UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Steven Roy, Charles Wolff,

Eric Chaplin, Joel Smith,

John Gosselin, Bruce Usher,

William Johnson, and

Prayer F. Farrow,

Plaintiffs

v. Case No. 09-cv-75-SM

Opinion No. 2012 DNH 019

Commissioner, New Hampshire

Department of Corrections; et al.

Defendants

O R D E R

Defendants move to enforce a settlement of Plaintiff John

Gosselin’s underlying claims, a settlement to which, they say,

Gosselin and his attorney agreed. Gosselin objects to the

motion, claiming that he did not agree to settle his underlying

claims, or, he was coerced into doing so, and that to the extent

his legal counsel agreed to a settlement on his behalf, counsel

was not authorized to do so. An evidentiary hearing was held on

November 30, 2011.

Having heard testimony from Gosselin and his counsel,

Lawrence A. Vogelman, Esq., and having considered the evidence

presented, I find the following facts by a preponderance of the

evidence:

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1. Attorney Vogelman represented Gosselin in the

underlying civil case.

2. Gosselin and Attorney Vogelman voluntarily participated

in mediation proceedings conducted by an experienced and highly

regarded mediator, William Mulvey, Esq.

3. Before the mediation session began, Attorney Vogelman

explained to Gosselin that the mediator would facilitate

discussions aimed at settling his case and, if a settlement was

achieved, that would end the litigation.

4. The mediator, Attorney Mulvey, also explained to

Gosselin, before mediation efforts began, that if an agreement

was reached the underlying case would be over.

5. Gosselin understood that the purpose and goal of the

mediation effort was to settle his claims if possible. As

reflected in Exhibits A and F, documents prepared by Gosselin, he

understood that if a settlement agreement was reached, it

necessarily would include dismissal of his claims in exchange for

whatever consideration he accepted from the defendants in

settlement.

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6. The mediation process was successful. The parties

agreed to settle the case on terms described in Exhibit B — a

handwritten Memorandum of Understanding (MOU) dated November 16,

2010.

7. Attorney Vogelman explained the proposed settlement

terms to Gosselin before Gosselin voluntarily signed the

Memorandum of Understanding (Exhibit B). Gosselin signed the MOU

with knowledge that he was thereby evidencing his agreement to

settle the case on those terms, and he fully understood that the

pending litigation would be over — his claims would be dismissed

in exchange for the consideration to be provided by the

defendants.

8. A more formal document memorializing the settlement was

to be prepared and, if Attorney Vogelman found that document to

be consistent with the agreed-upon terms, Gosselin was expected

to sign it. That more formal agreement was produced and Attorney

Vogelman found it to be consistent and acceptable, but Gosselin

refused to sign it.

9. Attorney Vogelman also agreed to settle Gosselin’s

case, on Gosselin’s behalf, on the terms set out in the MOU. In

doing so, Attorney Vogelman acted within the scope of his

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representation of Gosselin, and with Gosselin’s authorization. 

Gosselin well knew the terms and effect of the settlement, and

well knew that Attorney Vogelman was acting on his behalf in

agreeing to the settlement terms. Gosselin was aware that

Attorney Vogelman agreed to and signed the MOU, yet he raised no

objection or protest, and gave no indication to anyone that

Attorney Vogelman was not authorized to settle the case on his

behalf.

10. Neither Attorney Vogelman nor the mediator, Attorney

Mulvey, nor any other person, coerced, or harassed, or misled

Gosselin in any respect with regard to the terms of the

settlement, or the effect of his agreement to settle on the terms

described in Exhibit B (i.e., the litigation would be over and

his claims dismissed).

11. Gosselin’s post-settlement claims that he was somehow

“coerced” into accepting the terms set out in the MOU are

rejected as not supported and not credible. Gosselin’s postsettlement claim that he did not agree to dismiss his suit, but

only agreed to accept the consideration offered by defendants,

with no agreement on his part to dismiss his claims, is not

credible and is rejected as not true. Gosselin understood that

the point of the mediation effort was to resolve the parties’

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dispute if possible, and he understood that his agreement to

settle necessarily included terminating the litigation by

dismissing his claims.

Under applicable law, an attorney acting within the scope of

his authority can effectively settle pending litigation and bind

his client to that settlement. Michaud v. Michaud, 932 F.2d 77

(1st Cir. 1991); Bock v. Lundstrom, 133 N.H. 161 (1990); Halstead

v. Murray, 130 N.H. 560, 565 (1988); Manchester Housing Authority

v. Zyla, 118 N.H. 268, 269 (1978). Attorney Vogelman agreed to

settle Gosselin’s case on the terms set out in the MOU and he

agreed to dismissal of Gosselin’s claims as a necessary and

integral part of the agreement to settle the pending litigation,

and, in doing so, he acted within the scope of his authority,

thereby binding Gosselin to the settlement’s terms. Gosselin

also personally agreed to settle his case on the terms described

in the MOU, with knowledge that “settlement” necessarily included

dropping his claims in the litigation as an integral part of any

settlement. Gosselin agreed to the settlement knowingly and

voluntarily; he was not coerced, harassed, misled, or deceived in

any manner.

The settlement agreement entered into by Gosselin and his

attorney is binding and enforceable. Accordingly, the

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defendants’ motion to enforce the settlement by dismissing

Gosselin’s claims is granted.

Conclusion

Gosselin’s claims are dismissed with prejudice by reason of

settlement. The court does not retain jurisdiction over the

settlement agreement for future enforcement purposes. The clerk

shall close this case. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

January 25, 2012

cc: David P. Slawsky, Esq.

Lawrence A. Vogelman, Esq.

John Gosselin, pro se

Danielle L. Pacik, Esq.

Nancy J. Smith, Esq.

Anne M. Edwards, Esq.

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