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Concordia Partners, LLC v. Ward

United States District Court, D. Maine

July 9, 2014

CONCORDIA PARTNERS, LLC, Plaintiff/Counterclaim Defendant,
DAVID S. WARD, Defendant/Counterclaim Plaintiff.


GEORGE Z. SINGAL, District Judge.

Before the Court are the Motion to Enforce Settlement Agreement by Concordia Partners, LLC and Jeff McKinnon (ECF No. 94) and the Motion to Dismiss Counterclaims and Third-Party Claims Without Prejudice by David Ward (ECF No. 93). Following a conference of counsel on December 12, 2013, the parties agreed to submit a supplemental stipulated record and briefs and thereby submit the issues raised by these motions for resolution by this Court on the papers (ECF No. 109). Having received those materials and reviewed them, along with the entire record, the Court now GRANTS the Motion to Enforce Settlement and, as a result, finds Ward's Motion to Dismiss Counterclaims and Third-Party Claims Without Prejudice MOOT.


"A party to a valid settlement agreement may ask the courts to enforce that agreement when the other party refuses to comply." Silva v. F/V Silver Fox LLC, CIV.A. 13-10572-FDS, ___ F.Supp.2d ___, 2013 WL 5970703 at * 2 (D. Mass. Oct. 31, 2013) ( citing Quint v. A.E. Staley Mfg. Co. , 246 F.3d 11, 14 (1st Cir. 2001); Petition of Mal de Mer Fisheries, Inc. , 884 F.Supp. 635, 637 (D. Mass. 1995)). "The law does not require that an agreement be signed in order for contracting parties to be bound." N. Maine Transp., LLC v. OneBeacon Am. Ins. Co. , 820 F.Supp.2d 139, 145 (D. Me. 2011); see also Fid. & Guar. Ins. Co. v. Star Equip. Corp. , 541 F.3d 1, 6 (1st Cir. 2008) (fact that agreement contemplated "execution of a more formal agreement" did not preclude enforcement of hand-written agreement). However, "[i]n order to be binding, a settlement agreement requires the mutual intent of the parties to be bound by terms sufficiently definite to enforce." Muther v. Broad Cove Shore Ass'n , 968 A.2d 539, 541 (Me. 2009) (citing Forrest Assocs. v. Passamaquoddy Tribe , 760 A.2d 1041, 1044 (Me. 2000)).

Ultimately, "[s]ettlement agreements are analyzed as contracts, and the existence of a binding settlement is a question of fact." Muther , 968 A.2d at 541 ( citing Marie v. Renner , 946 A.2d 418, 420 (Me. 2008).) Thus, a "trial court may summarily enforce [a settlement] agreement, provided that there is no genuinely disputed question of material fact regarding the existence or terms of that agreement." Fid. & Guar. Ins. Co. , 541 F.3d at 5.


This case was initially filed in state court on or about March 29, 2012. On April 25, 2012, Defendant David Ward removed the matter to federal court. The case then proceeded on an ordinary scheduling track. On June 7, 2013, the parties jointly sought a stay of all scheduling deadlines indicating that they had "reached a settlement in principle that will resolve all claims" but would need 90 days to finalize the settlement. (Joint Mot. to Amend Scheduling Order (ECF No. 84) at 1.) On June 20, 2013, the magistrate judge convened a brief telephonic conference of counsel. Following that conference, the magistrate judge entered an order granting the joint motion thereby giving the parties until September 18, 2013 to file a stipulation of dismissal (ECF Nos. 87 & 88).

The parties' joint request for a stay and pronouncement of a "settlement in principle" was the culmination of an extended settlement negotiation. The record now before the Court provides extensive evidence of those negotiations.[1] First, the record reflects that the two principals in this underlying business dispute, Defendant and Third Party Plaintiff David Ward ("Ward") and Third Party Defendant Jeff McKinnon ("McKinnon"), who is also President and CEO of Concordia Partners LLC, agreed to meet on or about March 13, 2013 "to try to resolve the case" without counsel present. (3/8/13 Email from Attorney Dilworth to Attorney Nelson (ECF No. 94-2 at PageID # 991).) All of the attorneys involved in this matter were aware of this meeting and agreed that these discussions between Ward and McKinnon would be subject to F.R.E. 408.

Following the meeting of Ward and McKinnon, Attorney Dilworth circulated "proposed settlement terms" for review by all counsel on March 29, 2013. (3/29/13 E-Mail from Attorney Dilworth to Attorneys De Vos & Nelson (ECF No. 94-2 at PageID # 993).) The record then reflects that additional direct discussions took place between Ward and McKinnon after which Ward indicated that the two "pretty much got there' in our phone calls" and that the attached outline reflected "the deal [Ward] can do." (4/18/13 E-mail from Ward to McKinnon (ECF No. 111 at PageID # 1289).)[2] However, Ward also indicated that drafting still needed to occur and he was expecting it to be "entirely neutral." (Id.) Thereafter, Attorney Wertheimer circulated revised settlement terms to all counsel based on her understanding of "further communication between our clients regarding settlement." (4/24/13 Email from Wertheimer to Nelson & De Vos (ECF No. 94-2 at PageID # 995).) On April 30, 2014, Attorney Dilworth then circulated further revisions to the settlement terms that "attempted to address concerns regarding confidentiality." (4/30/13 E-mail from Dilworth to Nelson & De Vos (ECF No. 94-2 at PageID # 997).) Attorney Dilworth additionally wrote that, "If we are in agreement about these terms, I'm sure both sides would like to wrap up this case quickly." (Id.)

The next piece of correspondence in the record is a May 2nd e-mail from Attorney De Vos in which he indicated that the parties "are substantially there on the terms of the settlement." (5/2/13 E-mail from De Vos to Dilworth (ECF No 94-2 at PageID #1000).) Attorney De Vos noted that his mark-ups reflected two changes: one relating to Ward remaining a member of Concordia and the other relating to the potential for McKinnon to approve later voting by Ward in situations in which McKinnon might be required to abstain. (See id.) Attorney De Vos also indicated that Ward was seeking $50, 000 in reimbursement costs but was flexible on the source of that reimbursement. (See id.) On May 6, 2013, Attorney Wertheimer circulated a revised term sheet and noted, in relevant part, that the May 2nd changes proposed by Attorney De Vos were "accepted... with two basic exceptions, both of which should be unobjectionable." (5/6/13 E-mail from Wertheimer to De Vos & Nelson (ECF No. 94-2 at PageID #1002).)[3] This e-mail additionally indicated that counsel was working with the insurer on the monetary terms and would be in touch regarding the monetary component soon. (See id.) On May 8, 2013, Attorney De Vos responded, in relevant part, as follows:

We have reviewed the settlement term sheet among our team and, assuming that the $50, 000 number is added to cover some of the costs involved as we have indicated and the drafting of the final documents reflect the term sheet, we are satisfied and are prepared to settle this litigation on the terms proposed.

(5/8/13 E-mail from De Vos to Wertheimer & Dilworth (ECF No. 94-2 at PageID # 1010).) Attorney De Vos then proposed that the parties inform the Court of the "settlement in principle" and ask for a stay of deadlines while they "finaliz[e] the paperwork to put this litigation behind us." (Id.)

The record next reflects an e-mail, dated May 28, 2013, from Ward to McKinnon. (5/28/13 E-mail from Ward to McKinnon (ECF No. 111-11291).) In this e-mail, Ward indicated that he and McKinnon had talked by phone and "agree that we have substantially come to a settlement understanding" with only a monetary issue remaining. Ward proposed that the monetary issue should be resolved by Concordia paying the difference between $50, 000 and the amount the insurer is willing to pay. Beyond that, Ward expressed concern regarding "the drafting" and proposed they both remain closely involved to avoid problems. (Id.)

On June 4, 2013, Attorney Wertheimer emailed all counsel explaining that direct conversations between Ward and McKinnon have resulted in a monetary settlement term of $35, 000. She asked counsel to confirm this understanding and indicated that upon confirmation, the settlement agreement would be drafted and she would notify the court of the settlement in principle. (6/4/13 E-mail from Wertheimer to De Vos (ECF No. 94-2 at PageID # 1012).) In a response sent the very next business day, Attorney De Vos stated he was "happy to confirm your understanding" and agreed that the Court should be notified that there is an "agreement in principle." (6/5/13 E-mail from De Vos to Wertheimer (ECF No. 94-2 at PageID # 1014).) As ...

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