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Millard v. BNSF Railway Co.

August 31, 2010

TERRANCE D. MILLARD, PLAINTIFF,
v.
BNSF RAILWAY COMPANY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

Plaintiff Terrance D. Millard ("Millard") brought this action against defendant BNSF Railway Company ("BNSF") alleging interference with his right to take reasonable leave to care for his ill child under the Family and Medical Leave Act ("FMLA.") (Compl.) [Dkt 1]. The parties have consented to the exercise of jurisdiction by a magistrate judge pursuant to 28 U.S.C. § 636(c). [Dkt 46, 50.] BNSF has filed a Motion to Enforce Settlement Agreement, alleging that the case has been settled for $80,000. (Def.'s Mot. ¶¶ 6, 7, 11.) [Dkt 96.] Millard disputes the enforceability of the agreement, alleging he never provided his attorney, Ryan Furniss ("Furniss"), with authority to settle for $80,000, and that Furniss failed to notify him prior to making the settlement demand. (Pl.'s Resp. ¶¶ 3,7.) [Dkt 100.] The parties submitted briefs on the issue and an evidentiary hearing was held on the motion.*fn1 For the reasons set out below, BNSF's motion is granted.

FACTUAL BACKGROUND

The facts adduced from the parties' written submissions and the evidentiary hearing are summarized as follows. In their first attempt to settle the matter with a neutral third party, the parties, including Millard, engaged in mediation on June 26, 2009 for several hours before former Judge Thomas Durkin at ADR Mediation Services. Millard's attorney, Furniss, testified that BNSF made a final offer of $40,000 at the mediation, while Millard, through his attorney, made a final demand of $80,000. The demands and offers were based upon gross amounts, inclusive of costs and attorneys' fees. The mediation failed to yield a settlement agreement.*fn2

After reassignment to this court, a jury trial was set for February 22, 2010. [Dkt 61.] Shortly before the final pretrial conference, the parties agreed to engage in a settlement conference on February 8, 2010 before Magistrate Judge Sidney Schenkier. (Def.'s Mot. ¶ 4; Pl.'s Resp. ¶ 1.) Present at the conference were Furniss, Millard, a representative of BNSF, and two attorneys for BNSF, Robert Prendergast ("Prendergast") and Daniel Mohan ("Mohan"). Furniss and Mohan both testified that the last demand Millard made on BNSF at the settlement conference was for $90,000.

Judge Schenkier recommended that the parties settle for $65,000, but Millard instantly rejected this figure. At that point, Furniss was troubled by the wisdom of his client's decision and composed a document stating that Furniss had encouraged Millard to accept $65,000 and that, if Millard did not accept, he was fully aware of the risks of losing at trial. Millard testified that he refused to sign Furniss' document, that he felt uncomfortable with "how the mediation was going," and that he "did not want to be there." By the end of the conference, the parties were unable to reach an agreement.

Nonetheless, Furniss testified that Millard communicated to him at the settlement conference that Millard would accept an agreement with BNSF for $80,000.*fn3 Furniss believed he was armed with authority to settle for $80,000. After Millard left the conference, Furniss spoke with BNSF attorneys Prendergast and Mohan at the elevators outside Judge Schenkier's chambers. Furniss explained to them that Millard was "stuck" on $80,000 and that BNSF should either pay that amount or expect to be on trial within a couple of weeks.

Mohan's testimony was consistent with Furniss.' He recalled that Millard's last demand at the settlement conference before Judge Schenkier was $90,000, and that BNSF's last offer was $60,000. He also recalled that Judge Schenkier had recommended $65,000. (It is not clear whether BNSF agreed to that recommendation.) Mohan recalled Millard leaving the settlement conference and Furniss saying to BNSF's attorneys, "He's stuck on $80,000."

BNSF did not immediately agree to the amount of $80,000, so both parties continued to prepare for trial. Two days after the conference, on the morning of February 10, 2010, BNSF's attorneys contacted Furniss and agreed to the settlement demand of $80,000. Because of the impending trial, the lawyers called the court to report their settlement, and a status hearing was set for later that afternoon. At that hearing, lawyers for both parties announced on the record that they had finally arrived at a settlement agreement, although Furniss unexpectedly raised one wrinkle: his client was now "balking" at the settlement he had agreed to. (Def.'s Mot., Ex. A, Tr. Feb. 10, 2010 at 4.)

In the two days between the settlement conference of February 8 and the call to the court on February 10, there was minimal communication between Millard and Furniss, consisting of only two e-mails, neither of which contained any discussion of the settlement.*fn4 The first was sent by Millard on February 9, 2010, stating "if u [sic] need anything from me please e-mail me, don't call." (Pl.'s Resp., Ex. A.) In the second e-mail later that day, February 9, Furniss simply notified Millard of a schedule change in a court hearing later that week. (Id., Ex. E.) Based on that limited contact, Furniss believed the authority he received on February 8, 2010 to settle for $80,000 had never been revoked.

After Furniss reached a settlement agreement with BNSF on the morning of February 10, he e-mailed Millard stating, "I attempted to call you earlier to congratulate you on getting your case done. The BNSF called this morning and agreed to pay your demand of $80,000 to settle your case." (Id., Ex. B.) Millard testified that, following the settlement conference, this was the first he had heard of any attempt to settle for $80,000. He also claims to have responded to Furniss' e-mail by asking "What is this for?" and stating, "I do not want to settle for it."

In a response e-mail, Furniss reminded Millard that Millard had told him and Judge Schenkier at the settlement conference that he would accept $80,000 to settle the case. (Id., Ex. D.) But Millard still refused the $80,000 settlement. Two weeks later, on February 26, 2010, Furniss forwarded Millard a settlement agreement drafted by BNSF. (Id., Ex. E.) Once again, Millard rejected the agreement. (Id., Ex. E.) On April 8, 2010, BNSF filed the present motion.

Millard testified that the only communication between he and Furniss about settlement was through e-mail, and that in those e-mails Millard stated he would "only settle for $150,000 or more." Millard said he was "uncomfortable" at the settlement conference, but, except for the testimony described in the preceding sentence, did not directly contradict or deny Furniss' testimony that he (Millard) had communicated authority at the settlement conference ...


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