Free Order on Motion to Enforce - District Court of Arizona - Arizona

MINUTES OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

KENNETH A. BATORY THE HONORABLE JOHN W. SEDWICK PROCEEDINGS:

v.

SEARS ROEBUCK AND COMPANY CASE NO. 2:02-cv-02026 JWS Date: May 31, 2007

ORDER FROM CHAMBERS

At docket 52, defendant Sears moves to enforce an oral settlement agreement with plaintiff Batory. The motion is supported by, among other things, a declaration from defense counsel Shawn Oller. In his declaration, Mr. Oller declares that, "On February 2, 2007, the parties, through their respective counsel, resolved this issue and reached a final settlement of the above-styled lawsuit." (Doc. 52-2 at para. 7 of the Oller Declaration.) The response to the motion is supported, inter alia, by the declaration of plaintiff's lawyer, Lynn M. Laney, Jr., who declares that he never told "Mr. Oller that we (Mr. Batory and/or myself) had accepted any of the offers or counteroffers that were made during these negotiations." (Doc. 55-2 at para. 4 of the Laney Declaration). Mr. Laney's Declaration goes on to point out that the proposed written agreement memorializing the settlement required a signature from Mr. Batory and also gave Mr. Batory an unequivocal right to revoke the settlement within 7 days after he signed it. (Doc. 55-2, exhibit 3). The court finds it unnecessary to decide which of the lawyers has accurately stated what transpired on February 2, 2007. Suffice it to say that even if Mr. Oller has it right, Mr. Batory never signed the contemplated written agreement and that even if he had, he could have revoked his acceptance of the settlement, something he surely would have done, for his affidavit makes clear that the proposed settlement was not satisfactory to him. (Doc. 55-2, Batory Declaration). For the above reasons, the motion at docket 52 is DENIED. Plaintiff's response at docket 55 requests an award of sanctions pursuant to Fed. R. Civ. P. 11. That request is DENIED for failure to comply with Rule 11 (c)(1)(A). Within 30 days from the date of this order, counsel shall confer. Within 35 days from the date of this order, counsel shall file a joint status report which sets out what tasks remain to be accomplished and an appropriate schedule for the completion of those tasks which will secure a prompt resolution of the parties' dispute.

Case 2:02-cv-02026-JWS

Document 59

Filed 06/01/2007

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