement,
or in the alternative to reopen this matter, filed by
plaintiffs North American Land Development Corporation and N.
Edward Hakim (“Plaintiffs”). [doc. # 41]. The
motion is opposed. For reasons detailed below, it is
recommended that the motion be GRANTED IN
PART and DENIED IN PART.
August 23, 2017, Plaintiffs filed a Petition in
Louisiana's 4th Judicial District Court, Ouachita Parish,
against defendants Jeld-Wen, Inc. (“Jeld-Wen”)
and Millwork Sales of Georgia d/b/a MSI Jackson (incorrectly
named as Millwork Services Inc.) (“Millwork”).
Plaintiffs alleged damages due to their purchase of defective
windows manufactured by Jeld-Wen. [doc. # 1-1]. Defendants
removed the matter to federal court on the basis of diversity
jurisdiction, 28 U.S.C. § 1332, on November 10, 2017.
[doc. # 1; see doc. # 15].
parties reached a settlement, which was memorialized by a
Compromise Agreement, executed on September 12-13, 2018.
(“Agreement, ” [doc. # 41-2]). The Agreement
includes the following provisions:
1. JELD-WEN will sell and have delivered to Plaintiffs the
196 Replacement Units identified in Bob Mitchell's report
dated February 21, 2018 . . . . Plaintiffs are responsible
for preparing and submitting the Order to JELD-WEN.
2. . . .
3. JELD-WEN will fulfill the order for aforesaid 196
Replacement Units and furnish the Warranty for same within
nine (9) weeks of placing of the Order by Jimmy Plauche of
Louisiana Building Specialties through JELD-WEN Customer Care
c/o Kelly [sic] Stout . . . . The Order must include
templating for the custom transom glass openings in
Plaintiffs' home. Plaintiffs are responsible for any fees
or costs charged by Mr. Plauche in preparing the Order.
parties did not place their settlement on the record but
provided the Court with a Notice of Settlement, [doc. # 33].
On September 28, 2018, the Court entered an Order of
Dismissal, dismissing the action. The Order of Dismissal
provided that the parties could move “to reopen the
action if settlement is not consummated” on “good
cause shown within sixty (60) days of the signing of this
Order.” [doc. # 34]. The parties moved three times to
extend the time for final dismissal, which the Court granted.
[docs. 35-40]. On March 26, 2019, the Court ordered that the
“parties have 60 days from the signing date of this
Order to file a Stipulated Dismissal.” [doc. # 40].
April 25, 2019, Plaintiffs filed the instant motion to
enforce the Agreement. [doc. # 41]. Plaintiffs make the
following claims: (1) Jeld-Wen's distributor, Plauche,
had a third-party, Clyde Potier, make the measurements needed
for the Order and submit a list of materials to be replaced
to Stout. Stout initially responded that “she would
send an ‘Order' back for
‘proofing'” but “later reneged on this
commitment” at Jeld-Wen's instruction. [doc. 41-1
at 1-2]. Jeld-Wen also insists on the Order being sent in a
special form, despite no such requirement in the Agreement.
(Id. at 2); (2) Plaintiffs have contacted Plauche to
request he place the Order in the form Jeld-Wen requests, but
Plauche refuses to do so. Plauche allegedly informed
Plaintiffs that he was first instructed by Jeld-Wen not to
place the Order and was then advised that the Order was being
implemented by Jeld-Wen. (Id. at 2-3). Plaintiffs
request that the Court order Jeld-Wen to place the needed
items into production and furnish the agreed-on replacement
items to Plaintiffs as per the Agreement. In the alternative,
Plaintiffs request the Court cancel the Notice of Settlement
and return this matter to the trial docket. (Id. at
16, 2019, Jeld-Wen filed an opposition to Plaintiffs'
motion. [doc. # 43]. Jeld-Wen responds that
Plaintiffs have not fulfilled their end of the Agreement
because Plauche has not submitted any Order. According to
Jeld-Wen, “[i]f plaintiffs have Jimmy Plauche submit an
Order with templating for the custom transom glass openings
in Plaintiffs' home, JELD-WEN will fulfill the Order
within nine (9) weeks of receipt of the Order.”
(Id. at 3). Jeld-Wen claims that the document
submitted by Potier to Stout is a “list” of
materials and does not constitute an Order. Moreover, despite
Stout's initial response to the list, she emailed
Plaintiffs later that day explaining they needed to provide
her with “a Quick Quote order for exactly what it is
that needs to be replaced. . . . It would not be
JELD-WEN's responsibility to convert [Potier's]
information into the actual order.” (Id. at
4); [doc. # 43-1]. Jeld-Wen also denies knowing why Plauche
is not submitting the Order and claims the “reality is
that Mr. Plauche . . . does not want to be responsible for
placing the Order.” [doc. # 43 at 6]. Further, Jeld-Wen
avers that it intends to file its own motion to enforce to
Plaintiffs' compliance with the Agreement. (Id.
filed a reply on May 17, 2019. [doc. # 44].