The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VICKIE PITTMAN, CIVIL ACTION
Plaintiff
VERSUS NO. 19-11933
MARRIOTT INTERNATIONAL, SECTION: “E”(5)
INC., ET AL.,
Defendants
ORDER AND REASONS
Before the Court is a motion to enforce settlement filed by Defendant Marriott
Hotel Services, Inc. (Marriott).1 For the following reasons, the motion is DENIED.
BACKGROUND
This case arises out of pro se Plaintiff Vickie Pittman’s alleged slip and fall accident
on August 17, 2017, at the Marriott New Orleans.2 On January 24, 2020, Defendants’
counsel conveyed a written settlement offer of $32,500 to Matthew Hemmer of Morris
Bart, LLC, who was Pittman’s counsel at that time, via email.3 On the same day, Hemmer
sent an email to Defendants’ counsel in which he said “[a]greed and accepted.”4 On
January 25, 2020, Hemmer provided his firm’s W-9 to Defendants’ counsel to enable the
settlement without tax withholding.5 On March 6, 2020, the Court issued an Order of
Dismissal stating “the Court specifically retains jurisdiction to enforce the settlement
agreement if settlement is not consummated within sixty days.”6 Defendant Marriott then
1 R. Doc. 16. Intervenor Plaintiff Morris Bart, LLC filed a response. R. Doc. 22. Defendant Marriott filed a
reply. R. Doc. 27.
2 R. Doc. 1-1.
3 R. Doc. 16-4.
4 R. Doc. 16-5.
5 R. Doc. 16-6.
6 R. Doc. 15.
issued a check for $32,500 and sent it to Morris Bart, LLC, but the firm never negotiated
the check.7
On May 20, 2020, Marriott filed the instant motion to enforce settlement arguing
Pittman has not fulfilled her obligations under the settlement agreement of January 24,
2020, because she did not negotiate the settlement check and did not execute a release.8
Marriott requests the Court enforce the settlement agreement by an order of specific
performance.9 On June 5, 2020, Hemmer withdrew from representing Pittman,10 and
Morris Bart, LLC filed an intervenor complaint against Pittman.11 During a status
conference on July 31, 2020, in which Pittman, counsel for Defendants, and Hemmer
participated, Pittman informed the Court she opposes the motion to enforce settlement
and represented she did not authorize Hemmer to agree to the settlement on her behalf.12
LAW AND ANALYSIS
Federal courts “apply general principles of state contract law to resolve issues of
contract formation.”13 Accordingly, the Court applies Louisiana law to determine whether
the parties reached an enforceable settlement agreement. Louisiana Civil Code article
3071 provides:
A compromise is a contract whereby the parties, through concessions made
by one or more of them, settle a dispute or an uncertainty concerning an
obligation or other legal relationship.14
7 R. Doc. 32.
8 R. Doc. 16; R. Doc 16-4, at 1.
9 R. Doc. 16-1, at 2.
10 R. Doc. 23.
11 R. Doc. 24.
12 R. Doc. 32.
13 Hill v. Hornbeck Offshore Services, Inc., 799 F. Supp. 2d 658, 661 (2011) (E.D. La. 2011) (citing Fleetwood
Enters., Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002)).
14 LA. CIV. CODE art. 3071.
The two elements of a compromise are: “(1) mutual intention of putting an end to the
litigation, and (2) reciprocal concessions of the parties to adjust their differences.”15 In
this case, the Court finds the purported settlement agreement between Pittman and
Defendants on January 24, 2020, is not enforceable because the parties did not share a
“mutual intention of putting an end to the litigation.”16 Specifically, Hemmer did not
posses the authority to enter into a settlement agreement on Pittman’s behalf, and
Pittman did not consent to the agreement discussed on January 24, 2020.
“Attorneys are presumed to have the authority to negotiate a settlement proposal
for their clients, however, they may not enter into a binding agreement without the client’s
clear and express consent.”17 “Defendants are presumed to be aware of these
requirements of the law and assume the risk of their failure to determine that such
requirements have been met.”18 In F&S Equipment Co. v. International Matex Tank
Terminals, the Louisiana Court of Appeal for the Fourth Circuit determined the plaintiff
was not bound by his attorney’s agreement to settle a case because the plaintiff did not
consent to the settlement.19 In support of this finding, the Court noted the plaintiff never
negotiated the tendered settlement check and never signed the desired release
agreement.20 Accordingly, the Court stated, “Without some evidence of a[n] appellant’s
15 Brown v. Drillers, Inc., 630 So.2d 741, 747 n.8 (La. 1994). Marriott emphasizes Louisiana law requires a
settlement agreement be reduced to writing. LA. CIV. CODE art. 3071. The Court agrees the writing
requirement is satisfied by the order of dismissal issued in this case. May v. Hummingbird Aviation, LLC,
No. CV 08-1190, 2009 WL 10679749, at *3 (E.D. La. Dec. 16, 2009) (citing Mull v. Marathon Oil Co., 658
F.2d 386, 388 (5th Cir. 1981)).
16 Brown, 630 So.2d at 747 n.8.
17 F&S Equip. Co. v. Int'l Matex Tank Terminals, 469 So. 2d 256, 257 (La. Ct. App. 1985), writ denied sub
nom. F & S Equip. Co. v. Int'l-Matex Tank Terminals, 475 So. 2d 358 (La. 1985) (citing Singleton v. Bunge
Corp., 364 So.2d 1321 (La. Ct. App. 1978)).
18 Townsend v. Square, 94-0758 (La. App. 4 Cir. 9/29/94), 643 So. 2d 787, 790.
19 F&S Equip. Co., 469 So. 2d at 257.
20 Id.
consent we must find that the ‘settlement agreement’ at issue herein does not comply with
Civil Code Article 3071 and hence is not enforceable.”21
Similarly, in Townsend v. Square, the Louisiana Court of Appeal for the Fourth
Circuit determined letters sent between the lawyers for the plaintiff and the defendants
in that case did not form an enforceable settlement agreement because “nothing in the
letters show[ed] that [the plaintiff] acquiesced in a settlement.”22 The court also rejected
the defendants’ argument they were justified in relying on the plaintiff’s lawyer’s
“apparent authority” to settle the claim.23 The court stated, “defendants fail to
demonstrate a reasonable basis in the letters for concluding that [the plaintiff’s counsel]
had authority to enter a binding settlement agreement without first obtaining [the
plaintiff]’s acquiescence and approval.24
In this case, there is no indication in the emails between Marriott’s counsel and
Hemmer that Pittman consented to settling this case for $32,500.25 To the contrary, there
is ample evidence Pittman did not consent to such a settlement. First, as in F&S
Equipment Co., Pittman never negotiated Marriott’s settlement check and never signed a
release agreement. As a result, “[w]ithout some evidence of[ Pittman]’s consent we must
find that the ‘settlement agreement’ at issue herein does not comply with Civil Code
Article 3071 and hence is not enforceable.”26 Second, Hemmer did not have the “apparent
authority” to settle this matter. As in Townsend, there is no “reasonable basis in the
[emails between Hemmer and Defendants’ counsel] for concluding that [Hemmer] had
21 Id.
22 Townsend, 643 So. 2d at 791.
23 Id.
24 Id.
25 R. Doc. 16-4; R. Doc. 16-5.
26 F&S Equip. Co., 469 So. 2d at 257.
authority to enter a binding settlement agreement without first obtaining [Pittman]’s
acquiescence and approval.27
CONCLUSION
IT IS ORDERED that Defendant Marriott’s motion to enforce settlement is
DENIED.28
The Clerk of Court shall serve a copy of this order by regular mail addressed to
Plaintiff at the address listed below. The Clerk of Court also shall serve a copy of this order
by e-mail to Plaintiff at the e-mail address listed below.
Clerk to Notify via Regular Mail:
Vickie Pittman
4402 Atwood Drive.
Tampa, FL 33610
Clerk to Notify via E-Mail:
Vickie Pittman
vickieetta7@ yahoo.com.
New Orleans, Louisiana, this 6th day of August, 2020.
S .
SUSIE no
UNITED STATES DISTRICT JUDGE
27 Townsend, 643 So. 2d at 791.
28 R. Doc. 16.