United States District Court, S.D. California
ORDER GRANTING IN
PART AND DENYING IN PART PLAINTIFF'S SECOND MOTION FOR ENFORCEMENT OF SETTLEMENT
AGREEMENT AND AWARD OF ATTORNEY'S FEE [ECF NO. 53]
MITCHELL D. DEMBIN, Magistrate Judge.
Before the Court is Plaintiff's Motion for Enforcement of Settlement Agreement and Award of Attorney's Fees filed on January 16, 2015. (ECF No. 53). Defendant responded in opposition on February 2, 2015. (ECF No. 55). Plaintiff replied on February 6, 2015. (ECF No. 56). A hearing was held on February 18, 2015. As provided below, Plaintiff's Motion to Enforce the Settlement Agreement is GRANTED. Plaintiff's request for sanctions, however, is DENIED WITHOUT PREJUDICE.
Plaintiff asserts that Defendant has failed timely to pay invoices as required by the settlement agreement. In a previously filed motion, Plaintiff sought an order compelling Defendant to abide by the terms of the settlement agreement. (ECF No. 46). Plaintiff did not seek specific enforcement of particular invoices nor make a specific monetary demand. ( Id. ). Defendant countered, at that time, that this Court lacked jurisdiction, that the motion lacked sufficient evidentiary support and that attorney's fees should not be awarded. (ECF No. 48). The Court declined to issue the order requested by Plaintiff, declined to order an award of attorney's fees and costs but ruled that it had jurisdiction to hear motions to enforce the settlement agreement. (ECF No. 52).
The instant motion renews Plaintiff's claim that Defendant has failed to make payments as required by the settlement agreement and seeks an order requiring the payment of $122, 858.23 for delinquent payments as of the time of the motion. Plaintiff again seeks sanctions in form of attorney's fees. (ECF No. 53). Defendant renews its objection to the jurisdiction of the Court, and disputes the amount owed and objects to any award of sanctions. (ECF No. 55).
The underlying action was filed in the Superior Court of California, County of San Diego, and was removed by Defendant to this Court on May 14, 2010. (ECF No. 1). In essence, Plaintiff claims that Defendant failed to pay funds to Plaintiff based upon insurance contracts between the parties. ( Id. ). On July 7, 2011, the parties filed a Joint Motion to Dismiss with Prejudice and requesting that the Court retain jurisdiction over the settlement. (ECF No. 41). On October 7, 2011, District Judge Marilyn L. Huff entered an Order granting the Joint Motion to Dismiss, dismissing the case with prejudice and retaining jurisdiction to enforce the settlement agreement. (ECF No. 42).
As relevant to the instant dispute, the settlement agreement provides that Defendant must pay ongoing defense fees and costs in connection with certain identified lawsuits. ( See ECF No. 46-1 Recitals ¶ B, Agreement ¶ 1.3). In particular, Defendant agreed to pay defense fees and costs in the identified lawsuits within sixty days of transmittal of invoices. ( Id. ¶ 1.3.3). Defendant was permitted an extra thirty days to raise any issues regarding an invoice with Plaintiff but was required to make payments no later than ninety days from the date the invoice was transmitted. ( Id. ). The parties agreed and consented to the continued jurisdiction of the Court to enforce the settlement agreement. ( Id. ¶ 1.4).
Defendant asserts that this Court lacks jurisdiction to enforce the settlement agreement. Defendant argues that despite the agreement of the parties that the Court retain such jurisdiction and its incorporation in the Order dismissing this case, the dismissal with prejudice precludes the exercise of jurisdiction. Defendant relies upon Shapo v. Engle, 463 F.3d 641, 643 (7th Cir. 2006), for the proposition that a district court cannot retain jurisdiction over a settlement agreement once the underlying case is dismissed with prejudice. The court of appeals in Shapo interpreted a Supreme Court case, Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994), as requiring that result. In Kokkonen, the Court ruled that a district court does not have inherent power to retain jurisdiction over a settlement agreement in cases that are voluntarily dismissed. Id. at 381-82. The Court stated, however, in language not mentioned in the Shapo opinion that:
The situation would be quite different if the parties' obligation to comply with the terms of the settlement agreement had been 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. In that event, a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist.
Id. at 381.
In this Circuit, unlike the Seventh, courts can retain ancillary jurisdiction over settlement agreements in cases dismissed with prejudice provided that the parties consent and the retention of jurisdiction is in the Order of dismissal. See K.C. v. Torlakson, 762 F.3d 963, 967 (9th Cir. 2014). Accordingly, as both prongs are met ...