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Bowen v. Norfolk Southern Railway Co.

United States District Court, D. South Carolina, Spartanburg Division

October 25, 2019

Brandel Bowen, Plaintiff,
Norfolk Southern Railway Company, National Railroad Passenger Corp., Defendants.


          Kevin F. McDonald United States Magistrate Judge.

         This matter is before the court on the defendants' Motion for Settlement and for Sanctions Against Plaintiff (doc. 114), and the plaintiff's Motion for Abeyance (doc. 126). The motions were referred to the undersigned by the Honorable Timothy M. Cain, United States District Judge. As the undersigned recommends that the parties' settlement be enforced and the case dismissed, a report and recommendation is being submitted for final consideration by Judge Cain.


         The plaintiff, Brandel Bowen, represented by counsel Andrew C. Ausband and William Paul Walker, Jr., filed suit in 2016 in state court against the defendants for serious injuries he suffered in an Amtrak train derailment. The case was removed to this court on January 3, 2017 (doc. 1). More than two years later, on September 6, 2019, Mr. Walker contacted the court to advise that the case had settled and requested the entry of a “Rubin Order” dismissing the case (doc. 103). Judge Cain entered the Rubin Order the same day (doc. 104). On September 11, 2019, the court received a letter dated September 8, 2019, directly from Mr. Bowen, the plaintiff, objecting to the entry of the Rubin Order and asking that the case be reinstated to the docket for trial (doc. 105). In the letter, Mr. Bowen stated: “I'm in total disagreement with the terms and conditions of the dismissal and I have not signed any documents authorizing my case to be settled by my present counsel” (id.). Attached to the letter was a copy of a separate letter dated September 8, 2019, that the plaintiff sent to his attorneys, Mr. Ausband and Mr. Walker, in which he states:

I was shocked and surprised by your correspondence that my case was dismissed after I was preparing and getting ready for jury selection on September 11, 2019. In the email I received from your law firms on September 6, 2019[, ] there was a provision for me to object to this outcome within sixty (60) days.
This letter serves as my official notice and objection to the termination of my court case scheduled for October 28, 2019. A settlement has not been consummated in order to finalize my position on my case. I'm in total disagreement to the propose[d] settlement and legally I did not sign any documents approving the settlement or the removal of my case from the trial docket at the U.S. District Court.

(Doc. 105-1 at 1).

         The defendants thereafter filed a motion to enforce the settlement and for sanctions (doc. 114, with sealed exhibits A-D), and their motion was referred to the undersigned on September 30, 2019 (doc. 119). Counsel of record for the plaintiff then filed a response to the motion on October 8, 2019, along with a motion to hold the defendants' motion in abeyance, to allow Mr. Bowen the opportunity to retain new counsel, if appropriate (docs. 125; 126). By order dated the same day, the undersigned scheduled a hearing on the motions for October 21, 2019, and directed the plaintiff's counsel to provide to the plaintiff written copies of all pending motions, any responses, and the notice of hearing (doc. 128). On October 16th, the clerk of court received a telephone message from the plaintiff, asking that he be called. The call was returned the same day, and the plaintiff advised that he would be attending the hearing and that he was continuing to look for new counsel (doc. 129).

         At the hearing on October 21st, the plaintiff appeared, as did Mr. Ausband and Mr. Walker, as well as counsel for the defendants. In answer to the court's questions[1], the plaintiff indicated that he wanted to retain new counsel but had yet to do so. He confirmed that he had authorized Mr. Ausband and Mr. Walker to represent him throughout these proceedings, but stated he did not approve of the settlement, as it did not specifically address future medical expenses he may incur. In response, Mr. Ausband stated that a settlement that included open-ended future medical expenses was not possible, so he and Mr. Walker had agreed to reduce their fees and costs so as to allow the plaintiff to come away with a certain net amount acceptable to Mr. Bowen. Mr. Ausband produced an email dated September 4, 2019, addressed to Mr. Bowen (copying Mr. Walker) stating as such. A follow up email from Mr. Ausband the next day, September 5, 2019, addressed to the plaintiff and Mr. Walker, stated “I spoke with Brandel [the plaintiff] this morning and he has authorized us to settle at [the settlement amount][2] (provided he gets [the certain net amount]). Brandel wants to make sure if Amtrak agrees to pay our demand, they put it [in] writing, which I assured him was standard op procedure” (doc. 131, court exhibit 1, filed under seal). Via emails exchanged with Mr. Ausband and Mr. Walker dated September 6th, defense counsel Bill Stewart was contacted and agreed to the settlement amount (docs. 114-2; 114-3; 114-4). That same day, Mr. Walker contacted the court to advise of the settlement and request the entry of a Rubin Order, which, as noted, was filed the same day (see docs. 103; 104). When Mr. Walker received the Rubin Order via this court's electronic case filing system on September 6, 2019, he forwarded it by email to Mr. Bowen, saying, “This is the court order entered this day by USDC Judge Tim Cain. All proceedings for next week are cancelled in light of this settlement. This was a very good decision.” (doc. 131, court exhibit 2, filed under seal). Mr. Bowen responded by email later that same day: “Unfortunately I don't think so! They should pay for my Attorney fee and medicals. I explained this on several occasions. I'm not sure if I'm going to take it. This was forced on me in a way that's making me very uncomfortable. I feel like I have been taken advantage of! Period! Not happy at all” (id.).


         This Court may enforce settlement agreements reached in cases before it. See Hensley v. Alcon Labs., Inc., 277 F.3d 535, 540 (4th Cir. 2002). To do so, the court must find that the parties reached a settlement, and that it is able to discern its terms. Id. at 540-41. “Motions to enforce settlement agreements draw upon standard contract principles.” Bradley v. Am. Household, Inc., 378 F.3d 373, 380 (4th Cir. 2004). Under South Carolina law, an exchange of writings constitutes a contract if there was an offer and acceptance for valuable consideration. Roberts v. Gaskins, 486 S.E.2d 771, 773 (S.C. Ct. App. 1997). “It is generally accepted that when a client retains an attorney to represent him in litigation, absent an express agreement to the contrary, the attorney has implied authority to conduct the litigation and negotiate its resolution.” Auvil v. Grafton Homes, Inc., 92 F.3d 226, 229-30 (4th Cir. 1996). Moreover, it is a long-standing rule in South Carolina that a client is bound by his lawyer's actions in the settlement of a case. Shelton v. Bressant, 439 S.E.2d 833, 834 (S.C. 1993) (holding that “[a]cts are directly attributable to and binding upon the client. Absent fraud or mistake, where attorneys of record for party agree to settle a case, the party cannot later repudiate the agreement” (internal quotation marks and citation omitted)). Moreover, a failure by the parties to execute formal settlement documents does not negate their agreement to settle the case. Sadighi v. Daghighfekr, 66 F.Supp.2d 752, 763 (D.S.C. 1999). When a settlement has been reached, a party does not retain the option to rescind the agreement. Petty v. Timken Corp., 849 F.2d 130, 133 (4th Cir. 1988).

         Here, the above-cited emails exchanged between Mr. Bowen, Mr. Ausband, and Mr. Walker, and those exchanged between Mr. Ausband, Mr. Walker, and Mr. Stewart, clearly demonstrate that the parties reached a settlement. As plainly set forth in the September 4th email, Mr. Ausband expressed to Mr. Bowen how the target settlement amount would net more to Mr. Bowen than a projected higher verdict amount (doc. 131, court exhibit 1, filed under seal). The follow-up email from Mr. Ausband on September 5, 2019, memorializes his conversation with Mr. Bowen, confirming Mr. Bowen's agreement to settle: “I spoke with Brandel this morning and he has authorized us to settle at [the settlement amount] (provided he gets [the net amount])” (id.). Despite receiving this email, Mr. Bowen did not respond to the email with any objection. After the offer was communicated to and accepted by defense counsel Mr. Stewart, via the emails dated September 6th (docs. 114-2; 114-3; 114-4), Mr. Walker notified the court of the settlement, and upon receipt of the Rubin Order on September 6th, forwarded it by email that same day to the plaintiff (doc. 131, court exhibit 2, filed under seal). Only then, after the offer had been made and accepted, and after Judge Cain issued the Rubin Order dismissing the case, did the plaintiff raise an objection in response to Mr. Walker's September 6th email (id.). The plaintiff does not dispute this chronology or his receipt of the emails, and clearly his change of mind regarding the settlement came too late.

         As cited by the defendants, a similar result was reached in Crawford v. Nat'l Honorary Beta Club, C/A No. 7:14-2970-GRA, 2015 WL 12806590, at *1 (D.S.C. Oct. 8, 2015), which also involved a settlement agreement negotiated and agreed to over emails by the parties' attorneys. In Crawford, defense counsel sent an email to plaintiff's counsel stating that his client's final offer was to pay $17, 000 in exchange for a full release to settle the case. The plaintiff's attorney responded, “17, 000, agreed” and provided instructions for payment. Id. at 1. The plaintiff's attorney later sent defense counsel an email advising that his client “had done a complete 180.” Id. at 1 n.3. The defendant thereafter filed a motion to enforce the settlement agreement and the court found that the emails constituted an enforceable settlement agreement. Id. at *2. The court reasoned that the plaintiff had freely and voluntarily agreed to settle her case, and although the agreement had not been reduced to a formal writing, plaintiff could not “set aside the agreement because she ha[d] second thoughts about the settlement amount.” Id. As occurred in Crawford, the parties here formed an enforceable agreement to settle their case, supported by an offer, acceptance, and valuable consideration. Once the agreement was in place, the plaintiff was bound by it.

         In summary, Mr. Ausband and Mr. Walker were authorized to settle Mr. Bowen's case, and Mr. Bowen has not presented evidence of fraud or mistake. Moreover, emails confirm in writing that an offer to settle by Mr. Ausband and Mr. Walker was made to and accepted by defense counsel Mr. Stewart (and noticed to the court via request for entry of a Rubin order) prior to Mr. Bowen's emailed objection and attempted rejection of the settlement amount. ...

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