United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
matter is pending for consideration of Defendants City of
Williamsburg, Kentucky, and Wayne Bird's motion to
dismiss and renewed motion for costs. Plaintiff Tristan Hall
has not filed a response to the defendants' motion, and
the motion may be granted for this reason alone. See
Local Rule 7.1(c) (“Failure to timely respond to a
motion may be grounds for granting the motion.”);
Humphrey v. United States Att'y Gen.'s
Office, 279 F. App'x 328, 331 (6th Cir. 2008)
(recognizing that when a party fails to respond to a motion
the court may assume that opposition is waived and grant the
motion). Additionally, the Court has fully reviewed the
motions, and they will be granted for the reasons that
Tristan Hall and Defendants Wayne Bird and City of
Williamsburg, Kentucky, agreed to settle this case on October
16, 2017. [See Record No. 220-1] The defendants
filed a notice of settlement with Hall's permission that
same day, and the Court ordered the parties to tender a
proposed Agreed Order of Dismissal by November 16, 2017.
[Record No. 219] Hall subsequently failed to comply with the
parties' settlement agreement, and his actions prevented
the parties from tendering a proposed Agreed Order of
Dismissal as directed. [See Record No. 220] The
defendants then filed a motion to enforce the parties'
settlement. The Court found that the parties had reached a
clear and unambiguous agreement on all material terms and
were bound to the settlement agreement, despite the fact that
Hall refused to sign the release or Agreed Order of
Dismissal. See RE/MAX Intern., Inc. v. Realty One,
Inc., 271 F.3d 633, 646 (6th Cir. 2001). Accordingly,
the Court entered an Order enforcing the parties'
settlement agreement on January 26, 2018, and directed them
to tender an Agreed Order of Dismissal within fifteen days.
[Record No. 223]
Court found that Hall's refusal to adhere to the
parties' settlement agreement was not done in good faith.
[Id. at 4] However, at that point, it was possible
that the parties simply disagreed over whether a settlement
had occurred, and that Hall would adhere to the settlement
agreement once that issue was resolved. [See Id. at
4-5] Accordingly, the Court denied the defendants' motion
for recovery of the costs incurred in filing their motion to
enforce the settlement. See Tocci v. Antioch Univ.,
967 F.Supp.2d 1176, 1201 (S.D. Ohio 2013) (“[A] party
seeking enforcement of a settlement agreement is not entitled
to attorneys' fees simply because the parties disagree
over whether a settlement occurred.”). However, the
Court advised the parties that the defendants could renew
their motion for costs if Hall failed to comply with the
parties' settlement agreement and the Order enforcing it.
[Record No. 223, p. 5]
immediately made clear that he intended to ignore the
Court's Order, and would continue to violate the terms of
the settlement agreement he voluntarily entered into, stating
that he “won't be signing anything.” [Record
No. 224-1] As a result, the defendants moved to dismiss this
action and renewed their motion for costs. [Record No. 224]
Rule 41(b) of the Federal Rules of Civil Procedure, when a
plaintiff fails to comply with any order of the court, the
defendant may move for dismissal of the action.”
Coleman v. Am. Red Cross, 23 F.3d 1091, 1094 (6th
Cir. 1994). However, “dismissal with prejudice is
warranted only where a clear record of delay or contumacious
conduct by the plaintiff exists . . . and a lesser sanction
would not better serve the interests of justice.”
Consolidation Coal Co. v. Gooding, 703 F.2d 230,
232-33 (6th Cir. 1983) (quoting Gonzales v. Firestone
Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir.
1980)) (quotation marks omitted). “Contumacious conduct
refers to behavior that is ‘perverse in resisting
authority and stubbornly disobedient.'”
Carpenter v. City of Flint, 723 F.3d 700, 704-05
(6th Cir. 2013) (quoting Schafer v. City of Defiance
Police Dep't, 529 F.3d 731, 737 (6th Cir. 2008)
(internal quotations omitted). “The plaintiff's
conduct must display either an intent to thwart judicial
proceedings or a reckless disregard for the effect of his
conduct on those proceedings.” Id. (quoting
Tung-Hsiung Wu v. T.W. Wang, Inc., 420 F.3d 641, 643
(6th Cir. 2005) (internal quotation marks and alterations
omitted). In general, a Rule 41(b) dismissal “operates
as an adjudication upon the merits.” Fed. R. Civ. Pro.
on the merits is appropriate under the facts presented. Hall
has repeatedly disregarded Court Orders and deadlines.
[See Record Nos. 207, 212, 220, 224] He previously
disobeyed the Court's Order to fully respond to the
defendants' discovery requests, and obstructed discovery
by failing to attend his own deposition. [See Record
No. 223] He then entered into a settlement agreement with the
defendants, consented to their notifying the Court, and
assured them that he had sent the required documents-only to
attempt to renege in bad faith. [Id.] And he has now
twice failed to comply with Court Orders to tender an Agreed
Order of Dismissal. [See Record Nos. 223, 224]
Considering the stage of this litigation and the nature of
the Order that Hall has disobeyed, dismissal is appropriate,
and there is no lesser sanction that would better serve the
interests of justice.
as the Court previously explained, “[t]he attempt to
repudiate or alter the terms of an agreement after settlement
may justify an award of attorneys' fees to the party who,
as a result, expends subsequent resources to enforce or
defend the agreement.” Tocci, 967 F.Supp.2d at
1201. An award attorney's fees is appropriate if the
Court finds that a party “‘willfully-abused
judicial processes by conduct tantamount to bad
faith.'” Jaynes, 20 F. App'x at 427
(quoting Jones v. Continental Corp., 789 F.2d 1225,
1229 (6th Cir. 1986)) (internal quotations and alterations
omitted). However, a court “must comply with the
mandates of due process, both in determining that the
requisite bad faith exists and in assessing fees.”
Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991).
the Court has already found that “Hall's refusal to
adhere to the parties' settlement agreement was done not
in good faith.” [Record No. 223] Hall's bad faith
conduct made it necessary for the defendants to file a motion
to enforce the settlement agreement, and to incur costs in
the amount of $1, 687.50. [See Record No. 224-2]
Although the Court granted the defendants' motion to
enforce the settlement agreement, Hall was given an
opportunity to avoid the imposition of costs by tendering an
Agreed Order of Dismissal within fifteen days. [Record No.
223, p. 5] Instead, he continued his bad faith conduct by
stating that, despite the Court's Order, he
“won't be signing anything.” [Record No.
224-1] The defendants were thus forced to file a motion to
dismiss and renewed motion for costs, incurring additional
costs in the amount of $1, 353.00. [See Record No.
224-2] Because Hall's bad faith conduct has forced the
defendants to expend resources to enforce and defend the
parties' settlement agreement, these costs will be fully
assessed against Hall.
the requirements of due process have been satisfied in this
case. Hall was given the time provided in the Local Rules and
Federal Rules of Civil Procedure to respond to both the
defendants' initial and renewed motions for costs.
However, he failed to timely respond to either motion. He was
warned that failure to comply with the settlement agreement
and the Court's Order enforcing it may result in the
imposition of costs. [Record No. 223, p. 5] And the
defendants have attached the required affidavit quantifying
the attorney fees and costs incurred as a result of
Hall's failure to comply with the parties' agreement.
[Record Nos. 223, 224-1] Accordingly, it is hereby
defendants' motion to dismiss [Record No. 224] is
GRANTED. The claims asserted by Plaintiff
Tristan Hall against Defendants Wayne Bird and City of
Williamsburg, Kentucky, are DISMISSED, with
prejudice, in their entirety.
defendants' renewed motion for costs [Record No. 224] is
GRANTED. The defendants will be awarded
attorney's fees and costs in the amount of $3, 040.50.
action is DISMISSED and