United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION TO DISMISS
SETTLEMENT AGREEMENT; GRANTING DEFENDANT'S MOTION TO
ENFORCE SETTLEMENT AGREEMENT; AND ORDERING PLAINTIFF TO
EXECUTE AND RETURN THE JOINT STIPULATION OF DISMISSAL WITH
PREJUDICE TO DEFENDANT'S COUNSEL RE: DKT. NOS. 36,
H. KOH, United States District Judge.
the Court is a motion to dismiss the parties' settlement
agreement filed by Plaintiff Vernon Nellis
(“Plaintiff”), ECF No. 36 (“MTD”),
and a motion to enforce the parties' settlement agreement
filed by Defendant Cushfield Maintenance West Corp.,
erroneously sued as Cushman Maintenance West Corporation
(“Defendant”). ECF No. 42 (“MTE”).
Having considered the parties' submissions, the relevant
law, and the record in this case, the Court GRANTS
Defendant's motion to enforce and DENIES Plaintiff's
motion to dismiss.
to the settlement agreement, the Court orders that Plaintiff
execute and return, by July 8, 2019, the Joint Stipulation of
Dismissal with Prejudice to Defendant's counsel for
filing with this Court. By July 10, 2019, Defendant shall
file notice with the Court of Plaintiff's compliance or
noncompliance with the instant Order. If Plaintiff fails to
comply with the instant Order and the settlement agreement,
the Court will sua sponte dismiss Plaintiff's case with
around March 18, 2016, Plaintiff filed an individual claim
pro se with the California Labor Commissioner's Office
(“Labor Commissioner”) and alleged violations of
the California state labor laws governing overtime, minimum
wages, meal and rest periods, and payment of all wages due on
termination. ECF No. 42-1 (“Dollarhide Decl.”)
¶ 2. On January 17, 2017, a hearing was held in the San
Jose Office of the Labor Commissioner on Plaintiff's
claims. Id. On June 30, 2017, an “Order,
Decision, or Award of the Labor Commissioner” was
issued. Id.; see also ECF No. 42-2 at Ex. A
(“Labor Commissioner Order”). The Labor
Commissioner awarded Plaintiff $195.22 in unpaid overtime and
double premium wages, along with $22.30 for interest pursuant
to California Labor Code § 98.1, for a total award of
$217.52. See Labor Commissioner Order. The Labor
Commissioner determined that Plaintiff should take nothing in
connection with his meal period, rest period, liquidated
damages, and waiting time penalty claims. Id.
February 22, 2017, Plaintiff appealed pro se the Labor
Commissioner Order in the Superior Court of California,
County of Santa Clara. See Nellis v. Cushfield
Maintenance Corp., et al, No. 17CV306630 (the
April 7, 2017, the Department of Fair Employment and Housing
(“DFEH”) closed Plaintiff's pro se
discrimination case for the following reason:
“Investigated and Dismissed - Insufficient
Evidence.” ECF No. 1-1, Ex. 12. The DFEH also issued
Plaintiff a Notice of Right to Sue. Id. The notice
stated that any claim brought pursuant to federal
discrimination laws, including Title VII of the Civil Rights
Act, the Americans with Disabilities Act (“ADA”),
the Genetic Information Nondiscrimination Act
(“GINA”), or the Age Discrimination in Employment
Act (“ADEA”), would need to be filed within 90
days of the date Plaintiff received the notice. Id.
five months later, on September 5, 2017, Plaintiff filed a
second pro se action against Defendant--the instant putative
class action--in the Superior Court of Santa Clara County and
asserted, among other claims, various claims for violations
of the California Labor Code, violations of the federal Fair
Labor Standards Act, violations of Title VII and the
Americans with Disabilities Act, age discrimination, and
violations of the California Government Code. ECF No. 1-1. On
July 2, 2018, Defendant removed the case to this federal
Court. ECF No. 1. On July 2, 2018, Defendant also filed its
answer to Plaintiff's pro se complaint. ECF No. 1-2.
September 26, 2018, the parties filed a joint case management
statement, and Plaintiff acknowledged that he had been unable
to retain counsel for his putative class action. ECF No. 20.
On October 31, 2018, the parties filed a second joint case
management statement, and Plaintiff again acknowledged that
he had been unable to retain counsel for his putative class
action. ECF No. 26.
November 2, 2018, the Court referred the parties to a
settlement conference with United States Magistrate Judge
Nathanael Cousins and stayed the case. ECF No. 28.
parties participated in a settlement conference with Judge
Cousins on January 31, 2019. ECF No. 35. The settlement
conference was scheduled to begin at 9:30 a.m. ECF No. 32.
Mary Dollarhide, attorney for Defendant, attended the
settlement conference, and Plaintiff appeared pro se.
Dollarhide Decl. ¶¶ 5-6. Stephanie Mercer, Deputy
General Counsel of Cushman & Wakefield, Inc., resident in
Defendant's Dallas, Texas officer, also attended as the
Company representative. Defendant submitted the above
described facts and procedural history of Plaintiff's
case, including the Labor Commissioner Order, in the
Defendant's settlement conference statement and presented
them to Judge Cousins at the settlement conference. MTE at 3.
Cousins began with a brief joint session where he outlined
the settlement conference process. Dollarhide Decl. ¶ 7.
Judge Cousins explained that the parties would be situated in
different spaces during the day and that he would move back
and forth to communicate settlement positions and that
information provided by one side would not be presented to
the opposing party without express permission. Dollarhide
Decl. ¶ 7. Thus, as Plaintiff acknowledges, “at no
time were the merits of the case discussed directly between
the Defense counsel and the Plaintiff.” MTD at 13.
Cousins first met with Plaintiff in a conference room
adjacent to the courtroom, while Ms. Dollarhide and Ms.
Mercer waited in the courtroom. Dollarhide Decl. ¶ 8;
MTD at 13. Plaintiff represents that during his conversation
with Judge Cousins, Judge Cousins asked Plaintiff what he was
looking for, and Plaintiff responded that “he was tired
and would be willing to settle” as he found it
difficult emotionally “to go through the notes on the
case” and be reminded of his work situation. MTD at 13.
Ms. Dollarhide estimated that Judge Cousins spent more than 2
hours meeting with Plaintiff. Dollarhide Decl. ¶ 8. At
that point, Judge Cousins asked the parties to break for
lunch and return at 1:30 p.m. Id.
lunch, Judge Cousins met with Ms. Dollarhide and Ms. Mercer
to discuss the substance of the case and the Defendant's
settlement position. Id. Judge Cousins then
alternated meeting with Plaintiff and Defendant and
communicated each side's positions and proposed
settlement numbers throughout the afternoon. Dollarhide Decl.
¶ 9. Plaintiff rejected Defendant's first two offers
that were conveyed to him through Judge Cousins. MTD at 14.
point, Judge Cousins informed Ms. Dollarhide and Ms. Mercer
that Plaintiff had expressed concerns about his reputation
and potential negative reports to prospective employers that
might come from Company representatives. Dollarhide Decl.
¶ 9. In response, Ms. Dollarhide offered to prepare a
neutral letter of reference for Plaintiff and to provide him
with an exclusive point of contact in the Human Resources
Department who would not supply information beyond dates of
service, salary and position held. Id.
the end of the day, Judge Cousins recommended a settlement
number and that Ms. Dollarhide draft a neutral reference
letter and identify a Human Resources contact for Plaintiff.
Id. ¶ 10. Ms. Dollarhide drafted that letter in
the courtroom and Judge Cousins agreed to print the document
for Plaintiff's review. Id.; ECF No. 42-3 at Ex.
B (“Reference Letter”). Ms. Mercer accepted the
number proposed by Judge Cousins. Dollarhide Decl. ¶ 10.
Judge Cousins then presented the number and letter to
Plaintiff, and Plaintiff accepted. MTD at 14.
Dollarhide and Ms. Mercer were subsequently informed by Judge
Cousins that Plaintiff had agreed to the settlement number
and the non-monetary consideration. Dollarhide Decl. ¶
10; ECF No. 42-4 (“Settlement Agreement”). Ms.
Dollarhide then prepared a written settlement agreement in
the courtroom that memorialized the terms negotiated by Judge
Cousins. Dollarhide Decl. ¶ 11. Judge Cousins took the
agreement to Plaintiff and returned it with Plaintiff's
signature. Dollarhide Decl. ¶ 11. Ms. Mercer then signed
the settlement agreement in Ms. Dollarhide's presence.
Dollarhide Decl. ¶ 11. The settlement conference
concluded at 4:00 p.m. and Ms. Dollarhide and Mr. Mercer
never reconvened with Plaintiff because they left to catch
their flights. Dollarhide Decl. ¶ 12.
Dollarhide declared that Plaintiff appeared to be pleasant
during the minimal interactions they had during the course of
the settlement conference. Dollarhide Decl. ¶ 13.
Specifically, Ms. Dollarhide declared:
Throughout the course of the settlement conference, I
exchanged only pleasantries with Plaintiff. At the outset of
the day, he had been locked out of the courtroom, so I opened
the door for him and introduced myself to him along with Ms.
Mercer. When the parties broke for lunch, we encountered Mr.
Nellis and he asked me if I knew of any good lunch spots in
the area. I said that I could not assist him because I was
not from the area. In both exchanges, Mr. Nellis was pleasant
and did not appear to be upset or distraught. Indeed, he
appeared calm, prepared with files and documents, and capable
of managing his affairs. This was consistent with my prior
dealings with him on the phone. After the signing of the
settlement agreement and upon leaving the courtroom, I
observed Mr. Nellis, who was still in the other room. He did
not appear unnerved or upset. There was no indication to me
throughout the proceedings that Mr. Nellis was in any way,
shape, or form incapable of representing his own interests,
as he had apparently been doing for several years in the
various actions he had brought against the Company. Had that
been the case, I would not have proceeded to negotiate with
him through Judge Cousins.
Dollarhide Decl. ¶ 13.
settlement agreement that both parties signed provided that
Defendant would pay Plaintiff a settlement payment of $7, 500
and provide a reference letter and a point of contact for
future employment related inquiries regarding
Plaintiff. See Settlement Agreement at
Section 1(b). In exchange, Plaintiff agreed to release his
claims against Defendant. Id. at Section 2(a). In
addition, as a condition of the release, Plaintiff promised
to voluntarily dismiss the instant case and the Related
Action. Id. at Section 2(b). Plaintiff initialed
each page of the settlement agreement. See generally
Id. The last page of the settlement agreement contains
the signature of Plaintiff, Vernon Nellis, the signature of
Ms. Mercer, and the date, January 31, 2019. See Id.
on January 31, 2019, Judge Cousins entered a minute entry on
the docket that stated:
Settlement Conference held on 1/31/2019:
Case settled; dismissal to be filed.
Plaintiff: Vernon Ells.
Attorney for Defendant: Mary Catherine Dollarhide.
ECF No. 35.
never moved to voluntarily dismiss the instant action
pursuant to the terms of the settlement agreement. Instead,
two weeks after Plaintiff had signed the settlement
agreement, on February 15, 2019, Plaintiff filed his instant
motion to dismiss the settlement agreement. See MTD.
According to Plaintiff's motion to dismiss, Plaintiff now
believes that the settlement agreement should be rescinded
for duress, or mistake of fact and law, and fraud. MTD at
13-15. Plaintiff represents in his motion to dismiss that
during Plaintiff's first conversation with Judge Cousins,
Plaintiff “fought off tears with the whole experience
being re-lived coupled with having been sexually molested as
a child through teen years.” MTD at 13-14. Further,
Plaintiff takes issue with the fact that, according to
Plaintiff, Judge Cousins “stated [that] the Defense
counsel was unlikely to go up more and would be filing to
dismiss nearly all of the case based on statute of
limitations” and that “Judge Cousins had been
told by the Defense counsel the right to sue notice had
expired.” Id. at 14. Plaintiff also states
that “the presence of Judge Cousins and his eagerness
to complete the settlement and his own offer sitting in front
of the Plaintiff coupled with Judge Cousins stating the
Defense had a flight to catch was simply too much pressure.
The Plaintiff was under emotional duress and under physical
stress from sitting in the room six hours, then having a
[sic] Federal Judge Cousins present his own number on the
contract and hand a pen to the Plaintiff to sign, the
Plaintiff signed feeling extremely pressured and
overwhelmed.” Id. Plaintiff also complains
that he went home and could not sleep. Plaintiff also
represents that a “legal referral site reached out the
next day with two lawyers, ” and that “one of the
lawyers will take the case if the settlement agreement is
March 1, 2019, Defendant filed its instant motion to enforce
the settlement agreement and opposition to ...