Freshwater: A motion to compel settlement coming?

| 14 Comments

The Dennis family has made a request of the federal court in preparation for the filing of a motion to compel settlement in Doe v. Mount Vernon Board of Education, et al., in which John Freshwater is the sole remaining defendant. The request is to be permitted to file a motion under seal to compel settlement, the filing to be under seal because of the Court’s gag order concerning settlement negotiations.

Recall that the trial in that suit was slated to begin July 26, 2010, but Federal District Judge Gregory Frost nixed it under the impression that a settlement had been reached. In his order granting sanctions against Freshwater and Hamilton on August 2, 2010, Frost wrote

In their memorandum in opposition, Plaintiffs request judgement to be entered against Freshwater or for evidentiary inferences to be permitted against Freshwater at trial. That request, however, has been rendered moot by the settlement of this matter. (italics added)

Clearly Judge Frost thought a settlement had been reached, and since he has to approve any settlement he should know.

However, we’ve been waiting since then for an announcement of that settlement, and it hasn’t occurred. Now comes the notice of intention to file a motion to compel settlement. IANAL, but my impression is that a motion to compel settlement is filed when one party to an agreed settlement subsequently fails to adhere to the agreement. (See here for that language.) I infer, therefore, that whatever settlement that was agreed in July 2010 hasn’t been stuck to by Freshwater and/or Hamilton, and hence this request and the prospective motion to compel. Since Judge Frost’s gag order is still in effect concerning settlement discussions, all we have is the bare request to file under seal (pdf). The request to file the motion under seal was granted (pdf) by Judge Frost so the motion to compel settlement may be imminent.

14 Comments

this is like a soap opera where you never know what day or time the next drama is going to unfold… I look forward to every little Freshwater tidbit…

In federal practice, a “motion to compel settlement” ordinarily means not a failure to “adhere” to a negotiated settlement, but a failure to execute all of the documents necessary to make the settlement enforceable. “Failure to adhere” is ordinarily met with a motion to enforce, not compel, the settlement… because “adherence,” at least in federal practice, implies a written settlement agreement that a third-party judge not familiar with the underlying case could enforce just like she would any other contract.

This could be anything; it is most likely a failure to sign the settlement agreement documents and/or agree to the dismissal of the matter with the court retaining jurisdiction to enforce. In the abstract, this sometimes happens in commercial litigation when the parties have reached a settlement on the main terms, but the lawyers can’t reach an agreement on the appropriate language for certain other terms. For example, the two sides might not be able to agree on exact language for what claims are being released by the settlement — frequently, the defendant wants an “all claims between the parties” release, while the plaintiff wants an “all claims actually made and litigated” release. Sometimes these disagreements are legitimate, as when a defending insurer insists on too-broad a release due to corporate policy (a frequent problem in both intellectual property and personal injury litigation), while the plaintiff has reason to fear second-order consequences down the road and only feels able to release what they’ve actually fought over.

Or it could be something different. In my experience — and I’ve done a lot of complex litigation, some in Ohio and the Sixth Circuit, but not personal injury/civil rights work there — it is more probable than not that this is a lawyer-to-lawyer wrangle… but it could well be something entirely different. The key, though, is that a motion to “compel” indicates that the settlement was not reduced to a signed writing justifying a dismissal under Fed. R. Civ. P. 41.

“it is more probable than not that this is a lawyer-to-lawyer wrangle”

Being that one of those lawyers is Hamilton..

Seems just as likely that Freshwater, well known for his obstinacy, simply refused to sign the settlement he’d allegedly negotiated in good faith (pun intended).

Does Hamilton have anything to gain by stretching things out?

burk said: Does Hamilton have anything to gain by stretching things out?

Freshwater’s farm?

One or both may have realized that whatever was agreed to may have unintended consequences and want to re-negotiate. The Dennis’ side could easily be saying, “This is what you agreed to, now sign it already.”

I suppose in that situation, I might be inclined to say, “Sure. I’ll reopen negotiations…but it’ll cost you because there are some more things *I* want, too.”

–W. H. Heydt

Old Used Programmer

W. H. Heydt said: One or both may have realized that whatever was agreed to may have unintended consequences and want to re-negotiate.

Or, based on the timing (“That request, however, has been rendered moot by the settlement of this matter.”), Freshwater may have agreed to the settlement purely to ensnarl the trial proceedings. He and Hamilton certainly had plenty of time to contemplate the pitfalls of a settlement…

Mr Short, ever the optimist, answered a question at the levy meeting saying that he hoped the Freshwater termination hearing would be completed by Election Day. (“Short said he hopes that situation will come to an end by the time of the election incurring little in additional legal fees” http://www.mountvernonnews.com/loca[…]tion-on-levy)

Which got me thinking - didn’t Mr Shepherd give his time table as 10 days? And weren’t summaries and responses done months ago?

JRE said:

Mr Short, ever the optimist, answered a question at the levy meeting saying that he hoped the Freshwater termination hearing would be completed by Election Day. (“Short said he hopes that situation will come to an end by the time of the election incurring little in additional legal fees” http://www.mountvernonnews.com/loca[…]tion-on-levy)

Which got me thinking - didn’t Mr Shepherd give his time table as 10 days? And weren’t summaries and responses done months ago?

I had the same question. It made me start thinking that, for some reason, Shepherd is delaying his decision until election day or slightly before.

RBH, thoughts on this?

I call it the Clinton Defense.

Deny, deny, deny. Don’t sign anything, don’t do anything, just sit there until they are turning the key in the lock on the jail door.

Why be helpful? Freshwater has demonstrated zero honor, sir. Why should he change now?

Ralph said:

JRE said: Which got me thinking - didn’t Mr Shepherd give his time table as 10 days? And weren’t summaries and responses done months ago?

I had the same question. It made me start thinking that, for some reason, Shepherd is delaying his decision until election day or slightly before.

RBH, thoughts on this?

Recall that Hamilton requested and got two extensions for submission of the final brief and reply brief. Figuring from the tentative schedule Shepherd gave in the last hearing session, that would have pushed his own estimate of when his recommendation would be done to the end of September. He didn’t make that schedule, and we don’t know when it’ll be done. The 10 days he mentioned was counted from when Shepherd finished his review of the briefs, evidence, and testimony, so it’s kind of meaningless.

RBH, thanks again for the continued updates. Thanks to C.E. Petit for the technical translation.

How would, or could, this motion to compel settlement impact on the Freshwater vs. Mt Vernon BOE et al. case?

The Founding Mothers said:

RBH, thanks again for the continued updates. Thanks to C.E. Petit for the technical translation.

How would, or could, this motion to compel settlement impact on the Freshwater vs. Mt Vernon BOE et al. case?

My guess is no impact, though I suppose it depends on whether a settlement in the Doe case includes any admissions of wrong-doing on Freshwater’s part. That seems to me to be very unlikely. The Dennis family is not a party to the Freshwater suit, so any settlement with them in Doe doesn’t look to me like it would affect the Freshwater suit. Once again, though, IANAL.

RBH said:Once again, though, IANAL.

You’re also not crazy, which makes it very hard to predict what someone who is will do.

I’d be more concerned about how long all this is taking if I hadn’t been following the cases of a world-class procrastination team in the SCO v. Just About Everyone cases that have been going on for over 7 years.…so far.

(And I, too, greatly appreciate the time and effort you put into keeping us posted on the cases.)

–W. H. Heydt

Old Used Programmer

Thank you for the update.

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This page contains a single entry by Richard B. Hoppe published on October 16, 2010 12:23 AM.

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