or receiving the help and recommendations of political or other
sponsors. Thus, we dismissed the case against the three
individual defendants who received promotions which were
allegedly based on patronage considerations. See Herron v. City
of Chicago, Mem. op. (N.D.Ill. October 3, 1985). The remaining
parties and the Court then had extended settlement discussions at
the conclusion of which a settlement was reached. The Court then
summarized, for the record, the terms of the settlement agreement
which had been reached by the remaining parties. Tr. at 429-34.
The terms of that settlement are as follows. The City agreed to
pay $70,000 to plaintiffs "in the near future." That amount
explicitly included attorneys' fees, and any costs or other
expenses. Other than the $70,000 payment, each party was to bear
its own costs and expenses, including attorneys' fees. The City
also agreed that the next three promotions from Water Rate Taker
to Supervisor of Water Rate Takers would be made from the current
eligibility list of qualified applicants which includes the six
plaintiffs and one other individual. The parties understood that
the Court was to enter an opinion making it clear that patronage
promotions are prohibited by the Shakman consent decree, that
individual employees do not violate the decree by seeking and
receiving help in attaining promotions, and that, accordingly,
defendants Miller, Esteban, and Porche were dismissed as
defendants. Plaintiffs agreed not to appeal the dismissal of
those three defendants.
All six plaintiffs were in court when the terms of the
settlement were summarized by the Court, and none objected when
their attorney, O'Laughlin, agreed to the settlement. Nor did
plaintiffs' co-counsel, MacArthur, object to the settlement. In
fact, she thanked the Court for its careful consideration of the
case. Now, some of plaintiffs' attorneys seek to repudiate the
settlement. Attorneys Joyce and MacArthur evidently seek an
additional $23,000 in fees. Because the City of Chicago refused
to acceed to the demand for more money, plaintiffs seek to amend
the complaint allegedly to conform the pleadings to the evidence
adduced at trial by adding section 1983 and 1988 claims so that
they can attempt to recover statutory attorney fees. The relief
in the case would not be altered by adding section 1983 and 1988
Amending the Complaint
Plaintiffs' attorneys argue that (1) during the course of the
trial the nature of the suit changed from one vindicating the
rights of the individual plaintiffs to one vindicating the rights
of all city employees; (2) the settlement agreement included fees
only for the work done on behalf of the individual plaintiffs,
and did not encompass fees for the work allegedly done on behalf
of all city employees; (3) evidence was adduced at trial proving
a violation of sections 1983 and 1988, and that those claims were
tried by implicit agreement of the parties so that plaintiffs
have a right to amend their complaint under Fed.R.Civ.P. 15(b) to
conform the pleadings to the evidence. Finally, attorneys for
plaintiffs argue that (4) they should be compensated as private
attorneys general due to the alleged benefit they bestowed on all
city employees by getting the Court to clarify that patronage
promotions are covered by the Shakman decree.
Plaintiffs' attorneys are wrong on all four counts. First, what
became clear during the course of trial was that at most two
defendants were promoted based on political considerations, and
that at best only two of the six plaintiffs could get any relief
if the case were decided by the Court. Furthermore, since the
promoted defendants did not violate the decree, they would not be
removed from the supervisor jobs and the plaintiffs would get no
immediate promotions. Finally, it appeared that the defendants
had a potentially strong legal defense to a finding of contempt,
i.e., ambiguity in the decree. For these reasons, plaintiffs'
expectations changed, but the nature of the suit did not.
Second, the settlement agreement encompassed the complete
the parties and no further fees were contemplated. It is
absolutely clear that no one in court at the time the settlement
agreement was entered contemplated that plaintiffs' attorneys
would seek further attorneys' fees under any guise. As the
Supreme Court recently reiterated in the context of Fed.R.Civ.P.
68 offers of judgment, "[i]f defendants are not allowed to make
lump sum offers that would, if accepted, represent their total
liability, they would understandably be reluctant to make
settlement offers." Marek v. Chesny, ___ U.S. ___, 105 S.Ct.
3012, 3016, 87 Ed.2d 1 (1985). It is clear that defendants can
cut off their liability for section 1988 attorney fees with a
successful Rule 68 offer. It ought to be equally clear that
defendants can cut off all liability, including attorneys' fees,
by settling a case.
This case would not have been settled if open-ended liability
for attorneys' fees under section 1988 had been contemplated. It
was not contemplated, and plaintiffs' attorneys' attempt to
extract more money from the City by amending the complaint to add
a claim that neither the parties, nor the Court, thought was
being tried during the trial is a transparent effort to get
around the valid and final settlement entered on behalf of their
Third, plaintiffs did not try section 1983 and 1988 claims at
all, much less by agreement, explicit or implicit. All of the
evidence introduced at trial went to the issues raised in the
complaint. Plaintiffs claim that Commissioner Corey's testimony
proves a violation of section 1983. Corey testified that calls
from the Mayor's Office were the motivating factor in his
decision to promote the two defendants, Miller and Esteban,
rather than any of the plaintiffs or other eligible candidates.
This evidence was essential to proving one element of a Shakman
decree violation. Plaintiffs had to show that political
considerations were a substantial or motivating factor in the
decision to promote. Whether Corey's testimony also goes to prove
a violation of section 1983 is irrelevant under Fed.R.Civ.P.
15(b). The situation we are presented with here is summed up very
succinctly in 3 Moore's Federal Practice ¶ 15.13 at 15-171:
The purpose of an amendment to conform to proof is to
bring the pleadings in line with the actual issues
upon which the case was tried; therefore, an
amendment after judgment is not permissible which
brings in some entirely extrinsic issue or changes
the theory on which the case was actually tried, even
though there is evidence in the record — introduced
as relevant to some other issue — which would support
the amendment. This principle is sound since it
cannot be fairly stated that there is any implied
consent to try an issue where the parties do not
squarely recognize it as an issue in the trial.
Plaintiffs point to no evidence which is relevant to their
section 1983 claim which is not relevant to another issue in the
case. In fact, when they did try to introduce evidence of the
number of black supervisors, which was only relevant to a charge
of racial discrimination, the evidence was excluded as not
relevant to any issue in the case.
More importantly, Rule 15(b) does not provide for amending a
complaint after settlement.*fn1 Plaintiffs cite cases which hold
that pleadings can be amended to conform to the evidence by
adding related causes of action after judgment on the merits of
the case has been entered. See, e.g., Trapnell v. Riggsby,
622 F.2d 290, 294 (7th Cir. 1980). They also cite cases which hold
that plaintiffs can be considered to be prevailing parties even
though the case was settled, and thus can be entitled to
statutory attorney's fees. See, e.g., Brown v. Culpepper,
559 F.2d 274, 277 (5th Cir. 1977). However, plaintiffs cite no cases
which hold that Rule 15(b) permits adding a claim for statutory
attorneys' fees after a settlement which explicitly included
attorneys' fees. Apparently, until now, no one has had the
requisite chutzpah to urge such contention. At least, no case
involving an attempt to collect additional fees after settlement
has been brought to the Court's attention.
Enforcing the Settlement Agreement
Voluntary resolution of litigation, through settlement, is
favored by the courts. Victory Beauty Supply Co. v. Lus-ter-oil
Beauty Products Co., 562 F. Supp. 786, 789 (N.D.Ill. 1983). A
settlement agreement is a contract, Reichelt v. Urban Investment
and Development Co., 611 F. Supp. 952 (N.D.Ill. 1985), which
cannot be unilaterally repudiated by any of the parties. Debose
v. Mueller, 552 F. Supp. 307, 308 (N.D.Ill. 1982); see also
Village of Kaktovik v. Watt, 689 F.2d 222, 230 (D.C.Cir. 1982).
The interpretation of a settlement agreement is controlled by
state law governing contracts generally. Air line Stewards &
Stewardesses Ass'n Local 550 v. American Airlines Inc.,
763 F.2d 875, 877 (7th Cir. 1985). The primary objective of construing a
contract is to give effect to the intent of the parties. Id.
citing Schek v. Chicago Transit Authority, 42 Ill.2d 362, 364,
247 N.E.2d 886, 888 (1969). Here, since the agreement is
unambiguous, we need look no further. See J.R. Watkins Co. v.
Salyers, 384 Ill. 369, 373, 51 N.E.2d 574, 576 (1943). The
settlement agreement was intended by all of the parties, and
understood by the Court (which participated in settlement
discussions) to be a final and complete resolution of the entire
case. Attorneys' fees were included in the amount the City of
Chicago agreed to pay to the plaintiffs. Plaintiffs cannot now
seek additional fees based on a theory which was neither tried,
nor contemplated during the settlement negotiations.
Courts retain the inherent power to enforce settlement
agreements reached in litigation before them, even when the
agreements are oral rather than written. See, e.g., Debose, 552
F. Supp. at 308, see also Schneider v. Dumbarton Developers, Inc.,
767 F.2d 1007, 1015 (D.C.Cir. 1985); Lyles v. Commercial Lovelace
Motor Freight, Inc., 684 F.2d 501, 504 (7th Cir. 1982); Aro Corp.
v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir.), cert.
denied, 429 U.S. 862 (1976); Meetings & Expositions, Inc. v.
Tandy Corp., 490 F.2d 714, 717 (2d Cir. 1974); Cummins Diesel
Michigan, Inc. v. The Falcon, 305 F.2d 721, 723 (7th Cir. 1962).
Though a written agreement was contemplated by the parties, it
was not executed due to plaintiffs' recalcitrance. The terms of
the settlement, however, are clear from the record, were agreed
to by all parties, and cannot now be changed unilaterally.
The section 1983 claims were not tried by agreement, implicitly
or explicitly. More importantly, the settlement was considered
final by all the parties to it. Additional fees were not
contemplated, and will not be allowed. Plaintiffs' attempt to
collect additional fees, or to create an appealable issue to open
up the settlement violates the terms of the settlement.
Defendants' motion to enforce the settlement is granted, and
plaintiffs' motion to amend the complaint is denied. An
appropriate order will enter.