20

- 756

- cv McCalla v. Liberty Life Assurance Company, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



### SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 1

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY 2

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 3

CITING A SUMMARY ORD ER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 4

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 5

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON 6

ANY PARTY NOT REPRESENTED BY COUNSEL. 7

At a stated term of the United States Court of Appeals for the Second Circuit, held at 8 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 9

on the 1 5 t h d a y of M a r c h

, two thousand twenty

- one

. 10

11

PRESENT: 12

R OBERT D. S ACK

, 13

S USAN L. C ARNEY

, 14 Circuit Judges

, 15

R ACHEL P. K OVNER

, 16 District J udge. * 17

18

_________________________________________ 19

20

H ENSLEY K. M C C ALLA

, 21

22 Plaintiff

- C o u n t e r

- D e f

e n d a n t

- Appellant

, 23

24

v. No. 20

- 756

- cv 25

26

L IBERTY L IFE A SSURANCE C OMPANY O F B O S T O N

, 27

28

D e f

e n d a n t

- C o u n t e r

- C l a i

m a n t

- A

p

p e l l e e

, 29

30

L INCOLN F INANCIAL G ROUP

, 31

32 Defendant

- Appellee

. 33

_________________________________________ 34

35

* Judge Rachel P. Kovner , of the United States District Court for the Eastern District of New York, sitting by
designation.2 FOR PLAINTIFF

- APPELLANT: Michael Confusione

, Hegge & 1 Confusione, LLC, Mullica Hill, NJ

. 2

3

FOR DEFENDANTS

- APPELLEE S : Byrne J. Decker, Ogletree, Deakins, Nash, 4 Smoak & Stewart, P.C., Portland, ME

. 5

6 Appeal from a n order of the United States District Court for the Eastern District of 7

New York ( Azrack

, J. ). 8

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 9

ADJUDGED, AND DECREED that the order entered on February 6, 2020, is 10

AFFIRMED

. 11

This appeal arises from an attempt t o enforce a settlement agreement entered into by 12

the parties. Plaintiff

- Appellant Hensley K. Mc C alla (“McCalla”) argues (1) that the 13

District Court lacked jurisdiction over the motion to enforce the settlement filed by 14

Defendants

- Appellees Liberty Mutual Life Assurance Corp. and Lincoln Financial Group

, 15

and (2) that, even if the D istrict C ourt had jurisdiction, it erred by granting that motion. We 16

assume the parties’ familiarity with the underlying f acts, procedural history, and arguments 17

on appeal, to which we refer only as necessary to explain our decision to affirm. 18

“We review de novo a district court ’s legal determination regarding its own subject 19

matter jurisdiction.” Hendrickson v. United States , 791 F.3d 354, 358 (2d Cir. 2015). 1 We also 20

review de novo a district court’s legal conclusions regarding the “ interpretation of the terms of 21

a settlement ag reement and its interpretation of state law

. ” Omega Eng ’ g, Inc. v. Omega, S.A.

, 22

432 F.3d 437, 443 (2d Cir. 2005)

. We evaluate “ a district court’s factual conclusions related 23

to a settlement agreement, such as whether an agreement exists or whether a party assented 24

to the agreement, ” for clear error. Id. 25

As to the District Court’s jurisdiction over the motion for settlement

, McCalla argues 26

that the District Court surrendered jurisdiction over the case when

, in September 2018

, it 27

entered a text order granting the parties’ “ motion to continue” in light of the pending 28

1 Unless otherwise noted, in quoting caselaw this Order omits all alterations, citations, footnotes, and internal
quotation marks.3 settlement “to the extent that this case is closed with leave to reopen on ten (10 ) days notice 1

by no later than 10/26/2018.” App’x 5

. He contends on this basis that th e court had no 2

jurisdiction to grant the motion to enforce the settlement. 3

N o order terminating the case or judgment of dismissal was entered on October 26

, 4

2018, however, or at any time before Defendants’ motion to enforce the settlement was filed 5

on Dece mber 21 , 2018

. Indeed, on November 1 the court docketed a “ Motion to withdraw 6

as attorney to stay proceedings and to file supporting affidavit under seal” filed by McCalla’s 7

counsel, Louis Simonetti. O n December 3, the District Court denied Simonetti’s mot ion to 8

withdraw

. O n December 21, it docketed Liberty Life’s motion to enforce the settlement. 9

And

, i n contrast, on July 25, 2019, when the District Court ordered the first case 10

consolidated with the second case filed by McCalla and removed by Liberty

, the second case 11

docket was marked “Civil Case Terminated”

— an entry that the docket for the first case did 12

not show until the motion to enforce the settlement was g ranted and the case was dismis sed 13

on February 6, 2020 . The docket of McCalla’s first action also reflects that the Clerk was 14

then directed , and not before, to “mark this case closed.” App ’x 7

. Similarly, in February 15

2020, upon dismissal of the consolidated cases and in conjunction with the entry of the 16

C ourt’s order “dismissing case,” the C ourt entered a notice reading “ C ivil C ase T erminated.” 17

Id. It was on the basis of that order and termination that the notice of appeal was filed. 18

In these circumstances, we conclude that the District Court did not dismiss th e first 19

McCalla case in either September or October 2018

. Cf. Leftridge v. Connecticut State Trooper 20

Officer #1283 , 640 F.3d 62 (2d Cir. 2011). Accordingly, the se proceedings to enforce a 21

settlement are not subject to the rule articulated in Kokkonen v. G uardian Life Ins. Co.

, 511 U.S. 22

375 (1994)

, that a court’s written judgment must expressly retain jurisdiction over settlement 23

enforcement to support its consideration of a post

- dismissal motion to enforce

. The Distric t 24

Court here therefore had jurisdiction to grant the motion to enforce the settlement that was 25

filed in the first action in December 2018

. And, t o the extent that any jurisdictional 26

ambiguity lingers

, the parties’ diversity and the amount in controversy f urther support the 27

court’s exercise of jurisdiction in its decision on the motion. See NCI Int’l, Inc. v. Mustafa

, 28

613 F ed . App’x 84 (2d Cir. 2015). 294 Next, f or substantially the reasons stated in the District Court’s memorandum and 1

order , we also conclude that the settlement agreement between the parties was enforceable 2

under both New York and federal law

. Email exchanges between counsel for the parties 3

demonstrate that McCalla’s former attorne y had authority to settle McCalla’s claims

. 4

See Tractebel Energy Mktg., Inc. v. AEP Power Mktg., Inc. , 487 F.3d 89, 95 (2d Cir. 2007) ; 5

Adjustrite Sys., Inc. v. GAB Bus. Servs., Inc. , 145 F.3d 543, 548 (2d Cir. 1998) (“[P]reliminary 6

agreements can create bi nding obligations.”). T he District Court’s factual findings , which we 7

reverse only for clear error, demonstrate d to this Court as well that the parties’ settlement 8

agreement is binding. See Winston v. Mediafare Entm’t Corp. , 777 F.2d 78, 80 (2d Cir. 1985 ). 9

Like the District Court, we are particularly persuaded by the record’s reflection that McCalla 10

did not contest any of the settlement’s terms other than the amount , an amount to which the 11

documents indisputably show that counsel for both parties agreed

. 12

McCalla argues that we should reverse the District Court’s order because it ruled 13

without conduct ing an evidentiary hearing on the question whether McCalla authorized his 14

attorney to set tle his claims

. H e did not make this argument , however, during the 15

proceedings before the District Court

. We therefore treat it as waived. See Harrison v. Republic 16

of Sudan , 838 F.3d 86, 96 (2d Cir. 2016). 17

* * * 18

We have considered all of the arguments ra ised by McCalla on appeal and find in 19

them no basis for reversal. For the reasons stated above

, the District Court ’s order is 20

AFFIRMED. 21

FOR THE COURT: 22

Catherine O’Hagan Wolfe, Clerk of Court 23