Replies to post #67659 on Lehman Brothers Financial SA (LEHNQ)

[inesdefilia]

You always post pure nonsense.ALL cases you have been posting for 8 years never existed.Your cases only exist in your mind.You did it from alone, you went out from alone, you answer to yourself, you wrote a personal poem to a Judge speaking about your limits and lacks.
However you are an Heroe for hundreds of people here.
Hope they gonna visit you with all their bills.

[JERSEYHAWG]

KABOOM, BOOT 2. right in her commons. Lol

Maximum effect on target 2. I can just imagine the size of the target. Like a baby moon. Good job cotton. You fired for effect.

[cottonisking]

We’re Not Done Yet: Retaining a District Court's Jurisdiction to Enforce a Settlement Agreement Feb 05, 2014
Ryan J. Leuthauser Litigation Attorney
[e-mail]
813.222.3108

View All Posts Your case in federal court has settled. The parties agree to the terms of the settlement, and although your client is optimistic that the litigation is really over, you remain prudently skeptical that the other side will fulfill its settlement obligations. So what do you do? It depends, of course, on how the agreement was drafted: does it dictate where an action to enforce or to clarify the agreement may or must be brought? For a variety of reasons, the agreement may have been drafted to provide that a state or federal court of competent jurisdiction—likely where one or more of the parties is located—is the venue where the agreement must be enforced. But in many cases, a settling party may wish to avoid the time and expense incurred by filing a new breach-of-contract action to enforce a settlement agreement. In that instance, the party may prefer that the same federal judge who presided over the case enforce the agreement. If that is the goal, then it is critical that you follow specific procedures.

Upon reaching a settlement agreement, Federal Rule of Civil Procedure 41(a) permits a plaintiff to voluntarily dismiss a case with or without a court order. Assuming the defendant has filed either an answer or a motion for summary judgment, after reaching an agreement that contemplates dismissing the case, the parties may achieve voluntary dismissal via Rule 41(a)(1)(A)(ii), which allows for a “stipulation of dismissal signed by all parties who have appeared.” (Rule 41(a)(2) requires a court order). The critical issue then becomes ensuring the district court retains jurisdiction to enforce the settlement agreement after the joint stipulation of dismissal has been filed.

The Supreme Court of the United States has made clear that enforcement of a settlement agreement falls beyond the scope of ancillary jurisdiction of the federal courts, even if the district court had jurisdiction to hear the underlying case. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379–80 (1994). In Kokkonen, the Court explained that a district court could retain jurisdiction to enforce a settlement agreement with the consent of the parties and the court, provided it issues an order mandating compliance with the settlement agreement. Id. at 381. A breach of the settlement agreement would therefore be a violation of a court order and the court would be authorized to use its ancillary jurisdiction to enforce its order—and by extension—the settlement agreement. Id. The Court held that a district court could enforce the settlement agreement either by making the agreement part of the order by a separate provision explicitly “retaining jurisdiction” over the agreement or by incorporating the terms of the agreement itself into the order. Id. at 381.

Best Practices:

As several other courts have explained, underlying the Kokkonen decision is the “well-established proposition” that jurisdiction cannot exist by mere consent of the settling parties. See, e.g., Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1279 (11th Cir. 2012) (“To retain jurisdiction to enforce a settlement agreement, the court itself must act; agreement by the parties is not enough.”). Depending on which federal circuit your case was litigated in, to ensure the trial court retains jurisdiction to enforce a settlement agreement, it is essential therefore that the joint stipulation of dismissal either: 1) explicitly conditions the dismissal upon the court entering an order retaining jurisdiction to enforce the terms of the settlement agreement; or 2) contains verbatim the terms of the agreement.

The Pitfall to Avoid:

As the Kokkonen opinion makes evident, there is a crucial (if quasi-theoretical) temporal element to successfully retaining a district court’s authority to enforce a settlement agreement: the court must enter its order retaining jurisdiction before the stipulation of dismissal becomes effective. Kokkonen, 511 U.S. at 381. Most of the federal circuits agree a stipulation filed under Rule 41(a)(1)(A)(ii) is self-executing and dismisses the case upon filing. See Shaz 677 F.3d at 1277–78 (collecting cases from the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits). As discussed above, to avoid this temporal pitfall, you must at a minimum condition the stipulation for dismissal on an order retaining jurisdiction. “Absent such action, however, enforcement of the settlement agreement is for state courts, unless there is some independent basis for federal jurisdiction.” Kokkonen, 511 U.S. at 382.

Despite such absolute language from the Supreme Court, there are differences among the federal circuits to be mindful of when it comes to filing a stipulation for dismissal after reaching a settlement:

First Circuit: The terms of the settlement agreement must be incorporated into the stipulation for dismissal if the district court is to retain jurisdiction to enforce the agreement. See F.A.C., Inc. v. Cooperativa de Seguros de Vida de Puerto Rico, 449 F.3d 185, 190 (1st Cir. 2006) (“bare reference to ‘a settlement agreement’ does not satisfy Kokkonen, and, although the question is closer, even the ‘pursuant to’ language is not enough to ‘incorporate the terms’ of the unwritten settlement”).

Second Circuit: Where the district court “makes ‘the parties' obligation to comply with the terms of the settlement agreement ... part of the order of dismissal—either by separate provision (such as a provision ‘retaining jurisdiction’ over the settlement agreement) or by incorporating the terms of the settlement agreement in the order’—the proper forum for litigating a breach is that same federal court.” In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d 113, 134 (2d Cir. 2011) (citing Kokkonen, 511 U.S. at 381).

Third Circuit: “District courts are free to enforce settlement agreements if they ‘reserve jurisdiction’ to do so.” Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d 240, 248 (3d Cir. 2013) (citing Kokkonen, 511 U.S. at 377).

Fourth Circuit: “The obligation to comply with a settlement's terms must be expressly made part of a court's order for jurisdiction to enforce the settlement after dismissal of the action to exist. . . . Either incorporation of the terms of the agreement or a separate provision retaining jurisdiction over the agreement will suffice for this purpose.” Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 283 (4th Cir. 2002).

Fifth Circuit: A district court has jurisdiction to enforce a settlement agreement following a stipulation for dismissal “only if the dismissal order expressly retained jurisdiction or the settlement terms were incorporated in the order.” Adam Technologies Intern. S.A. de C.V. v. Sutherland Global Services, Inc., 729 F.3d 443, 449–50 (5th Cir. 2013) (citing SmallBizPros, Inc. v. MacDonald, 618 F.3d 458, 460–61 (5th Cir.2010); Hospitality House, Inc. v. Gilbert, 298 F.3d 424, 428, 430 (5th Cir.2002)).

Sixth Circuit: An order stating that any “subsequent order setting forth different terms and conditions relative to the settlement and dismissal of the within action shall supersede the within order” is sufficient for the district court to retain jurisdiction because the “continued role for the court that was contemplated after dismissal” was included in the language of the order itself, constituting a “ ‘separate provision’ retaining jurisdiction in compliance with Kokkonen.” RE/MAX Intern., Inc. v. Realty One, Inc., 271 F.3d 633, 645 (6th Cir. 2001).

***Seventh Circuit***: A consent decree—not a jurisdictional retention provision in a stipulation for dismissal—is the only way for a district judge to acquire post-dismissal authority to enforce a settlement agreement. See Dupuy v. McEwen, 495 F.3d 807, 809 (7th Cir. 2007); Shapo v. Engle, 463 F.3d 641, 643 (7th Cir. 2006); Blue Cross & Blue Shield Ass'n v. Am. Express Co., 467 F.3d 634, 636 (7th Cir. 2006); Lynch v. Samatamason Inc., 279 F.3d 487, 489 (7th Cir. 2002).

Eighth Circuit: The failure to incorporate the specific terms of the settlement agreement into the dismissal order divests the district court of jurisdiction to enforce the agreement. See Miener By & Through Miener v. Missouri Dept. of Mental Health, 62 F.3d 1126, 1128 (8th Cir. 1995).

Ninth Circuit: To retain the district court’s jurisdiction to enforce the settlement agreement, the terms of the agreement must be made part of the order of dismissal “either by separate provision (such as a provision ‘retaining jurisdiction’ over the settlement agreement) or by incorporating the terms of the settlement agreement in the order.” Hagestad v. Tragesser, 49 F.3d 1430, 1433 (9th Cir. 1995).

Tenth Circuit: To enforce the settlement agreement, its terms must be included explicitly in the court’s order. See Consumers Gas & Oil, Inc. v. Farmland Indus., Inc., 84 F.3d 367, 370–71 (10th Cir. 1996).

Eleventh Circuit: “[F]or a district court to retain jurisdiction over a settlement agreement where the parties dismiss the case by filing a stipulation of dismissal pursuant to Rule 41(a)(1)(A)(ii), either (1) the district court must issue the order retaining jurisdiction under Kokkonen prior to the filing of the stipulation, or (2) the parties must condition the effectiveness of the stipulation on the district court's entry of an order retaining jurisdiction.” Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1280 (11th Cir. 2012).

D.C. Circuit: Where defendants argued that “the validity of the Settlement Agreement was not conditioned upon court approval,” but that the “Settlement Agreement explicitly reserves jurisdiction for this [c]ourt to enforce its terms,” the district court lacked jurisdiction under Kokkonen to enforce the agreement. Dailey v. Park, 468 F. Supp. 2d 209, 214 (D.D.C. 2007).

Federal Circuit: To bring a settlement agreement under the district court’s jurisdiction, an order or judgment of the court must incorporate the terms of the agreement. Nat'l Presto Indus., Inc. v. Dazey Corp., 107 F.3d 1576, 1583 (Fed. Cir. 1997).

Consent Decrees?

One final thought: non-compliance with a settlement agreement constitutes breach of contract unless, as discussed above, the agreement is incorporated into the district court’s order or judgment. In contrast, failure to comply with a consent decree is contempt of court. Unlike a settlement agreement, however, a consent decree is necessarily a public document. For an in-depth discussion of when a consent decree may be the best mechanism for enforcing the terms of a settlement (or in the Seventh Circuit, the only choice), see Anthony DiSarro, Six Decrees of Separation: Settlement Agreements and Consent Orders in Federal Civil Litigation, 60 Am. U.L. Rev. 275, 276 (2010).

http://www.hwhlaw.com/resource-center/blog/blog-detail-page/attorney-blog/2014/02/05/we-re-not-done-yet-retaining-a-district-court's-jurisdiction-to-enforce-a-settlement-agreement