The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Close only counts in horseshoes not settlement agreements. The
parties in this case have come close to a settlement agreement, but did
not reach one.
This case comes before the Court on Plaintiff IMI Norgren, Inc.'s
("Plaintiff or "IMI"), motion to enforce settlement agreement. Plaintiff
contends the parties reached a settlement agreement. Defendant D&D
Tooling & Manufacturing, Inc., d/b/a Electro Metal Products
("Defendant" or "D&D") acknowledges that the parties were close to
reaching a settlement agreement, but denies that an agreement was ever
reached on all the material terms. In particular Defendant contends that
the parties did not settle the case because 1) they did not reach
agreement on the type of security Defendant would provide to secure a
$270,000 promissory note, and 2) the settlement was contingent on the
parties executing a written settlement agreement, which they did not do.
The Court has carefully considered the parties' briefs and oral
arguments. The following constitute the Court's findings of fact and
conclusions of law. To the extent that certain findings of fact may be
deemed conclusions of law, they shall also be considered conclusions of
law. Similarly, to the extent matters contained in the conclusions of law
may be deemed findings of fact, they shall also be considered findings of
This case raises the following issues:
1) Whether securing the note was a material term
of the settlement agreement. Answer: Yes.
2) Whether the settlement was contingent upon
executing a written settlement agreement. Answer:
3) Whether a settlement agreement was ever
reached. Answer: No.
II. FINDINGS OF FACT
A. AUGUST 12, 2003 SETTLEMENT CONFERENCE
1. The proposed settlement framework arose out of a settlement
conference before this Court on August 12, 2003. Present at the
settlement conference were Plaintiffs counsel and Plaintiff, and
Defendant's counsel and Bill Diedrick (representing Defendant). Both
Plaintiff and Bill Diedrick had full authority to settle. The following
settlement framework was reached:
a) cash payout of $300,000 by D&D to IMI
($30,000 up front and $270,000 over nine years);
b) a consent judgment by D&D in the amount of
damages claimed in case, and
c) IMI agrees not to execute the consent judgment
against D&D (other than the $300,000
See Def. Resp., Exs. 1, 2. The following issues were
outstanding at the conclusion of the settlement conference: (1)
Plaintiffs right to review Defendant's insurance policies, and (2)
Defendant's right to consult bank documents to determine whether
Defendant could secure the $270,000 note without violating its loan
agreement with its bank. See id. Neither the insurance policies
nor the banking agreements were present at the settlement conference.
2. No settlement was reached at the August 12, 2003 settlement
conference. The parties agreed to continue their work on the outstanding
issues and to report their status to Judge St. Eve at a status conference
the next day.
B. COMMUNICATIONS AFTER THE SETTLEMENT CONFERENCE
3. By the evening of August 12, 2003, Plaintiff was able to review
Defendant's insurance policies. The review found the policies to be
"satisfactory" and the insurance issue was resolved. The major remaining
issue was security for the loan. See Def. Resp., Exs. 1, 2.
4. On the evening of August 12, 2003, counsel for the parties exchanged
email communications to discuss the settlement. Id. Plaintiffs
counsel sent an email that stated "IMI Norgren accepts D&D's offer"
of $300,000 to be paid $30,000 up front and the remaining $270,000 to be
paid $30,000 overnine years. Def. Resp., Ex 1. Plaintiffs counsel also