McLeod v. Copart. Inc.

Full title: JOHN McLEOD, Plaintiff, v. COPART. INC. and MICHAEL ALAN LYONS, Defendants

Court: United States District Court, N.D. Georgia, Atlanta Division

Date published: Jan 30, 2006

CIVIL ACTION NO. 1:04-cv-2308-GET (N.D. Ga. Jan. 30, 2006)

Opinion

CIVIL ACTION NO. 1:04-cv-2308-GET.

January 30, 2006

ORDER

ERNEST TIDWELL, District Judge

The above-styled matter is presently before the court on the parties' motion for order enforcing settlement and dismissal with prejudice [docket no. 36].

On December 23, 2003, plaintiff filed the instant negligence action against defendant Copart in the Eastern District of Tennessee, seeking recovery for injuries sustained in a collision with a vehicle driven for defendant Copart in Atlanta, Georgia. Copart moved to dismiss plaintiff's complaint on February 9, 2004 for improper venue and failure to state a claim. Plaintiff filed an amended complaint on February 13, 2004, which added the driver, Michael Alan Lyons ("Lyons") as a party defendant and an allegation that the accident occurred while Lyons was driving for Copart. Judge Curtis Collier of the Eastern District of Tennessee, in his July 28, 2004 order, transferred the case to the Northern District of Georgia due to improper venue.

On January 12, 2005, defendants filed a motion to compel plaintiff to file initial disclosures and respond to defendants' discovery requests. On February 24, 2005, this court issued an order granting defendants' motion to compel and ordering plaintiff to file initial disclosures and responses to defendants' discovery requests. On April 4, 2005, defendant filed a motion requesting dismissal as a sanction for plaintiff's failure to comply with this court's order on the motion to compel. On June 28, 2005, this court issued an order denying defendant's motion and directing the clerk to re-serve all orders filed since the transfer of the case, because the Eastern District of Tennessee had provided this court with an incorrect address.

In a conversation with the docket clerk on November 7, 2005, plaintiff's attorney, Mr. Perry, informed the court that the case had settled but that he needed to locate plaintiff before providing the court with documentation of the settlement. On January 13, 2006, when contacted by the court because no settlement papers had been provided, Mr. Perry informed the court that he had been disbarred and plaintiff had died on October 30, 2005. On January 24, 2006, the parties filed a joint motion for an order enforcing settlement and dismissal of the action with prejudice ("joint motion.")

Discussion

In the joint motion, the parties allege that plaintiff approved the settlement of his claim on September 21, 2005, and attach a photocopy of a handwritten note purportedly signed by plaintiff, stating, "I authorize a settlement in my case for the amount of $6000.00 or better." The joint motion requests the court to permit Mr. Perry to endorse the settlement check, deposit the funds in his attorney's trust account, withdraw $2000.00 for attorney's fees, and deposit the remainder into the Registry of this Court. The joint motion was signed by defense counsel and Mr. Perry on January 18, 2006. Mr. Perry was disbarred on November 21, 2005, over two months prior to the submission of the joint motion, which he signed as attorney for the plaintiff.

Accordingly, this court finds that plaintiff's attorney is no longer authorized to act on plaintiff's behalf, and it can therefore not approve the joint motion. The court hereby DIRECTS Mr. Perry to return the settlement check to defendant. Defendant is DIRECTED to issue a new check for the same amount payable to the clerk of this court, and deposit the check into the registry of this court in an interest bearing account. Defendant is further DIRECTED to undertake to inform the court as to personal representative and/or heirs of the deceased. Upon receipt of that information, the court will issue a show cause order directing the personal representative or heirs to explain their legal position relative to the proceeds of the settlement check, including whether they dispute the issue of settlement.

Summary

The parties' motion for order enforcing settlement and dismissal with prejudice [docket no. 36] is hereby DENIED. Mr. Perry is DIRECTED to return the settlement check to defendant. Defendant is DIRECTED to issue a new check for the same amount to the clerk of this court, and deposit the check into the registry of this court in an interest bearing account. Defendant is further DIRECTED to undertake to inform the court as to personal representative and/or heirs of the deceased. Upon the provision of that information, the court will issue a show cause order directing the personal representative or heirs to explain their legal position relative to the proceeds of the settlement check, including whether they dispute the issue of settlement.

SO ORDERED.