Coleman v. Capital Link Management, LLC

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

KRISTIE COLEMAN )

)

v. ) Case No. 3:21-cv-0271

)

CAPITAL LINK MANAGEMENT, LLC; )

SAMUEL PICCIONE; DENISA )

PICCIONE; and JONATHAN RINKER )

To: The Honorable Waverly D. Crenshaw, Jr., Chief United States District Judge

REPORT AND RECOMMENDATION

Pending before the Court are (i) Plaintiff’s motion to enforce settlement agreement (Docket

No. 45) and (ii) Plaintiff’s [amended] motion to strike response in opposition to the motion to

enforce settlement agreement. (Docket No. 49.) For the reasons discussed below, the undersigned

respectfully recommends that Plaintiff’s motion to enforce settlement agreement be GRANTED IN

PART and Plaintiff’s motion to strike be denied as moot.

Background

Familiarity with this case is presumed and only the factual and procedural background

necessary to explain or give context to this report and recommendation are recited. Plaintiff brought

this case under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (the “FDCPA”),

for allegedly false statements and misrepresentations made by Defendants, whom Plaintiff contends

are debt collectors attempting to collect a debt within the meaning of the FDCPA. Following an

initial case management conference, a case management schedule and plan were adopted (Docket

No. 33) and the case was set for trial. (Docket No. 34.)

Shortly thereafter, Defendants’ counsel filed a motion to withdraw (Docket No. 37), which

was conditionally granted, and Defendants were directed to retain substitute counsel. (Docket No.

39.) However, new counsel did not enter any appearance on behalf of Defendants by the deadline

of February 4, 2022. (Id.)

The parties were directed to participate in a status/case management conference on April 1,

2022, unless a settlement was reached prior to that date during mediation scheduled for March 31,

2022. (Docket No. 36.) The parties did not notify the Court of a settlement prior to the April 1

status/case management conference. Nor did any party join the telephonic conference at the

designated time. However, the mediator, Magistrate Judge (Ret.) Joe B. Brown, advised the Court

that, during a routine follow up with the parties prior to the scheduled mediation, he was notified

that the case had settled. (Docket No. 42.)

Accordingly, the Court instructed Plaintiff to submit a motion for dismissal or other filing in

resolution of the case by May 2, 2022. (Id.) On April 29, 2022, Plaintiff filed a notice of settlement

(Docket No. 43) and requested until July 5, 2022, to submit a filing in resolution of the case. The

Court permitted Plaintiff until July 8, 2022, to seek final resolution. (Docket No. 44.)

On July 8, 2022, Plaintiff filed the instant motion to enforce settlement agreement (Docket

No. 45)1, in which she seeks payment of a then-unpaid settlement payment and attorneys’ fees.2

Defendants filed a response in opposition to the motion, contending that the final settlement

payment was made and that the requested attorneys’ fees are neither appropriate nor reasonable.

1 The Court notes that the exhibits appended to Plaintiff’s motion do not include the

mandatory description of exhibits required by the Court’s CM/ECF filing requirements. By

unnumbered docket entry on July 12, 2022, Plaintiff’s counsel was instructed by the Clerk to file a

notice listing each exhibit with a brief description, which was not done. This has resulted in an

inordinate expenditure of judicial resources in scrolling through the general filings to reference

specific exhibits. Plaintiff’s counsel are reminded of their obligation to comply with the Court’s

CM/ECF filing requirements and that the failure to do so may result in adverse consequences,

including affecting their continued ability to practice in this Court.

2 The final settlement payment was subsequently made. See Docket No. 47-1 at 2.

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(Docket No. 47.)3 Plaintiff then filed a motion to strike the response, or alternatively, to treat the

motion to strike as a reply. (Docket No. 49.) Plaintiff asserts that the attorneys who filed the

response on behalf of Defendants were not properly retained, as they had previously withdrawn.4

Analysis

A district court has the inherent power to enforce a settlement agreement between parties in

litigation. Bamerliease Capital Corp. v. Nearburg, 958 F.2d 150, 152 (6th Cir. 1992); Brock v.

Scheuner Corp., 841 F.2d 151, 154 (6th Cir. 1988). A court can exercise this power “even if that

agreement has not been reduced to writing.” Bowater N. Am. Corp. v. Murray Mach., 773 F.2d 71,

77 (6th Cir. 1985). The power of a trial court to enforce a settlement agreement “has its basis in the

policy favoring the settlement of disputes and the avoidance of costly and time-consuming

litigation.” Kukla v. National Distillers Products Co., 483 F.2d 619, 621 (6th Cir. 1973).

“Whether the parties actually reached an agreement is a question of fact for the district

court,” Moore v. U.S. Postal Serv., 369 F. App’x. 712, 717 (6th Cir. 2010), which is governed by

state contract law. See Cuyahoga Valley Ry. Co. v. U.S. Bank Trust Nat’l Ass’n, 515 F. App’x. 494,

498 (6th Cir. 2013) (“Because settlement agreements are a type of contract, the formation and

enforceability of a purported settlement agreement are governed by state contract law.”).5 Here, there

does not appear to be any dispute that the parties entered into a settlement agreement. See Docket

3 See also Docket No. 49 at 4 (indicating that final settlement payment was made on July

11, 2022).

4 The Court addressed this issue by requiring Defendants’ counsel to file proper notices of

appearance (Docket No. 50), which they did, and the Court therefore finds it unnecessary to spend

additional time on this argument.

5 The settlement agreement provides that Tennessee law governs. (Docket No. 45-1 at 23.)

Defendants do not argue that any other state law controls.

3

No. 47 at 1-2 (Defendants’ response acknowledging the parties’ settlement).6

Instead, the dispute centers around whether “attorneys’ fees were actually incurred by

Plaintiff” and the sufficiency of the evidence as to the reasonableness of the claimed attorneys’ fees.

(Docket No. 47 at 2.) Defendants argue that the request for attorneys’ fees must be denied because

Plaintiff “failed to demonstrate that the attorneys’ fees were actually incurred.” (Docket No. 47 at 2.)

This is an incorrect statement of the law.7 Under Tennessee law on contractual fee-shifting, the term

“incurred” means the ordinary parlance of becoming liable for or obligated to pay. Developers

Diversified of Tennessee, Inc. v. Tokio Marine & Fire Insurance Co., 2019 WL 1861322, at *7-8

(M.D. Tenn. Apr. 25, 2019).8 Here, the Court finds sufficient evidence that attorneys’ fees were

incurred by Plaintiff. See Docket No. 49-1.

However, Plaintiff’s argument that no invoices or other documentation of the incurred fees is

required goes too far. The requesting party bears the burden of demonstrating that the requested fees

6 The settlement agreement relied upon by Plaintiff does not contain the signatures of all the

parties. See Docket No. 45-1 at 20-24. However, agreements need not even be reduced to writing to

be enforceable contracts, unless required by law. Bill Walker & Assocs., Inc. v. Parrish, 770

S.W.2d 764, 771 (Tenn. Ct. App. 1989) (internal citation omitted). Given that verbal agreements

can be enforced, it follows that lack of signatures is generally not fatal to the binding force of an

agreement. See Moody Realty Co., Inc. v Huestis, 237 S.W.3d 666, 674-75 (Tenn. Ct. App. 2007)

(signatures are not always essential to establish a binding contract). Further, to the extent that a

writing is required, the Tennessee Supreme Court has held that an email that includes the name of a

party’s attorney may satisfy the statute of frauds requirement of a signed writing, if the parties,

through their attorneys, have evidenced an intent to finalize the transaction by electronic means

under the Uniform Electronic Transactions Act. Waddle v. Elrod, 367 S.W.3d 217, 226-29 (Tenn.

2012) (internal citation omitted). The specific transaction at issue in the Waddle case was a

settlement agreement. Here, to the extent the statute of fraud applies at all, the Court finds that the

emails between the parties’ respective counsel demonstrate their intent to finalize the settlement

electronically, and that the emails otherwise satisfy the statute of frauds requirement of a signed

writing evidencing their intended settlement. See Docket No. 45-1.

7 Although, admittedly, Defendants cite no supporting legal authority for the statement.

8 To the extent necessary, the Court finds that Plaintiff is the prevailing party in

enforcement of the settlement agreement, which allows for “reasonable attorney’s fees and costs”

to the prevailing party. (Docket No. 45-1 at 22.) Defendants make no argument to the contrary.

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are reasonable, which requires at least some documentation. Developers Diversified, 2019 WL

1851322, at *9. Further, the Court’s local rules expressly require such supporting documentation.

See Local Rule 54.01(c).

The Court has reviewed the second affidavit of Plaintiff’s counsel in support of the requested

attorneys’ fees. (Docket No. 49-1.) Based on the work itemized and the filings made, the Court finds

that, while the requested hourly rate is within the range of reasonableness, the total requested fees are

not reasonable. Given the years of experience of Plaintiff’s counsel, Jeffrey Wood, and the relative

simplicity of the issues presented, the Court finds that the amount of time spent on research and

preparation of the filings is excessive.

The Court therefore makes the following reductions:

(i) research time by .7 hours;

(ii) time for preparation of the initial motion to enforce settlement agreement by 2.3 hours;

(iii) time spent reviewing Defendants’ two-page opposition by .3 hours; and,

(iv) time spent drafting reply to Defendants’ response by .7 hours.

This results in a total reduction of 4 hours at $300 per hour, or $1,200. These are conservative

reductions consistent with the factors articulated by the Tennessee Supreme Court for

determination of reasonableness of requested fees. Developers Diversified, 2019 WL 1861322, at

*9 (internal citations omitted). The issues raised in the initial motion and responsive briefings are

neither novel nor complicated. Further, an attorney of Mr. Wood’s experience and hourly rate is

expected to be more efficient in preparation of filings. With these reductions, attorneys’ fees in the

amount of $1,590 are awardable under the prevailing party provision of the settlement agreement.

5

RECOMMENDATION

Based on the foregoing, it is respectfully RECOMMENDED that:

(1) Plaintiff's motion to enforce settlement agreement (Docket No. 45) be granted in

part and Plaintiff awarded attorneys’ fees as the prevailing party in the amount of $1,590; and

(2) Plaintiff's [amended] motion to strike response in opposition to the motion to

enforce settlement agreement (Docket No. 49) be denied as moot.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of

Court within fourteen (14) days of service of this Report and Recommendation and must state with

particularity the specific portions of this Report and Recommendation to which objection is made.

Fed. R. Civ. P. 72(b)(2); Local Rule 72.02(a). Failure to file specific written objections within the

specified time can be deemed to be a waiver of the right to appeal the District Court’s order.

Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Milton, 380 F.3d 909, 912 (6th Cir. 2004) (en

banc). Any responses to objections to this Report and Recommendation must be filed within 14

days of the filing of the objections. Fed. R. Civ. P. 72(b)(2); Local Rule 72.02(b).

Respectfully submitted,

XRBARA D. HOLMES

United States Magistrate Judge