1095751

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

GREGORY L. SCOTT )

)

Plaintiff, )

)

vs. ) CASE NO.: 2:06-cv-654-MEF

)

NORMENT SECURITY GROUP ) JUDGE MARK E. FULLER

)

Defendant. )

BRIEF IN SUPPORT OF DEFENDANT’S MOTION FOR ENFORCEMENT OF 

SETTLEMENT OR, ALTERNATIVELY, TO DISMISS

COMES NOW the Defendant, Norment Security Group, Inc. and submits this brief in 

support of its motion for enforcement of the settlement agreement between Plaintiff and 

Defendant, in support of its motion to dismiss the settled case while retaining jurisdiction to 

enforce the settlement and, in addition, in support of the Court’s right to dismiss the action for 

want of prosecution. The Defendant shows unto the Court the following:

INTRODUCTION

This case involved Plaintiff Gregory Scott’s claims of racial discrimination and

retaliation against the Defendant. The parties experienced difficulty in finding an agreeable date

for the Plaintiff’s deposition, which was finally set for June 19, 2007. (Defendant’s Notice to the 

Court and Motion for Enforcement of Settlement, hereinafter “Defendant’s Notice,” ¶ 1; Doc. 

22). Plaintiff’s attorney, Braxton Schell, Jr., Esq., and counsel for the Defendant engaged in 

settlement discussions. Plaintiff had initially offered to settle the case for $15,000. (Id. at Para. 

2; Doc. 22; See also, Plaintiff’s Response to Defendant’s Notice to the Court, hereinafter 

“Plaintiff’s Response”, Doc. 23, in which Plaintiff’s counsel confirms the accuracy of

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Defendant’s Notice). The Defendant counter-offered $10,000, conditioned on a complete and 

confidential settlement and release. (Id.). Plaintiff’s counsel acknowledges that after advising

the Plaintiff of Defendant’s counter-offer, the Plaintiff told him “to present a demand for 

$12,500” in settlement of the case. (Schell Affidavit ¶ 2, Doc. 26; Plaintiff’s Response, Doc. 

23). Plaintiff’s counsel proceeded to make this demand to Defendant’s counsel based on this 

specific authorization from his client, the Plaintiff. (Id.). Defendant’s counsel conveyed his 

client’s acceptance of Plaintiff’s counter-counter-offer to Plaintiff’s counsel along with the 

reminder that confidentiality would be enforced by liquidated damages of half the settlement 

amount. (Defendant’s Notice at ¶ 2, Doc. 22). 

The Defendant received an email communication from Plaintiff’s counsel just after noon 

on June 18, 2007 that stated as follows: “Bruce, This will confirm our settlement for $12,500, 

with all the usual conditions.” (Defendant’s Notice at ¶ 2, Doc. 22). The email requested that 

Defendant’s counsel draft and forward a settlement and release to Plaintiff’s counsel. (Id.). 

Defendant’s counsel replied to the email from Plaintiff’s counsel the same day at 1:30 pm, 

confirming the settlement and the agreement for liquidated damages for any breach of

confidentiality. (Id.). Based on the settlement, the plaintiff’s deposition and others were

mutually cancelled. (Id.). 

Plaintiff’s counsel has filed with this Court a Response to Defendant’s Motion for 

Enforcement. Within this response, Plaintiff’s counsel acknowledged that Defendant’s Motion 

for Enforcement of the Settlement correctly set forth the facts with respect to this situation. (See 

Plaintiff’s Response, Doc. 23, ¶ 2). Plaintiff’s counsel attests that the lawsuit was settled for 

$12,500 and that he presented Plaintiff with a confirmation letter detailing the settlement and 

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expenses involved in his representation. (Schell Affidavit ¶ 3, Doc. 26; Letter from Plaintiff’s 

Counsel to Plaintiff). 

ARGUMENT

I. The Case Has Been Settled Because the Plaintiff’s Attorney Had Express 

Authority to Settle the Case for the Amount in Which He Settled It.

 The Plaintiff authorized his attorney to present his demand of $12,500 during settlement 

negotiations with the Defendant. (Plaintiff’s Response, Doc. 23; Schell Affidavit ¶ 2, Doc. 26). 

The Defendant accepted this offer from Plaintiff’s attorney and drafted a Settlement and Release 

Agreement detailing the agreement. (Defendant’s Notice, ¶ 3, Attachment 1, Doc. 22. The 

Plaintiff and Defendant entered into a contract in which the Plaintiff agreed to settle his claims 

against Defendant in consideration of $12,500. “Settlement agreements are governed by basic 

principles of contract law.” Thompson v. D.C. America, Inc., 951 F. Supp. 192, 195 (M.D. Ala. 

1996); (citing Sheng v. Starkey Laboratories, Inc., 53 F.3d 192, 194 (8th Cir. 1995)). 

An integral factor regarding the formation of settlement agreements is whether the 

client’s attorney had the authority to settle his claims and enter into a binding contract on the 

client’s behalf. The law in Alabama regarding settlement authority is that the “authority to settle 

is not incidental, but it is essential that an attorney have express, special authority from his client 

to do so.” Daniel v. Scott, 455 So. 2d 30, 32 (Ala. Civ. App. 1984). Plaintiff’s counsel attests 

that he had specific authority to settle the case with the Defendant. (Schell Affidavit ¶ 2, Doc. 

26). Plaintiff’s counsel attests that the Plaintiff specifically requested that counsel demand 

$12,500 as settlement for his claims. (Plaintiff’s Response, ¶ 1, Doc. 23; Schell Affidavit ¶ 2, 

Doc. 26). Acting upon this express authority, Plaintiff’s counsel made a settlement offer of 

$12,500 and Defendant’s counsel accepted the offer. (Schell Affidavit ¶ 2, Doc. 26). It is 

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important to note that the Plaintiff was informed as to the progress of the negotiations between 

his counsel and Defendant’s counsel. (Plaintiff’s Response, ¶ 1, Doc. 23; Schell Affidavit ¶ 2, 

Doc. 26). This is significant because the Alabama Supreme Court has stated that such evidence 

of the plaintiff’s participation and involvement in the process of negotiation can be determinative 

of an attorney’s authority to settle on a plaintiff’s behalf. Hawk v. Biggio, 372 So. 2d 303 (Ala. 

1979). In Hawk, the Alabama Supreme Court upheld the trial court’s ruling that the attorney did 

have authority to enter into a settlement agreement on the plaintiff’s behalf because “there was 

evidence that Hawk had been participating in the negotiations and was kept informed as to the 

progress of the negotiations.” Id. at 304. 

 Plaintiff Scott’s attorney had authority to enter into an agreement on the Plaintiff’s 

behalf, which binds the Plaintiff to the terms of the Settlement Agreement. By settling the 

Plaintiff’s lawsuit against Defendant, Plaintiff’s counsel has not prejudiced his client’s rights in 

any manner whatsoever. Based on his experience as an attorney, Plaintiff’s counsel considered 

the settlement fair considering the details of the Plaintiff’s case. (Schell Affidavit ¶ 2, Doc. 26). 

It is essential for the efficient handling of lawsuits that attorneys, acting as agents, be able to 

settle cases for their clients when they are given the authority to do so. The evidence in this case 

strongly supports the assertions that this case was settled based upon the express, specific 

authority given by Plaintiff to his attorney. 

Based on this evidence and the contract law governing settlement agreements, Defendant 

requests that the Court rule that the parties entered into a valid settlement agreement for the 

claims involved in this lawsuit. The Defendant also requests that the Court dismiss the 

Plaintiff’s claims in this case. 

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II. The Court Has Authority to Dismiss an Action that Has Been Settled and 

Has the Authority to Dismiss an Action for Want of Prosecution

A district court can dismiss an action that has been settled because no controversy exists 

after the settlement of the claims of the lawsuit. The Court can also dismiss an action for want of 

prosecution. The District Court for the Southern District of Alabama emphasized that “[d]istrict 

courts possess inherent power to sanction errant litigants before them.” Hudson v. Cardwell 

Corp., 2006 WL 2135791, *1 (S.D. Ala. 2006). The Hudson Court noted that “these incidental, 

inherent powers unquestionably include the power to dismiss an action for failure to prosecute.” 

Id. (citing See In re Mroz, 65 F.3d 1567, 1575 n. 9 (11th Cir. 1995))(recognizing that power 

exists); see also Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)(“The court’s power to 

dismiss is an inherent aspect of its authority to enforce its orders and insure prompt disposition of 

lawsuits.”). Also, “Rule 41(b), Fed. R. Civ. P., expressly ‘authorizes a district court to dismiss a 

complaint for failure to prosecute or failure to comply with a court order or federal rules.’” 

Hudson, 2006 WL 2135791 at *1. (citing Gratton v. Great American Communications, 178 F.3d 

1373, 1374 (11th Cir. 1999)). 

By frustrating discovery in allowing his deposition to be cancelled because of a

settlement, and then reneging on that settlement, Plaintiff should be held to have failed to 

properly prosecute his case. Additionally, dismissal is an available sanction that the Court can 

impose when a plaintiff fails to cooperate in discovery. In Antalan v. Degussa-Huls Corp., 202 

F. Supp. 2d 1331 (S.D. Ala. 2002), the Court dismissed the plaintiff’s case for failure to 

cooperate with discovery and for failure to obey the orders of the Court. The Antalan Court held 

that a “Court should dismiss a case only upon a ‘clear record of delay or willful contempt and a 

finding that lesser sanctions would not suffice.’” Id. at 1337; (Quoting Mingo v. Sugar Cane

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Growers Co-op of Fla., 864 F.2d 101, 102 (11th Cir. 1989). If the Plaintiff, Gregory Scott, fails 

to respond as required by the Court’s Order of July 5, 2007, dismissal of his action is clearly an 

option before the Court. 

III. The Court Possesses the Authority to Enforce the Settlement Agreement and 

Retain Jurisdiction Over the Agreement After Dismissal

The Court has the authority to enforce the settlement agreement between Plaintiff, 

Gregory Scott and Defendant, Norment Security Group, Inc. The United States Supreme Court 

addressed the issue of enforcing a settlement agreement after the dismissal of the case in 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994). In Kokkonen, a case originally 

before the Eastern District of California, the parties to the lawsuit orally agreed to settle the suit 

during the trial, and the substance of this agreement was preserved on the record before the 

district judge. Id. at 376. However, the district judge did not reserve jurisdiction in the district 

court to enforce the settlement agreement. Id. at 377. After the settlement, there was a 

disagreement between the parties regarding the performance of a condition of the settlement 

agreement and one of parties moved to have the district court enforce the agreement. Id. The

district court entered an enforcement order, which the petitioner appealed. Id. The district 

court’s enforcement order was affirmed by the United States Court of Appeals for the Ninth 

Circuit Court on the basis that the district court had inherent supervisory power regarding 

settlement enforcement motions. Id. On appeal, the Supreme Court disagreed with the

respondents and ruled that federal district courts do not have inherent power to enforce

settlement agreements under the doctrine of ancillary jurisdiction. Id. at 380. However, the 

Supreme Court explicitly described how it was possible for a district court to retain jurisdiction 

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over the enforcement of a settlement agreement entered into before the court. The Kokkonen

Court noted that 

[t]he situation would be quite different if the parties' obligation to comply 

with the terms of the settlement agreement had been made part of the 

order of dismissal-either by separate provision (such as a provision 

“retaining jurisdiction” over the settlement agreement) or by incorporating 

the terms of the settlement agreement in the order. In that event, a breach 

of the agreement would be a violation of the order, and ancillary

jurisdiction to enforce the agreement would therefore exist.

Id. at 381. Expounding upon this idea, the Supreme Court wrote that “[i]f the parties 

wish to provide for the court's enforcement of a dismissal-producing settlement

agreement, they can seek to do so.” Id. From the plain language of this case, the 

Supreme Court gave explicit instructions to federal district courts regarding how to retain 

jurisdiction over a settlement agreement entered into before these courts. 

The United States Court of Appeals for the Eleventh Circuit adopted the holding in 

Kokkonen regarding the retention of jurisdiction over a settlement agreement in a case that has 

been dismissed. In Am. Disability Ass’n. v. Chmielarz, 289 F.3d 1315, 1320 (11th Cir. 2002), the 

court of appeals analyzed the Kokkonen decision and held that “it is clear that, even absent the 

entry of a formal consent decree, if the district court either incorporates the terms of a settlement 

into its final order of dismissal or expressly retains jurisdiction to enforce a settlement, it may 

thereafter enforce the terms of the parties' agreement.” The Chmielarz case involved a pre-trial 

settlement that was “approved, adopted, and ratified” by the district court in its final order of 

dismissal, and “over which the district court expressly retained jurisdiction to enforce its terms.” 

Id. at 1317. In support of its decision, the Chmielarz Court wrote that “[a] formal consent decree 

is unnecessary in these circumstances because the explicit retention of jurisdiction or the court's 

order specifically approving the terms of the settlement are, for these purposes, the functional 

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equivalent of the entry of a consent decree.” Id. at 1320. See Smyth v. Rivero, 282 F.3d 268, 281

("Where a settlement agreement is embodied in a court order such that the obligation to comply 

with its terms is court-ordered, the court's approval and the attendant judicial over-sight (in the 

form of continuing jurisdiction to enforce the agreement) may be equally apparent.")); Nat'l

Coalition for Students With Disabilities v. Bush, 173 F. Supp. 2d 1272, 1279 ("[T]he parties' 

voluntary Settlement Agreement and resulting order and judgment requiring compliance with 

that Agreement have the same effect, for purposes of establishing prevailing party status, as 

would a litigated order imposing the same terms."). 

In addition, the United States District Court for the Middle District of Alabama in

Thompson v. D.C. America, Inc. has applied the Supreme Court’s holding in Kokkonen. In

Thompson, the Court addressed the issue of the enforcement of a settlement agreement and

focused its analysis on whether the plaintiff’s former attorney had authority to settle the case, or 

in the alternative, “whether the plaintiff’s retention of the settlement proceeds” constituted 

ratification of the settlement agreement. Thompson, 951 F. Supp. at 195. Within its analysis, the 

Court cited Kokkonen’s holding that a federal district court could enforce a settlement agreement 

if it retained jurisdiction to enforce the agreement in its dismissal order. Id. at 195.

The law clearly gives a federal district court the authority to retain jurisdiction over a 

settlement agreement after dismissal of the case in order to enforce the terms of the agreement. 

Defendant, Norment Security Group, Inc., requests this Court to approve the settlement 

agreement (Attachment 1 to Defendant’s Notice; Doc. 22) between Plaintiff and Defendant [with 

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one inconsequential change]

1

, dismiss the Plaintiff’s claims, and retain jurisdiction over the 

settlement agreement. Defendant suggests this approach because it avoids the necessity of

incorporating a lengthy agreement in the Court’s dismissal and because the Court can and should

condition the Defendant’s payment of settlement sums to the Plaintiff and in satisfaction of the 

Plaintiff’s attorneys’ lien upon receipt by Defendant of the properly-executed settlement

agreement. The Court would have jurisdiction to enforce the agreement in the event of a breach 

of the terms of the agreement by either party. 

WHEREFORE, PREMISES CONSIDERED, Defendant moves this Honorable Court to 

dismiss Plaintiff’s complaint, enforce the settlement agreement between the parties, and to 

expressly retain jurisdiction over the settlement agreement, or in the alternative, incorporate the 

terms of the Dismissal into its Final Order. 

Respectfully submitted this the 13th day of July, 2007.

s/Bruce J. Downey III______________________

BRUCE J. DOWNEY III

ATTORNEY FOR DEFENDANT

OF COUNSEL:

CAPELL & HOWARD, P.C.

150 South Perry Street

Post Office Box 2069

Montgomery, Alabama 36102-2069

Telephone: (334) 241-8000

Telecopier: (334) 323-8888

 

1

 The one change that should be made to the Settlement Agreement is the section [¶ 2, Waiver and Release of 

Claims] in which the Plaintiff represents that he is “under forty.” Apparently, he has recently turned forty, so the 

averment should be changed to “under forty at the time of the alleged discrimination.” This change is insignificant 

because it is the age “at the time of the discrimination” that controls claims under the ADEA, 29 U.S.C.A. § 621, 

and because Plaintiff’s claims are of race discrimination – not age discrimination. This is the type of minor change 

that would have been easily resolved between counsel if Plaintiff had not reneged. Its resolution does not create an 

advantage for either party. 

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CERTIFICATE OF SERVICE

I hereby certify that on this the 13th day of July, 2007 I mailed a copy of the foregoing, 

U.S. Mail postage prepaid, to the Plaintiff’s prior counsel as well as having electronically filed 

the foregoing with the Clerk of the Court using the CM/ECF system, which may give notification 

of such filing to the following:

Braxton Sche ll, Jr., Esq.

Braxton Schell, Jr., P.C.

1330 – 21st Way S.

Ste. 210

Birmingham, AL 35205

I further certify that I mailed a copy of the foregoing, U.S. Mail via certified mail, return

receipt requested, postage prepaid, to the Plaintiff at the following address:

Gregory Scott

2667 Davenport Road

Greenville, AL 36037

s/Bruce J. Downey, III____________________

Of Counsel

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