The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the motion of Plaintiff,
Eunice Flood ("Flood") special administrator of the estate of
Maurice Flood, for a settlement conference. For the reasons set
forth below, Flood's motion is denied.
After several weeks of negotiation and a court-supervised
settlement conference, a settlement agreement was reached between
Flood and Defendant Owens-Illinois, Inc. ("Owens") on June 30,
2004. Both parties agreed to the details of the settlement
agreement, whereby Owens would generate a stream of biannual
payments to Flood over a five-year period. The payment schedule
was to take effect on September 1. Flood requested that Owens prepare the settlement paperwork,
including the settlement agreement and release. Owens, in turn,
prepared the paperwork and sent it to Flood's counsel, Robert
Queeney, via messenger. Owens alleges that the paperwork was sent
tandem with a request that Queeney inform Owens if any changes or
modifications were necessary. Owens claims that several weeks
passed with no response to this request from Queeney and that
numerous phone messages left by Owens requesting Queeney's
response also went ignored.
Owens asserts that on September 30, still having heard no
response from Queeney regarding the settlement agreement, Owens
sent Queeney another copy of the agreement and release. As the
date for the first payment had passed, without any response from
Queeney, Owens included a new payment schedule.
On October 11, Queeney sent a faxed copy of the original July
30 agreement that was purportedly signed by Flood but not
notarized and asked that the first payment be made within ten
days. On October 13, Owens indicated to Queeney apprehension
regarding the non-notarized signature page and informed him that,
while Owens was willing to cooperate with the payment schedule,
no payment could be made without a notarized settlement
agreement. Owens alleges that on October 20, Queeney indicated
via voice mail that he would have his client sign the agreement
the next day. According to Owens, Flood has yet to provide a notarized
settlement agreement and release.
Flood brings the present motion pursuant to Fed.R. Civ. P.
16(a), requesting that this court hold a second settlement
conference. Flood requests the settlement conference in the hopes
of adding "security" (without denoting what the security would
be) to Owens' promise to pay that is contained within the
settlement agreement and release. Flood expresses apprehension
regarding Owens' ability to pay and seeks the added security in
order to ensure full payment in the event that Owens files for
bankruptcy. Flood's only argument for this request is that
additional security is appropriate under the circumstances, in
that Owens is one of the few viable manufacturers in this case
that has not sought bankruptcy protection. This argument is
Flood claims that a settlement conference is appropriate under
the circumstances, yet given the facts presently before the
court, the circumstances indicate that a settlement conference is
not necessary. To express apprehension regarding a corporate
defendant's solvency merely because it has not filed for
bankruptcy protection, while other corporate defendants in the
case have, is counter-intuitive. Flood concedes that she had
previously accepted the terms of the settlement and that those
terms are accurately and completely set forth in the written agreement
tendered by Owens. Flood's request for additional security
ignores the fact that Owens has not made any indication
whatsoever that it could not or would not comply with the terms
of the agreement.
Based upon the record, it appears that Owens has been making
all reasonable attempts to comply with the settlement to which
the parties agreed. There is nothing unreasonable about Owens'
preferring to wait for the releasing party's notarized signature
before proceeding in accordance with the settlement agreement.
Further, Owens has been the catalyst behind finalizing the
settlement, drafting the agreement, and following up with
Queeney. Therefore, this court need not intervene, via a second
settlement conference, in the settlement between the parties.
Based on the foregoing analysis, Flood's motion is denied.
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