Opinion
Civil Action No. 10-cv-00144-WJM-MJW
08-11-2011
MICHAEL D. RUDNICK and ANN K. SMITH RUDNICK, Plaintiffs, v. BANK OF AMERICA, NATIONAL ASSOCIATION, as SUCCESSOR BY MERGER TO LASALLE BANK, NATIONAL ASSOCIATION, TRUSTEE UNDER THE POOLING AND SERVICE AGREEMENT DATED AS OF FEBRUARY 1, 2007, GSAMP TRUST 2007-NC-1; LITTON LOAN SERVICING, LP; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; PUBLIC TRUSTEE OF DENVER COUNTY; and All Unknown Persons Who Claim Any Interest in the Subject Matter of this Action, Defendants. Defendants.
ORDER REGARDING
DEFENDANTS' MOTION TO ENFORCE MATERIAL TERMS OF SETTLEMENT AND
FOR PROTECTIVE ORDER (DOCKET NO. 120)
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Defendants' Motions to Enforce Material Terms of Settlement and for Protective Order (docket no. 120). The court has reviewed the subject motion (docket no. 120), and the response (docket no. 123) thereto. In addition, the court has taken judicial notice of the court file and has considered applicable Federal Rules of Civil Procedure and case law. The court now being fully informed makes the following findings of fact, conclusions of law and Order.
In the subject motion (docket no. 120), Defendants seek an Order from this court to (1) enforce the material terms of settlement as stipulated by the parties and entered on the record on June 27, 2011 and (2) for a protective order, pursuant to Fed. R. Civ. P. 26(c), prohibiting the Rule 30(b)(6) depositions of Bank of America and Litton deponents which Plaintiffs seek to take.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1. That I have jurisdiction over the subject matter and over the parties to this lawsuit;
2. That venue is proper in the state and District of Colorado;
3. That each party has been given a fair and adequate opportunity to be heard;
4. That Magistrate Judge Watanabe served as the settlement conference judge in this case per the Order of Reference entered in this case. Magistrate Judge Watanabe has first hand personal knowledge of the discussions concerning settlement of this case between the parties;
5 That on June 27, 2011, the parties "agreed to agree" by July 15, 2011, and the court [Magistrate Judge Watanabe] ordered that if a
settlement agreement was not completed by that date [i.e. July 15, 2011], discovery and trial ordered by this court [Judge Martinez] would proceed;
6. That the parties did not reach a settlement agreement by either July 15, 2011 or July 25, 2011;
7. That there was never a total "meeting of the minds" concerning a settlement agreement;
8. That "agreements to agree" are generally unenforceable, because courts cannot force parties to reach an agreement, and cannot grant a remedy. New York Life ins. Co. V. KN Energy, Inc., 80 F.3d 411 (10th Cir. 1996)[citing Griffin v. Griffin, 699 P.2d 407, 409 (Colo. 1985); and,
9. That Defendants have failed to demonstrate "good cause" under Fed. R. Civ. P. 26(c) for a protective order. Denial of a protective order is appropriate under the facts of this case and this case needs to move forward to complete discovery timely so that this case can proceed to trial as scheduled on August 31, 2011, at 9:00 a.m. before Judge Martinez.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this court ORDERS:
1. That Defendants' Motions to Enforce Material Terms of Settlement and for Protective Order (docket no. 120) is DENIED;
2. That the parties are to forthwith meet, confer and set the Rule 30(b)(6) depositions of Bank of America and Litton. These depositions shall be completed by August 26, 2011;
3. That each party shall pay their own attorney fees and costs for this motion; and,
4. That the Bench Trial remains set before Judge Martinez on August 31, 2011, at 9:00 a.m.
Done this 11th day of August 2011.
BY THE COURT
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE