United States District Court, D. South Carolina, Spartanburg Division
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge.
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.
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
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).
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).
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, 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] (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”
LAW AND ANALYSIS
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.
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.
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.
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.