1

Throughout this litigation, the defendants have withheld documents from discovery, have refused

to answer interrogatories fully, and, generally, have violated the rules of discovery, the court’s scheduling

order, and the court’s order regarding certain discovery issues. Now, the defendants have delayed the

closing of the mediation settlement agreement by demanding terms that were not discussed at the mediation

and that exceed the clear language of the mediation settlement agreement. In sum, the defendants’ conduct

has been unreasonable and vexatious and has multiplied the proceedings in this case.

PLAINTIFF’S MOTION TO ENFORCE MEDIATION SETTLEMENT

AGREEMENT, MOTION FOR SANCTIONS, AND SUPPORTING BRIEF PAGE 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WALTER G. SMITH §

d/b/a IMPACT IMAGES, §

§

Plaintiff §

§

vs. §

§

DALLAS COWBOYS MERCHANDISING, § Civil Action No. 3:04-CV-575-M

LTD., DALLAS COWBOYS FOOTBALL §

CLUB, LTD., DALLAS COWBOYS PRO §

SHOPS, L.P., ESPORTS PARTNERS, INC., §

REEBOK INTERNATIONAL, LTD., §

EMMITT ZONE, INC., and ADVANTAGE §

MARKETING GROUP, INC., §

§

Defendants §

________________________________________________________________________

PLAINTIFF’S MOTION TO ENFORCE MEDIATION

SETTLEMENT AGREEMENT AND SUPPORTING BRIEF

Pursuant to the Court’s inherent power to enforce an agreement to settle a case

pending before it, Plaintiff, Walter G. Smith, moves the Court to enter judgment against

defendants in conformity with that certain Settlement Agreement dated March 3, 2005

(the “Settlement Agreement”).1

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PLAINTIFF’S MOTION TO ENFORCE MEDIATION SETTLEMENT

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I. INTRODUCTION

On March 3, 2005, the parties mediated this case. At the conclusion of the

mediation, the parties signed a settlement agreement.

By this motion, Plaintiff asks the court to enforce that agreement.

II. SUMMARY OF THE CASE

This is a Copyright infringement case.

During a Dallas Cowboys’ football game, Plaintiff photographed former Dallas

Cowboy football star, Emmitt Smith, kneeling with a football on the star located in the

center of the playing field at Texas Stadium (the “Image”).

Approximately one year later, Plaintiff learned the defendants, without his

permission, were offering for sale various items that prominently displayed the Image.

Plaintiff attempted to negotiate a reasonable license agreement with the

defendants, to no avail. Thus, Plaintiff filed this lawsuit to collect damages in connection

with the Defendants’ infringement of his Copyrighted Image.

III. FACTS PERTAINING TO SETTLEMENT

On March 3, 2005, the parties compromised and settled their claims against each

other, after a full day of mediation. That same day, they executed the Settlement

Agreement, a true and correct copy of which is attached to this motion as Exhibit “A,”

and incorporated hereby by reference for all purposes. 

The terms of the Settlement Agreement are clear and unambiguous. The

Defendants were required to pay the Plaintiff $275,000 on or prior to March 15, 2005.

See Exhibit “A,” ¶¶1-2. The parties further agreed to prepare and to submit an agreed

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2

Ironically, at the time of this letter, Plaintiff’s counsel had not tendered the referenced document

to Plaintiff’s counsel for review. Indeed, she admitted “counsel for the individual Defendants are reviewing

the Mutual General Release... .”

PLAINTIFF’S MOTION TO ENFORCE MEDIATION SETTLEMENT

AGREEMENT, MOTION FOR SANCTIONS, AND SUPPORTING BRIEF PAGE 3

order of dismissal and to execute mutual general releases of all claims existing as of

March 3, 2005. See Exhibit “A,” ¶¶3-4.

On March 8, 2005, Plaintiff’s counsel prepared an agreed order of dismissal and

offered to prepare a mutual general release form, as contemplated by the Settlement

Agreement. See Email Communications dated March 8, 2005, true and correct copies of

which are attached collectively to this motion as Exhibit “B.” Defendants’ counsel

declined this offer and stated that she would “prepare the Compromise Settlement

Agreement and Release of all Claims for filing in this matter.” Id. In response,

Plaintiff’s counsel stated “the settlement terms were adequately covered by the

agreement that was signed at the mediation... .” Id.

On March 15, 2005, the day on which the Settlement Agreement required

defendants to pay Plaintiff $275,000, defendants’ counsel still had not sent Plaintiff’s

counsel any proposed documentation. Thus, Plaintiff’s counsel again offered to prepare a

mutual general release form and reminded the defendants’ counsel that the Settlement

Agreement required the defendants to make payment by the end of that day. See Email

Communications dated March 15, 2005, true and correct copies of which are attached

collectively to this motion as Exhibit “C.”

The defendants’ counsel tendered a check to Plaintiff’s counsel at the end of

business on March 15, 2005; however, she instructed Plaintiff’s counsel to hold the

money in trust “until such time as the Mutual General Settlement Release has been fully

executed and returned to my attention.”2 See Correspondence dated March 15, 2005

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PLAINTIFF’S MOTION TO ENFORCE MEDIATION SETTLEMENT

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from Julie Celum to James E. Davis and Brad C. Mall, a true and correct copy of which

is attached to this motion as Exhibit “D.”

On March 16, 2005, the defendants’ counsel finally tendered to Plaintiff’s counsel

a 5-page document (excluding execution pages and exhibits) entitled “Settlement

Agreement and Mutual General Release.” A true and correct copy of this document is

attached to this motion as Exhibit “E.” Although the document contained mutual general

releases, as contemplated by the Settlement Agreement, it also contained numerous

additional warranties, covenants, and conditions that were not discussed at the mediation

and to which the parties never agreed, including a “confidentiality and nondisparagement” provision. See Exhibit “E,” ¶ 5.12.

On March 17, 2005, Plaintiff’s counsel notified the defendants’ counsel that the

Plaintiff objected to the defendants’ attempt to include a “confidentiality and nondisparagement” provision in the mutual release document. Specifically, Plaintiff’s

counsel stated:

 [W]e object to any confidentiality provisions. There was nothing said

about this at mediation. The mediation settlement agreement says nothing

about it. We confirmed with John Cone [the mediator] at the mediation

that the settlement agreement was silent as to confidentiality.

See Email Communication dated March 17, 2005, a true and correct copy of which is

attached to this motion as Exhibit “F.”

On March 18, 2005, Plaintiff’s counsel reiterated Plaintiff’s objection to the

proposed confidentiality provision:

I have not heard from you regarding the mutual release. I understand that

your client wants a confidentiality provision but our client did not agree to

that at mediation.

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PLAINTIFF’S MOTION TO ENFORCE MEDIATION SETTLEMENT

AGREEMENT, MOTION FOR SANCTIONS, AND SUPPORTING BRIEF PAGE 5

I believe the settlement agreement from the mediation is clear and

unambiguous but if it would help, we can discuss the matter with John

Cone [the mediator].

See Email Communications dated March 18-23, 2005, a true and correct copy of which is

attached to this motion as Exhibit “G.”

On March 21, 2005, the defendants’ counsel replied to the Emails of March 17

and 18. She stated that she had been sick and out of the office. She also indicated she

needed to discuss the Plaintiff’s objection to the proposed “confidentiality and nondisparagement” clause with her co-counsel (whom she said was in trial). See Id.

On March 23, 2005, the defendants’ counsel requested permission to insert a

provision in the mutual release document to prohibit the Plaintiff from entering Texas

Stadium as a photographer for any Dallas Cowboys home football games. See Email

communications dated March 18-23, 2005, a true and correct copy of which is attached to

this motion as Exhibit “H.” Defendants’ counsel did not address the Plaintiff’s objection

to the proposed “confidentiality and non-disparagement” clause. Id.

In response, Plaintiff’s counsel pointed out that it was not necessary for the

defendants to insert a provision in the settlement documents to ban Plaintiff from Texas

Stadium because the Cowboys are free to deny anyone admittance to Texas Stadium,

including the Plaintiff. Id. Nonetheless, Plaintiff’s counsel agreed that such a clause

could be added to the documentation (despite the fact such a provision was not part of the

settlement between the parties), if that would facilitate closure of the settlement. Id.

On March 28, 2005, the defendants’ counsel tendered a revised Settlement

Agreement and Mutual General Release, a true and correct copy of which is attached to

this motion as Exhibit “I.” The revised document did not contain the contested

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PLAINTIFF’S MOTION TO ENFORCE MEDIATION SETTLEMENT

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“confidentiality and non-disparagement” provision; however, the new document, like the

original, was marked “Confidential” in its footer and, further, it contained a recital that

“the Parties wish for this Mutual General Release to be confidential... .” See Exhibit “I,”

p. 1. In addition, as the parties had discussed, the revised document contained a

provision to bar the Plaintiff from Texas Stadium; however, the provision also purported

to prohibit Plaintiff from attending Dallas Desperados arena football games at the

American Airlines Center, which was never discussed at mediation, was not part of the

mediation Settlement Agreement, and was not part of the Plaintiff’s agreement by Email

on March 23rd. See Exhibits “A, ” and “H.”

Plaintiff’s counsel immediately objected to the defendants’ revised draft of the socalled “Settlement Agreement and Mutual General Release.” By Email, Plaintiff’s

counsel stated:

We have three issues with your most recent draft:

1. The recital language states the parties desire to keep the Mutual

Release "confidential." This may be a simple oversight but it needs to be

removed.

2. The footer of the Mutual Release also contains the word

"Confidential," which, again, may be a simple oversight but it should be

removed. The bottom line is that there is nothing "confidential" about the

document or its contents. There is nothing in the document that is a

Cowboys trade secret, etc. It is merely a mutual release that contains

largely boiler plate terms. . ..

3. As to paragraph 5.6, please delete the reference to the Dallas

Desperados, as there was never any discussion of or agreement to any

restriction on Walt Smith's ability to attend such games for any purpose.

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Certainly, Plaintiff could have objected to all the extraneous warranties, covenants, and

conditions that the defendant purported to annex to the mutual general release; however, at the time,

Plaintiff was willing to accept these terms so long as the objectionable confidentiality provision were

deleted.

4

Plaintiff cannot imagine that the defendants will dispute any of the factual representations

contained in this motion and therefore, Plaintiff does not believe an evidentiary hearing will be necessary.

PLAINTIFF’S MOTION TO ENFORCE MEDIATION SETTLEMENT

AGREEMENT, MOTION FOR SANCTIONS, AND SUPPORTING BRIEF PAGE 7

See Email Communication dated March 28, 2005, a true and correct copy of which is

attached to this motion as Exhibit “J.”3

Later the same day, Plaintiff’s counsel advised defendants’ counsel that the

Plaintiff would not tolerate any further delay and that if the matter was not closed by the

end of the day, then Plaintiff would file a motion to enforce the mediation settlement. In

response, the defendants’ counsel said “[f]ile your motion and we can have the Judge sort

out our issues.” See Email Communication dated March 28, 2005, a true and correct

copy of which is attached to this motion as Exhibit “L.” 

IV. ARGUMENTS AND AUTHORITIES

“Federal courts have held under a great variety of circumstances that a settlement

agreement once entered into cannot be repudiated by either party and will be summarily

enforced.” Cia Anon Venezolana de Navegacion v. Harris, 374 F.2d 33, 35- 36 (5th

Cir.1967). Thus, a District Court has the power to enforce summarily a settlement

agreement reached in a case pending before it. Von Drake v. Core, Inc., et al., 2003 WL

22234922 *9 (N.D. Tex. July 17, 2003).

If enforcement of the settlement agreement is opposed based on a challenge to the

agreement itself, the parties must be allowed an evidentiary hearing on the disputed

issues fo the validity and the scope of the agreement.4 Id. See also Mid-South Towing

Co. V. Har-Win, Inc., 733 F.2d 386, 390 (5th Cir. 1984). “The movant bears the burden

Case 3:04-cv-00575-M Document 50 Filed 03/31/05 Page 7 of 10 PageID 442
5

 Plaintiff certainly can understand why the defendants want a confidentiality provision given the

way they ran rough-shod over the Plaintiff’s rights through their willful infringement of his Copyrighted

Image.

PLAINTIFF’S MOTION TO ENFORCE MEDIATION SETTLEMENT

AGREEMENT, MOTION FOR SANCTIONS, AND SUPPORTING BRIEF PAGE 8

of proof and the court is empowered to make factual findings based on the evidence

presented during the evidentiary hearing.” Von Drake, 2003 WL 22234922, at *9.

Here, the issue before the court is a narrow one–whether the defendants may add

terms that the parties never discussed and to which they never agreed at mediation to the

“mutual general releases” that are contemplated by the Settlement Agreement.

Clearly, they may not.

The Settlement Agreement memorializes a full and final compromise of claims

between the Plaintiff and the defendants. Elegant in its simplicity, it required merely

three things of the parties: (1) a payment of $275,000 by defendants to Plaintiff; (2) an

agreed order of dismissal; and (3) mutual general releases of any and all claims existing

as of March 3, 2005.

There is no dispute between the parties regarding any of these three issues. First,

the defendants tendered $275,000 to the Plaintiff’s counsel on March 15. See Exhibit

“D.” Second, the parties have agreed to the language of an agreed order of dismissal.

Third, and finally, the parties have agreed to the language of mutual general releases.

See Exhibits “E,” at ¶¶1.1-1.2, and “I,” at ¶¶1.1-1.2 

The dispute between the parties regarding the scope of the Settlement Agreement

arises out of the defendants’ desire to add “Warranties and Representations,”

“Indemnification,” “Assignment of Claims,” and “General covenants,” including the

“confidentiality and non-disparagement” provision.5 See Exhibits “E,” and “I.”

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PLAINTIFF’S MOTION TO ENFORCE MEDIATION SETTLEMENT

AGREEMENT, MOTION FOR SANCTIONS, AND SUPPORTING BRIEF PAGE 9

None of these additional terms were discussed at the mediation, nor were they

part of the Settlement Agreement. Moreover, there is no provision in the Settlement

Agreement that requires the parties to execute more formal settlement documents. To the

contrary, the Settlement Agreement specifically identified two additional documents for

the party to create–(1) an agreed order of dismissal; and (2) mutual general releases.

Clearly, had the parties contemplated the preparation of more formal and expansive

settlement documents, the Settlement Agreement could have and would have so stated.

In sum, the Settlement Agreement is clear on its face and constitutes a final and

binding contract. The defendants may not muddy the waters or continue to delay the

closing of the deal simply because they now want provisions that they did not request at

mediation and to which the Plaintiff never agreed. Thus, the Court should enforce the

Settlement Agreement summarily.

V. CONCLUSION

Based on the reasoning and authorities set forth above, Plaintiff respectfully

requests the Court to enter judgment on the Settlement Agreement.

Respectfully submitted,

_/S/ James E. Davis____________

JAMES E. DAVIS

State Bar No. 05504200

BRAD C. MALL

State Bar No. 24007593

DAVIS MUNCK, P.C.

900 Three Galleria Tower

13155 Noel Road

Dallas, Texas 75240

(972) 628-3600 (Telephone)

(972) 628-3616 (Fax)

ATTORNEYS FOR PLAINTIFF

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PLAINTIFF’S MOTION TO ENFORCE MEDIATION SETTLEMENT

AGREEMENT, MOTION FOR SANCTIONS, AND SUPPORTING BRIEF PAGE 10

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing instrument was served upon

the following counsel of record pursuant to the Federal Rules of Civil Procedure on this

the 31st day of March, 2005. 

Levi G. McCathern, II, Esq. 

McCathern | Mooty, L.L.P.

3710 Rawlins, Suite 1600

Dallas, Texas 75219

_/S/ James E. Davis__________

James E. Davis

CERTIFICATE OF CONFERENCE

I hereby certify that on March 28, 2005, I conferred with defendants’ counsel,

Julie L. Celum, regarding the substance of the foregoing motion. No agreement could be

reached. See Exhibit “K.” Accordingly, pursuant to Local Rule 7.1(b)(3), it is presumed

that Defendants are opposed to this Motion.. 

_/S/ James E. Davis____________ 

James E. Davis

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