United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
matter is before the court on a Motion to Enforce Settlement
filed by Defendant, Midvale Indemnity Company
(“Defendant” or “Midvale”), ECF No.
37, which was referred to the undersigned when United States
District Judge Bruce H. Hendricks granted the Motion to
Withdraw as Attorney of then-counsel for Plaintiff Sherye
Epps d/b/a Sunshine Shoes (“Plaintiff” or
“Epps”). The undersigned conducted a hearing on
November 14, 2017, at which Plaintiff appeared pro se and
Defendant appeared through its counsel of record, Jeffrey
Kull. As discussed more fully within, at that
hearing the undersigned considered Plaintiff's questions
about the settlement at issue, explaining that the agreed-to
settlement involves only the above-captioned litigation and
that the release Plaintiff is required to sign before
receiving her check is appropriate based on the terms the
parties agreed to in writing on June 29, 2017. Having
considered the documentary and testamentary evidence
submitted to the court and provided at the hearing, as well
as the additional filings of Plaintiff and Defendant related
to the Motion to Enforce Settlement, the undersigned
recommends Defendant's Motion to Enforce Settlement, ECF
No. 37, be granted. If this recommendation is adopted, the
settlement can be consummated and this matter will be ended.
Factual and procedural background
Filing in state court and removal to this court
Shoes, a therapeutic shoe company of which Plaintiff is the
sole proprietor, experienced property damage in
September/October 2015 as the result of a significant storm
and flooding. Plaintiff made a claim on her insurance policy
that had been issued by Midvale. Midvale denied
Plaintiff's claim, taking the position the policy did not
cover the loss. Appearing through her former counsel,
Plaintiff brought suit against Midvale for alleged breach of
the contract of insurance between Midvale and Sunshine Shoes
and for bad-faith refusal to pay a claim. Plaintiff filed her
Complaint in state court on or about May 20,
2016. While in state court, this matter had a
case number of 2016-CP-21-1243 (“state-court
action”). The state-court action also included Bolt
Insurance Agency (“Bolt”) as a Defendant. See ECF
(last visited Dec. 4, 2017).
25, 2016, a Stipulation of Dismissal was filed in state court
dismissing Bolt from the matter. ECF No. 1-2.
August 5, 2016, Defendant removed the matter to this court
based on the court's jurisdiction pursuant to 28 U.S.C.
§ 1332(a)(1). ECF No. 1. Jurisdiction pursuant to 28
U.S.C. § 1332, often called diversity-of-citizenship
jurisdiction, requires complete diversity of citizenship
between plaintiff and defendant and that the amount in
controversy exceed $75, 000. 28 U.S.C. § 1332. As
required when a case is removed, counsel for Defendant set
out the bases for § 1332 jurisdiction, noting that
Plaintiff and remaining-Defendant Midvale are citizens of
different states. Notice of Removal ¶ 3, ECF No. 1. To
support Defendant's assertion that the amount in
controversy exceeded $75, 000, Defendant provided the court
with Plaintiff's discovery responses in which Plaintiff
declined to agree that her potential damages would be no more
than $75, 000. ECF No. 1-3. Defendant's Notice of Removal
also included Midvale's Answer to the Complaint, which
had been filed while the matter was still in state court. ECF
filing in this court, the matter was initially assigned to
United States District Judge R. Bryan Harwell, with a civil
action number of 4:16-cv-2747-RBH. However, On August 10,
2016, the matter was reassigned to Judge Hendricks, which
gave it the current civil action number of 4:16-cv-2747-BHH.
removal Defendant gave written notice to the clerk of the
state court (in the Florence County Court of Common Pleas) as
required by 28 U.S.C. § 1446. See ECF No. 9,
9-1 (acknowledgement of the filing of notice of removal
signed by Clerk of Court, Florence County on August 15,
2016). Section 1446 provides that the filing of the Notice of
Removal in Florence County ended the matter in that court.
Section 1446 provides that “the State court shall
proceed no further unless and until the case is
remanded.” 28 U.S.C. § 1446. Online docket
information from the Florence County Court of Common Pleas
(state court) indicates the matter was dismissed by removal
to another court on August 15, 2016. See
(last visited Dec. 4, 2017). Although online records also
include a December 16, 2016 entry described as
“ADR/Alternative Dispute Resolution (Workflow), ”
that entry indicates it was completed on August 15, 2016, the
date of removal. Counsel for both parties attested at the
hearing that no ADR was done in state court.
undersigned notes that the state-court online records include
entries indicating Sherye Epps made an undescribed
“filing” in the closed state court action on
November 14, 2017 and filed a “Motion/Rule Failure to
Make Disclosure Sanctions” there on November 30, 2017.
See Id. Documents associated with these November
2017 filings are not available online. Nonetheless, the
undersigned again advises Plaintiff that the state-court
action was closed when the matter was removed to this court.
As the state court no longer has jurisdiction over this
matter, filings or activity there have no impact on this
Pretrial scheduling and mediation requirement
after removal, Judge Hendricks issued a Conference and
Scheduling Order and a Mediation Order on August 11, 2016.
ECF Nos. 6, 7. These orders included deadlines and
information routinely provided to civil litigants and their
counsel. Judge Hendricks' Mediation Order included
details and requirements for the court-ordered mediation. ECF
times counsel for Plaintiff and counsel for Defendant agreed
to and were granted extensions of the deadlines for
mediation, discovery, and related deadlines contained in the
court's scheduling orders. See ECF Nos. 15, 23,
27. The most recent scheduling order included a mediation
deadline of August 7, 2017. ECF No. 27.
Mediation and order of dismissal
29, 2017, with Karl A. Folkens serving as mediator, the
parties mediated this matter to a full resolution, and so
advised the court on June 30, 2017. On June 29, 2017, the
parties executed a “Mediated Settlement Agreement,
” (“MSA”). See ECF No. 37-1. The
MSA includes the caption of this litigation and sets out the
parties' agreement-including information about the sum to
be paid by Defendant, the release that Plaintiff will be
required to sign, as well as information about the payment of
mediation and the logistics of dismissing the matter in
court. See ECF No. 37-1 (quoted in its entirety
below). The MSA was signed by Plaintiff; her attorneys, Moore
and Evans; her mother, Mary Ann Epps; defense counsel J Kull; and
another party whose signature is not legible. At the
parties' request, Judge Hendricks issued a one-page Order
of Dismissal on July 5, 2017. ECF No. 29. In the Order, Judge
Hendricks indicated the parties had advised the court this
matter had been settled and dismissed this action
“without costs and without prejudice.” ECF No.
29. Further, the Order provided:
If settlement is not consummated within sixty (60) days,
either party may petition the Court to reopen this action and
restore it to the calendar. Rule 60(b)(7), F.R. Civ. P. In
the alternative, to the extent permitted by law, either party
may within sixty (60) days petition the Court to enforce the
ECF No. 29 (citing Fairfax Countywide Citizens v. Fairfax
Cnty., 571 F.2d 1299 (4th Cir. 1978)).
Matter reopened; Plaintiff's counsel relieved
still represented by counsel at the time, on July 28, 2017,
Plaintiff filed a pro se motion asking that the court grant a
six-month release from all creditors. See ECF Nos.
30-34. That motion, which was docketed as a Motion for
Extension of Time, made it clear to the court that the
agreed-to settlement had not been consummated. See
ECF No. 39. On August 3, 2017, Plaintiff's counsel moved
to withdraw from representing her, noting communication
issues between counsel and client. Plaintiff's
then-counsel also noted Plaintiff had filed for Chapter 13
bankruptcy. ECF No. 34. “Based on Plaintiff's
bankruptcy filing and her desire not to sign the General
Release, no disbursements have been made from
[Plaintiff's] settlement proceeds.” Id. at
2. Counsel advised they were maintaining the check in their
trust account pending resolution of issues concerning the
settlement. Id. On August 10, 2017, Defendant filed
the Motion to Enforce the Settlement now under consideration,
ECF No. 37.
on these filings, Judge Hendricks reopened this matter and
conducted a hearing on September 19, 2017. Plaintiff; her
then-counsel Moore and Evans; and defense counsel Kull
attended that hearing. See ECF No. 43. For reasons
discussed on the record during that hearing, Judge Hendricks
granted the motion of Plaintiff's counsel to withdraw
from representing her. Because this meant Plaintiff would be
proceeding pro se, the matter was assigned to the undersigned
magistrate judge for consideration of pretrial matters. Judge
Hendricks declined to rule on Defendant's Motion to
Enforce Settlement at that time. Id.
Proceedings since referred to the undersigned
accordance with the court's usual practice when pro se
litigants are involved, the undersigned issued an order on
September 21, 2017, advising Plaintiff of pleading and
practice rules applicable to pro se litigants. ECF No. 50. On
September 27, 2017, the undersigned instructed Plaintiff to
file a written response to Defendant's Motion to Enforce
Settlement no later than October 13, 2017. ECF No. 52.
Plaintiff provided some documentation to the court that was
docketed on October 3, 2017, ECF No. 58, although those
documents concern an unrelated matter. On October 4, 2017,
Plaintiff requested that the court appoint counsel for her
and that she be given an extension of time within which to
respond to the Motion to Enforce Settlement. ECF No. 58. The
court granted Plaintiff's request for an extension,
advising her to respond to the motion by November 3, 2017.
Plaintiff's request for appointed counsel was denied. ECF
then, Plaintiff has submitted voluminous filings to the court
in support of her questions about the settlement.
See ECF Nos. 60, 61, 62, 67, 68, 69, 73, 76, 77, 78,
83, 85, 86, 88 (filings and attachments, some duplicative,
totaling over 1500 pages). Defendant has provided additional
information in response to Plaintiff's filings and in
further support of the Motion to Enforce Settlement.
See ECF Nos. 42, 59, 74, 75. The undersigned
conducted a hearing on the Motion to Enforce Settlement on
November 14, 2017.
November 20, 2017, Plaintiff submitted another supplemental
filing, which is docketed as a Motion for Funds, Package
Settlement and Disbursement, and to Remove Bond Ride.
Plaintiff has since filed several supplements in support of
that Motion. ECF Nos. 86, 87, 88. The information contained
in ECF Nos. 86-88 reiterates issues raised in Plaintiff's
other filings or concerns unrelated matters. Accordingly, the
undersigned denied the Motion. ECF No. 89.
Standard in considering Motion to Enforce Settlement
courts have inherent authority, deriving from their equity
power, to enforce settlement agreements.” Hensley
v. Alcon Labs., Inc., 277 F.3d 535, 540 (4th Cir. 2002).
In order to exercise this power, a district court “(1)
must find that the parties reached a complete agreement and
(2) must be able to determine its terms and
conditions.” Id. at 540-41. In making these
determinations, courts generally rely on standard contract
principles. Topiwala v. Wessell, 509 F. App'x
184, 186 (4th Cir. 2013). The first step is to look to
“the objectively manifested intentions of the parties,
” to determine whether there was a meeting of the
minds. Moore v. Beaufort Cnty., 936 F.2d 159, 162
(4th Cir. 1991). To the extent “there is a factual
dispute over the existence of an agreement, over the
authority of attorneys to enter into the agreement, or over
the agreement's terms, the district court may not enforce
a settlement agreement summarily.” Hensley,
277 F.3d at 541 (emphasis in original) (footnote omitted).
Instead, the district court must hold a plenary evidentiary
hearing to resolve the dispute. Id. (quoting
Millner v. Norfolk & W. Ry. Co, 643 F.2d 1005,
1009 (4th Cir.1981)). In the event a settlement “has
been reached and its terms and conditions can be determined,
the court may enforce the agreement summarily as long as the
excuse for nonperformance of the agreement is
Hensley, 277 F.3d at 540 (quoting Millner,
643 F.2d at 1009) (internal citation omitted).
“[H]aving second thoughts about the results of a
settlement agreement does not justify setting aside an
otherwise valid agreement.” Young v. F.D.I.C,
103 F.3d 1180, 1195 (4th Cir. 1997).
only case at issue here, and thus the only litigation that is
the subject of the Mediation Settlement Agreement (MSA)
signed by Plaintiff and Defendant, is Epps v.
Midvale, Civil Action No. 4:16-cv-02747. Plaintiff has
correctly noted that at one time the case number included the
initials “RBH” at the end. Those initials
represent the United States District Judge to whom the matter
was initially assigned. See, e.g., ECF No. 30 at 1 (listing
both 4:16-cv-2727-BHH and 4:16-cv-2727-RBH). When reassigned
to Judge Hendricks, the initials “BHH” were
appended to the end of the case number. Similarly, when this
matter was referred to the undersigned, the initials
“KDW” were also added to the case number. The
case number in this court has never changed, and any change
in initials does not change what this case entails. Further,
this case is the same case as the one initial brought in the
Florence County Court of Common Pleas and given the case
number 2016-CP-21-1243. As noted above, when the matter was
removed the case became active in this court and the matter
was dismissed in the Court of Common Pleas.
summary of Plaintiff's claims and Defendant's
defenses in this matter is provided for clarity and for the
reader's information. The court's role in considering
the Motion to Enforce Settlement does not include making
specific findings of fact or conclusions of law concerning
the relative merits of Plaintiff's claims and
Defendant's defenses. See generally Hensley, 277
F.3d at 542 (noting court's role in considering such a
motion); Liberty Media Holdings, LLC v. FF Magnat
Ltd., No. 2:12-CV-01057-GMN, 2013 WL 1187520, at *2 (D.
Nev. Mar. 19, 2013) (noting court's finding that parties
“had reached an enforceable settlement agreement”
was not a resolution of the case's merits).
Complaint concerns one policy of insurance: commercial
insurance coverage issued by Midvale to Sunshine Shoes as
policy number BPP1000782 (the “Policy”). Compl.
¶ 6, ECF No. 1-1. Plaintiff attached a copy of the
Policy declarations as exhibit 1 to her Complaint. Ex. 1 to
Compl., ECF No. 1-1. The Midvale Business Owner's Policy
(“BOP”) was effective from November 17, 2014
until 12:01 AM on November 17, 2015. ECF No. 1-1 at 9. The
Policy's Location Address is 4001 E. Palmetto St.,
Florence, SC 29506. The policy indicates the Location
Coverage applies to all buildings at that address.
Id. The Policy Coverage is listed as follows:
Liability and Medical Expenses (per-occurrence limit/annual
$1, 000, 000/$2, 000, 000
Damage to Premises Rented to You: ...