Opinion
Case No. 1:11-cv-07005
03-15-2013
Donald Smolinski, Plaintiff, v. Michael Oppenheimer, et al., Defendants.
Richard J. Meier Attorney for Plaintiff
PLAINTIFF'S MOTION FOR ENTRY OF
JUDGMENT AGAINST DEFENDANTS
Now Comes Plaintiff, by and through his attorney, pursuant the Parties' settlement agreement, and respectfully moves for Judgment against Defendants Michael Oppenheimer, aka Anthony Renteria, and Weinerman & Associates, LLC, joint and severally, for failure to comply with the terms of an agreed upon settlement agreement. In support of this motion, Plaintiff states as follows:
1. On February 1, 2013, the parties held a settlement conference with Judge Keys that resulted in a settlement.
2. The terms of the settlement provided from half the funds to be paid within 10 days of the settlement release and the second half 30 days thereafter. (See Exhibit A).
3. At the settlement conference, Plaintiff expressed a desire to include additional safeguards into the settlement agreement due to previous collection agencies that had been dilatory in complying with settlement agreements. Defendants expressly stated that they would not be dilatory and make the payments in a timely fashion.
4. On February 13, 2013, Plaintiff submitted an executed copy of the settlement agreement to Defendants. (See Exhibit B).
5. Based on the terms of the agreement, Defendants were required to make the first payment by February 23, 2013 and the second payment by March 25, 2013.
6. To date, however, Defendants have failed to make the first payment despite several reminder to do so, as well as providing assurances that it would.
7. On February 28, 2013, Defendants represented to their counsel that the first payment had been sent the previous week but Plaintiff has yet to receive the same. (See Exhibit B).
8. On March 5, 2013, Plaintiff's attorney sent Defendants' attorney an email asking for status of the settlement funds. The email went unanswered.
9. On March 6, 2013, Plaintiff's attorney sent Defendants' attorney an email notifying Defendants of Plaintiff's intent to file this Motion on March 12, 2013.
10. On March 8, 2013, Defendantss' attorney responded to the March 6, 2013 email requesting that Plaintiff postpone the filing of this Motion; Plaintiff agreed to postpone filing this Motion until March 15, 2013.
11. On March 14, 2013, Plaintiff's attorney telephoned Defendants' attorney and left a voicemail asking for a status of the settlement funds and/or assurances thereof to avoid filing this Motion. Plaintiff did not receive any response to the voicemail.
12. It is reasonably apparent that Defendants are being purposefully dilatory.
13. Under the terms of the agreement, Defendants dilatory compliance with the settlement agreement entitles Plaintiff to request Judgment against Defendants for the unpaid settlement funds and any attorney fees incurred by having to seek enforcement of the settlement agreement. (See Exhibit A). To date, Plaintiff incurred an additional $750 in reasonable attorney's fees.
14. Based on the foregoing, Plaintiff respectfully requests that this Court enter Judgmen against Defendants, joint and severally, in the amount of $8,250 and make the same immediately due.
RESPECTFULLY SUBMITTED,
Meier LLC
By: __________
Richard J. Meier
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that, March 15, 2013, a copy of the foregoing Motion was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt.
Richard J. Meier