Opinion
85 Civ. 3006 (CSH).
April 25, 2005
MEMORANDUM, OPINION AND ORDER
In an opinion and order reported at 2004 WL 2496074 (S.D.N.Y. Nov. 4, 2004) ( "Valentine I"), the Court granted defendant's motion to dismiss plaintiff's complaint for age discrimination under Rule 41(b), Fed.R.Civ.P., for failure to prosecute, and denied plaintiff's cross-motion for partial summary judgment. Familiarity with that opinion is assumed. It sufficiently sets forth the procedural history of this action, which began as an age discrimination lawsuit brought under the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621 et seq. ("ADEA") by the plaintiff, Paul F. Valentine, against his former employer, the Metropolitan Life Insurance Co. ("MetLife").
Plaintiff, represented by counsel, filed a motion for reconsideration of the Court's opinion in Valentine I, purportedly under Rule 59(e), Fed.R.Civ.P. Rule 59 deals generally with motions for "new trials" and "amendment of judgments." Rule 59(e) provides: "Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." But the provisions of Rule 59 are not applicable to the case at bar, because the text of the Rule makes it plain that it addresses motions for new trials after a trial has been completed and the amendment of judgments entered after trial. Plaintiff's complaint was dismissed on motion and before trial. In that circumstance, plaintiff's present motion for reconsideration lies under Local Civil Rule 6.3 of this Court.
Rule 6.3 provides in part:
A notice of motion for reconsideration or reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion. There shall be served with the notice a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked. . . . No affidavits shall be filed by any party unless directed by the court.
Plaintiff's present motion, although prepared and submitted by counsel, does not comply with Rule 6.3. The motion papers do not include a memorandum "setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked" in the November 4 Opinion. In further violation of the Rule, the papers do include a sworn declaration by the plaintiff dated December 14, 2004 with evidentiary material attached as exhibits, although the Rule provides that no affidavits shall be filed by any party "unless directed by the court," and there had been no such direction at the time of filing.
Plaintiff's motion for reconsideration was timely. The November 4 Opinion was docketed on November 5, 2004. By order dated November 22, 2004 and docketed on November 29, the Court granted plaintiff's application, made before the time to move for reconsideration under Rule 6.3 had elapsed, to enlarge that time to and including December 15, 2004. The present motion was filed on that day.
Notwithstanding these imperfections, and in the interests of justice, the Court has reviewed the case and perceives sua sponte a potential matter of fact and controlling decision of law which the November 4 Opinion may have overlooked.
Plaintiff's core position at the present stage of this protracted litigation is that after a first effort at settling his claims miscarried in 1987, he thereafter repeatedly and in good faith agreed to a settlement which MetLife repeatedly and in bad faith refused to consummate. See Valentine I, 2004 WL 2496074, at *1:
Plaintiff asserts that he then accepted other offers of settlement in 1989, 1991, and again in 1994 but each time, MetLife, through its counsel, later withdrew the offer without a word of explanation. Plaintiff presents a copy of a 1994 settlement agreement which he alleges had been agreed upon by the parties but subsequently withdrawn by MetLife. However, the copy of the agreement he presents is neither signed nor dated by either of the parties or counsel.
(emphasis added).
A closer examination of the agreement just referred to is in order. It is in the form of a legal document to be filed with the Clerk of the Court in the captioned action. The document bears the title of this Court and the caption and docket number of the action. The document is characterized, beneath the docket number, as a "Confidential Settlement Agreement, Waiver and General Release." Above the caption there appears the name and address of "Davidoff Malito," described as "Attorneys for defendant" MetLife. The signature page contains a line for signature by Richard L. Steer, Esq., a member of the Davidoff firm, as "Attorney for Defendant." The signature line for Valentine refers to him as "Plaintiff Pro Se."
The form of this document indicates clearly enough that it was prepared by the then attorneys for MetLife and forwarded to Valentine. That indication is confirmed by the text of the document. I will quote the first two paragraphs of the text:
This Confidential Settlement Agreement, Waiver and General Release (referred to as the "Agreement and Release") is entered into between Paul F. Valentine ("Valentine") and Metropolitan Life Insurance Company ("MetLife" or "defendant").
Valentine understands that he has twenty-one (21) days from November __, 1994, the date he received this Agreement and Release, to consider it. Valentine understands that he may revoke this Agreement and Release during the seven (7) day period after the date he signs it, and that it does not become effective and enforceable until the eighth day after he signs it (which will be referred to in this Agreement and Release as the "effective date" of this Agreement and Release. . . .
This language makes it plain that MetLife had agreed to the terms of this settlement agreement, which counsel for MetLife sent to Valentine some time in November 1994. I will hereafter refer to this document as "the November 1994 agreement." All that was required for the November 1994 agreement to become effective and binding upon both parties was (1) Valentine's signature within 21 days after he received the agreement, and (2) his failure to exercise his right of revocation during the 7 days after he signed it. The November 1994 agreement confers no right of revocation upon MetLife.
The benefit to Valentine conferred by the November 1994 agreement is stated in ¶ 2 on page 3. The preceding ¶ 1 recites that Valentine was then receiving from MetLife monthly retirement annuity payments in the amount of $980.78 "during his lifetime an annuity payments of $490.39 per month to be continued to his spouse, Judith during her life in the event she survives Valentine . . ." ¶ 2 provides in part:
Commencing with the first day of January following the effective date of this agreement, MetLife will provide Valentine payments of $745.32 per month for his life under a Single Life Annuity. Such annuity shall have no right of survivorship.
¶ 1 of the agreement recites that the payments called for by ¶ 2 do not "add to, diminish, or . . . effect in any way" the payments described in ¶ 1. In other words, ¶ 2 of the November 1994 agreement is intended to confer an additional economic benefit upon Valentine. This is made explicit by ¶ 3(A) of the agreement, which provides in part that "[t]he sum paid on behalf of defendants to Valentine as set forth in paragraph `2' above, is for alleged pain and suffering, and represents a full and complete settlement in satisfaction of any and all claims against defendants . . ."
The problem with the language quoted supra from the Court's opinion in Valetine I is that it implies a settlement agreement must be signed by both parties before it is binding on either. That is not a correct proposition under the governing New York law, which does not include a statute of frauds with respect to settlement agreements. Under certain circumstances, oral settlement agreements are binding and enforceable. The Second Circuit summarized the pertinent New York law concerning settlement agreements in Ciaramella v. Reader's Digest Association, Inc., 131 F.3d 320, 322 (2d Cir. 1997):
Under New York law, parties are free to bind themselves orally, and the fact that they contemplate later memorializing their agreement in an executed document will not prevent them from being bound by the oral agreement. However, if the parties intend not to be bound until the agreement is set forth in writing and signed, they will not be bound until then.
(citations omitted).
Guided by this authority, what may be said of the November 1994 agreement in the case at bar?
First, it is reasonable to infer that MetLife had previously agreed orally on the terms recited in the agreement. If it had not done so, the Davidoff firm would not have gone to the effort of drafting the November 1994 agreement, which is lengthy, meticulous, and for which MetLife presumably paid an appropriate legal fee.
Second, the November 1994 agreement does not indicate that the parties intended "not to be bound until the agreement is set forth in writing and signed" by both parties. The plain language of the November 1994 agreement shows that MetLife had agreed to its terms and conditions. While there is a signature line for MetLife and its counsel, there is no provision in the agreement that MetLife is not bound by the agreement until those signatures are affixed. In that regard, the agreement differs with respect to Valentine. In order to become effective, the agreement required Valentine to sign it within a specified time period and then refrain from revoking his assent for an additional period. If Valentine conducted himself in that fashion, it would appear that under the rule articulated by the Second Circuit in Ciamarella the November 1994 agreement became binding upon and enforceable against MetLife.
The difficulty with the present record is that it does not demonstrate whether or not Valentine signed and returned the November 1994 agreement. In his initial affidavit, verified October 8, 2004, Valentine says at ¶ 7: "Annexed hereto is a copy of the offer proposed by Mr. Steer in November of 1994 to which I agreed. I never heard from MetLife again" (emphasis added). Valentine does not say whether he signified that agreement by signing it, which was required to make the agreement effective and binding. Valentine's declaration on his present motion for reconsideration says that "[I] took MetLife until November of 1994 to produce an agreement which ultimately led to an acceptable agreement" (emphasis added), but again he does not state whether he made the agreement effective by signing it. Mr. Steer says in an affidavit dated October 20, 2004 at ¶ 15 that "although there was a written settlement agreement presented to Plaintiff, he never signed it indicating his acceptance."
I will consider for this limited purpose Valentine's declaration submitted on the present motion for reconsideration.
In these circumstances, Mr. Valentine is directed to file and serve a supplementary affidavit or declaration, on or before May 13, 2005, describing the manner in which he "agreed" to the November 1994 agreement. Specifically, his statement should recite whether he signed the agreement, and, if he did sign it, what he then did with it.
It is SO ORDERED.