WILLIAM G. COBB, Magistrate Judge.
Before the court is Defendant Yellow Cab of Reno, Inc.'s (Yellow Cab) Motion to Enforce Settlement Agreement. (Doc. # 95, Exhibits at Docs. # 95-1, 95-2, 95-3, 95-4.) Plaintiffs, James and Melodie Doud (the Douds), filed a response. (Docs. # 100 (response), # 101 (exhibits).)
The Douds filed their Complaint on December 4, 2013, asserting the following claims:
(1) Violation of Title III of the Americans with Disabilities Act (ADA) (James and Melodie Doud);
(2) Violation of Title I of the ADA (Associational Discrimination, James Doud);
(3) Violation of Title I of the ADA (Retaliation in Employment, James Doud);
(4) Violation of Nevada Revised Statutes 706.361, Regulating Motor Carriers;
(5) Violation of Nevada Revised Statute 706.366, Relating to Rights of Persons with Service Dogs;
(6) Tortious Failure to Furnish Facilities to a Member of the Public.
The Complaint alleges that Melodie Doud is disabled and utilizes a portable electric scooter and crutch for mobility, and is frequently accompanied by her two service dogs. (Compl., Doc. # 11.) James Doud was an employee of Yellow Cab at the time the incidents that are the subject of the complaint occurred. Generally, the Douds allege that they were denied transportation services by Yellow Cab on two occasions in violation of the ADA, various Nevada statutes, as well as Nevada common law, and that Mr. Doud was discriminated and retaliated against when he was terminated from his employment with Yellow Cab.
The Douds moved for and were granted a preliminary injunction with respect to their claim under Title III of the ADA by District Judge Du prior to the parties' agreement to enter into the short trial program and the consent and assignment of this case to the undersigned for all purposes. (Docs. # 9 (Mtn. for Prelim. Inj.), # 30 (Order granting Mtn. for Prelim. Inj.).) When the parties consented to the undersigned being assigned to this case, the court held a status conference where it set a trial date and referred the matter to the Honorable Robert A. McQuaid, Jr., recalled United States Magistrate Judge, to conduct a settlement conference, which was set for March 5, 2015. (See Docs. # 55, # 57.)
It was subsequently established by way of the Douds' motion for partial summary judgment that Yellow Cab denied the Douds transportation services in violation of Title III of the ADA when they sought transportation from Reno's airport on April 9, 2013, and again on May 20, 2013. (Doc. # 69.) The Douds also filed a motion for partial summary judgment with respect to Yellow Cab's twenty-fifth affirmative defense, which asserts that James Doud's Title I claims fail because he was an independent contractor and not an employee of Yellow Cab. (Doc. # 31.) The court granted this motion, finding that James Doud was an employee of Yellow Cab. (Doc. # 79.)
The claims still pending before the court are: (a) Melodie Doud's fifth cause of action that on April 9, 2013, one of Yellow Cab's drivers refused to transport her because she had her two service dogs with her in violation of Nevada Revised Statute 706.366 (Doc. # 1 at 5 ¶¶ 15, 87-91); and (b) James Doud's second and third causes of action under Title I of the ADA, alleging that he was discriminated and retaliated against when he was terminated from his employment because of Melodie Doud's disability and because he complained about being refused service by Yellow Cab's drivers. (Doc. # 1 ¶¶ 12, 39-41, 62-77.)
The parties participated in a settlement conference before Judge McQuaid on March 5, 2015, but were unsuccessful in resolving the case, though they continued their settlement discussions outside of the formal court setting. (See Minutes at Doc. # 71.)
On March 31, 2015, Yellow Cab filed a motion seeking sanctions, or alternatively, an order compelling settlement. (Doc. # 80.) In short, this motion was denied without prejudice because the motion contained confidential settlement communications and Yellow Cab, despite being given an opportunity to do so, failed to file an accompanying motion for leave to file the document under seal. (See Docs. # 81, # 85.)
Following the entry Judge Du's order granting the Douds' motion for preliminary injunction, the Douds filed a motion for interim attorneys' fees and costs. (Doc. # 32.) After the court issued its order granting the Douds' partial summary judgment as to the Title III ADA claim, the court also issued an order granting the Douds' motion for an award of interim attorneys' fees and costs (Doc. # 21), concluding that the Douds' are the prevailing party with respect to the Title III ADA claims. (Doc. # 70.) Due to time constraints, the court noted that it would issue a separate order tabulating the precise amount of fees and costs to which the Douds are entitled. (Id.)
On May 1, 2015, Yellow Cab filed, and the court approved, a substitution of counsel indicating that Michael Pintar, Esq., would be substituted in as attorney of record for Yellow Cab in place of Michelle Bumgarner, Esq. (Docs. # 91, # 92.)
After the motion to supplement the request for fees and costs was fully briefed, the court entered an order on May 18, 2015, granting the motion to supplement the fees and costs sought and awarded the Douds a total of $152,273 in attorneys' fees and $4,122.06 in costs. (Doc. # 94.)
On May 29, 2015, Yellow Cab filed the instant motion to enforce a settlement agreement. (Doc. # 95.)
Yellow Cab argues that the Douds' counsel made a global settlement offer on May 1, 2015, that was held open until June 8, 2015, and which Yellow Cab accepted in writing on May 21, 2015, but the Douds now refuse to recognize Yellow Cab's acceptance of the offer. (Doc. # 95.) As such, it seeks an order from the court enforcing the settlement.
The Douds, on the other hand, maintain that the offer had been discussed verbally with Yellow Cab's prior counsel Michelle Bumgarner, who knew that it would only be held open until May 8, 2015, because Ms. Keyser-Cooper was scheduled to leave the country on vacation on May 11, 2015, for a three week trip to Morocco. (Doc. # 100.) When Mr. Pintar substituted into the case, the very same offer was conveyed to him and Ms. Bumgarner in writing. Ms. Keyser-Cooper initially referenced the May 8, 2015 deadline, but in subsequent references to the deadline for acceptance, she accidentally transposed June 8, 2015 with May 8, 2015, after she had made reference to the scheduled Ninth Circuit mediation which was to occur on June 8, 2015. (Doc. # 100.) Ms. Keyser-Cooper contends that she communicated the May 8, 2015 date verbally to Mr. Pintar, and when that date came and went, she communicated to Mr. Pintar in an email that the offer was "no longer on the table." Alternatively, the Douds argue that there was no meeting of the minds sufficient to create an enforceable contract when Mr. Pintar sent the email "accepting" and stating that they could "discuss the particulars" upon Ms. Keyser-Cooper's return, because the offer left open further terms for negotiation, such as: the court's retention of jurisdiction, survival of the court's substantive orders following settlement such as the injunctive relief obtained by Mrs. Doud, what happens to Mrs. Douds remaining claim under Nevada Revised Statute 706.366, terms of indemnity, and confidentiality. The Douds also argue that the "acceptance" does not reflect agreement on the material terms, because while the offer required a confession of judgment, Yellow Cab's purported acceptance only references a dismissal of all claims. For this reason, the Douds also contend that Yellow Cab's "acceptance" was actually a counter-offer because the terms it contained were additional or different from those contained in the offer.
In its reply, Yellow Cab contends that the offers made to Ms. Bumgarner verbally on April 30, 2015, and in writing to Mr. Pintar on May 1, 2015, should be considered as separate offers, and the May 1, 2015 offer had an expiration date of June 8, 2015. (Doc. # 102 at 2.) Yellow Cab also argues that the May 1, 2015 offer was not conditioned on acceptance prior to the court issuing its order awarding fees. (Id. at 4-5.) Yellow Cab asserts that the May 8, 2015 email communications did not revoke the offer, because Yellow Cab contends that the comment that the offer was "no longer on the table" was directed to the earlier verbal offer made to Ms. Bumgarner and not the written May 1, 2015 offer to Mr. Pintar. (Id. at 5-6.) Yellow Cab contends that the ongoing discussions that day are evidence that the offer was not revoked. (Id. at 6-7.) Yellow Cab maintains that the offer is unambiguous and that the court may not consider extrinsic evidence in construing the agreement. (Id. at 7-9.) Finally, Yellow Cab asserts that there was a meeting of the minds as to the essential terms. (Id. at 10-12.) Yellow Cab contends that the scope of the agreement was clear because the parties both assented to a release of the attorney's fees owed for the ADA claims and a release of Doud's claim. (Id. at 11.) Yellow Cab insists that the acceptance communication's inclusion of reference to a dismissal does not add a material term to the offer, but reiterates that the claims will be released in return for the payment. (Id. at 12.)
"`The construction and enforcement of settlement agreements are governed by principles of local law.'" Jones v. McDaniel, 717 F.3d 1062, 1067 (9th Cir. 2013) (quoting O'Neil v. Bunge Corp., 365 F.3d 820, 822 (9th Cir. 2004)). "That is true, `even where a federal cause of action is settled or released.'" Id. (quoting Botefur v. City of Eagle Point, 7 F.3d 152, 156 (9th Cir. 1993)).
"Under Nevada law, `a settlement agreement[`s] construction and enforcement are governed by principles of contract law.'" Id. (citing May v. Anderson, 121 Nev. 668, 119 P.3d 1254, 1257 (2005)). "The `ultimate goal is to effectuate the contracting parties' intent.'" In re Amerco Derivative Litig., 252 P.3d 681, 693 (Nev. 2011). "Although an analysis of a settlement's terms starts with the language of the agreement, `when that intent is not clearly expressed in the contractual language, [courts] may also consider the circumstances surrounding the agreement.'" Id.
For a contract to be enforceable, basic contract principles require an offer and acceptance, meeting of the minds, and consideration. May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005).
Preliminarily, the court concludes that it is appropriate to consider extrinsic evidence in resolving this dispute. "The parol evidence rule precludes the admission of extrinsic `evidence that would change the contract terms when the terms of a written agreement are clear, definite, and unambiguous." In re Cay Clubs, 340 P.3d 563, 574 (Nev. 2014) (quoting Ringle v. Bruton, 120 Nev. 82, 91, 86 P.3d 1032, 1037 (2004)).
The letter Ms. Keyser-Cooper sent to Ms. Bumgarner and Mr. Pintar on May 1, 2015, setting forth the settlement offer is ambiguous on its face as to how long the offer would be held open. Resolving this ambiguity is essential to determining whether Mr. Pintar timely accepted the offer, or whether it was properly revoked on May 8 or May 20. Because the offer is ambiguous as to this issue, the court may consider extrinsic evidence in determining whether there is an enforceable settlement agreement.
The court will now provide a summary of the relevant evidence submitted along with the briefing and at the evidentiary hearing on this motion, and will then turn to its analysis of whether the parties entered into an enforceable agreement.
By way of background only, Ms. Keyser-Cooper sent Ms. Bumgarner a letter on April 15, 2015, asking that Ms. Bumgarner provide the letter to her client in hopes of resolving this matter. (Doc. # 95-1 at 2-5; Doc. # 101-1 at 14-17.) The letter explained, inter alia, that there were three components to any settlement of this case: (1) attorneys' fees; (2) Mr. Doud's claim; and (3) how to structure the settlement. (Id.)
On April 29, 2015 at 5:12 p.m., Ms. Keyser-Cooper sent Ms. Bumgarner an email stating: "I have a formal offer to present to you. It will need to be finalized by Friday may 9 or it will be withdrawn. If you want to hear it, please call tomorrow. Thanks Terri." (Doc. # 101-1 at 21; Evid. Hearing Ex. 8.)
On May 1, 2015, Ms. Keyser-Cooper sent a letter to Ms. Bumgarner and Mr. Pintar. (Doc. # 95-2; Doc. # 101-2 at 4-5; Ex. 35.) It states, in relevant part:
(Doc. # 95-2 at 1-3.)
(Doc. # 95-3 at 1; Doc. # 101-2 at 7; Ex. 11; Ex. 32 (bold added).)
Ms. Keyser-Cooper testified that the offer she made verbally to Ms. Bumgarner on April 30, 2015, was identical to the offer she put in writing to Mr. Pintar and Ms. Bumgarner on May 1, 2015, and that she reiterated verbally to both Ms. Bumgarner and Mr. Pintar that the offer would expire on May 8, 2015, but she accidentally wrote June 8, 2015 in the May 1 letter and May 1 email after she had made reference to the June 8, 2015 Ninth Circuit mediation. Ms. Bumgarner's testimony corroborates Ms. Keyser-Cooper's testimony concerning the May 8 deadline and the urgency in getting this resolved before she left the country (on May 11). Mr. Pintar testified that he did not recall the mention of the May 8 date verbally.
On May 7, 2015, at 5:29 p.m., Ms. Keyser-Cooper sent an email to Mr. Pintar, referring him to an attached letter of the same date and said: "I look forward to hearing your intentions on how you wish to proceed with the case on my return." (Doc. # 101-2 at 9; Ex. 12.) The letter of May 7 states in pertinent part:
(Doc. # 101-2 at 12; Ex. 31 (bold added).)
(Doc. # 101-2 at 14; Ex. 14.)
In response, Ms. Keyser-Cooper wrote to Mr. Pintar:
(Doc. # 101-2 at 17; Ex. 15 (bold added).)
On May 8, 2015 at 10:02 a.m., Mr. Pintar wrote: "The only way I will settle the case is if it [sic] globally." (Doc. # 101-1 at 2, Doc. # 101-2 at 20; Ex. 16.)
On May 8, 2015, at 10:09:26 a.m., Ms. Keyser-Cooper sent an email to Mr. Pintar, stating, in relevant part:
(Doc. # 101-1 at 2; Doc. # 101-3 at 2; Ex. 17; Ex. 33 (bold added).)
On May 8, 2015, at 10:12 a.m., Mr. Pintar wrote to Ms. Keyser-Cooper: "As I understand it, you are at $130,00[0] and we are at $100,000. Is that correct? If so, we should be able to resolve the case." (Doc. # 101-3 at 4; Ex. 18.)
Ms. Keyser-Cooper responded at 10:23 a.m.:
(Doc. # 101-2 at 6; Ex 19.)
On May 20, 2015, Ms. Keyser-Cooper emailed Mr. Pintar: "Hi Mike, As you are aware I am traveling in Morocco and unable to telephone you until my return on June 1.
On May 21, 2015, Mr. Pintar sent Ms. Keyser-Cooper (copying Ms. Bumgarner, Ms. Vaillancourt, and Ninth Circuit mediator Roxane Ashe) a letter stating:
(Doc. # 95-4 at 2; Doc. # 101-3 at 10; Ex. 21; Ex. 34 (bold added).)
On May 26, 2015, Ms. Keyser-Cooper emailed Mr. Pintar regarding his letter purporting to accept the settlement offer. (Doc. # 101-3 at 17.) Her email states in relevant part:
(Doc. # 101-3 at 17.)
First, the court will address Yellow Cab's contention that there were two separate offers: one made verbally to Ms. Bumgarner on April 30, 2015, and one made in writing to Mr. Pintar on May 1, 2015. The court concludes based on the evidence presented that the offer conveyed verbally to Ms. Bumgarner on April 30, 2015, and the offer set forth in writing to Ms. Bumgarner and Mr. Pintar on May 1, 2015 are the same offer. The testimony given by both Ms. Keyser-Cooper and Ms. Bumgarner supports this conclusion.
Second, the power of an offeree to accept an offer may be terminated at a time specified in the offer. Morrison v. Rayen Investments, Inc., 624 P.2d 11, 12, 97 Nev. 58, 60 (Nev. 1981); see also Restatement (Second) of Contracts § 41 (Am. Law. Ins. 1981); 1 Williston on Contracts § 5:5 (4th ed). "[W]here an offer has expired by lapse of time, an attempt to accept is ineffectual to create a contract." Id.
Despite Ms. Keyser-Cooper's transposition of June for May in the May 1 letter and email, it was understood that the offer would expire on May 8, 2015. Ms. Keyser-Cooper testified that this was her intent and that she conveyed this to both Ms. Bumgarner and Mr. Pintar verbally. In addition, the May 1, 2015 letter itself confirms that the offer made verbally to Ms. Bumgarner, which is the same offer conveyed in writing in the May 1, 2015 letter, was "good until May 8, 2015." (Doc. # 95-2 at 1.) Ms. Bumgarner testified that Ms. Keyser-Cooper had conveyed the May 8, 2015 deadline to her verbally, and that Ms. Bumgarner understood that the reason for the May 8, 2015 deadline was because Ms. Keyser-Cooper was going on vacation. Ms. Bumgarner recalled Ms. Keyser-Cooper stressing that she wanted to get the settlement resolved before she left on her trip. Mr. Pintar testified that he recalled having discussions with Ms. Keyser-Cooper after he substituted into the case, but did not recall her saying there was a May 8 deadline.
Ms. Keyser-Cooper sent an email and letter to Mr. Pintar on May 7, 2015, the day before she contends the offer was going to expire, asking Mr. Pintar to let her know his intentions on proceeding with the case when she returned to the country. In that letter she stated: "As it now stands, you do not appear to be interested in resolving the case. That is fine. No problem. When the Court issues it's [sic] ruling on attorney's fees and costs, I will expect the amount to be paid. We can proceed to trial on the ADA title I retaliatory termination portion of the case. . ." (Ex. 31.) These communications support Ms. Keyser-Cooper's contention that it was understood that the offer was open until May 8, prior to her departure.
Based on: (1) the testimony of Ms. Keyser-Cooper and Ms. Bumgarner that the offer was good through May 8; (2) the initial reference to May 8 in the May 1, 2015 offer; and (3) the testimony that Ms. Keyser-Cooper made it well known that she would be leaving the country on May 11, 2015, and would be gone for three weeks and wanted this wrapped up before she left, the court cannot find that there was ever an intention to hold the offer out until June 8, 2015.
Third, whether the offer was held open until May 8, 2015, or June 8, 2015, Ms. Keyser-Cooper effectively revoked the offer before Mr. Pintar sent his May 21, 2015 letter purporting to accept the offer. It is well settled that an offeror may revoke an offer at any time prior to acceptance, thereby terminating the offeree's power to accept. Restatement (Second) of Contracts §§ 36, 42 (Am. Law. Ins. 1981); see also Comment (a) to § 42; 1 Williston on Contracts § 5:8 (4th ed.). This rule applies even when the offeror has agreed to keep the offer open for a certain period of time. See 1 Williston on Contracts § 5:8 (4th ed) ("[E]ven though the offeror specifies in the offer a definite time within which acceptance may be made, the offeror may, nevertheless, revoke the offer within that time period."). A revocation need not say "I revoke," instead, it is simply "[a]ny clear manifestation of unwillingness to enter into the proposed bargain." Restatement (Second) of Contracts § 42, Comment (d); see also 1 Williston on Contracts § 5:8 (4th ed.) ("any statement which clearly indicates or implies unwillingness on the part of the offeror to contract according to the terms of the offer is sufficient, though the offeror does not use the word `revoke' or any similar operative language").
Ms. Keyser-Cooper sufficiently manifested her intent to revoke the offer first in her communications with Mr. Pintar on May 8, 2015.
At 9:07 a.m. on May 8, 2015, she wrote to Mr. Pintar, in relevant part:
(Ex. 15.)
At 10:09 a.m. on May 8, 2015, she wrote, in part:
(Ex. 17.)
The court concludes that these communications sufficiently indicated that the May 1 offer was no longer on the table, and that it was Ms. Keyser-Cooper's intention to wait for the court's award on the attorneys' fees issue and proceed with the case. Even if this did not sufficiently manifest an intention to revoke the May 1 offer, her email to Mr. Pintar on May 20, 2015 certainly did. This letter was sent two days after the court entered its order awarding the Douds $152,273 in attorneys' fees and $4,122.06 in costs. The email states: "As you are aware I am traveling in Morocco and unable to telephone you until my return on June 1. Please let me know when I can expect a check for the amount of fees and costs awarded by the court?" This clearly manifests an intent to revoke the offer. One of the terms of the May 1 offer was the payment of $100,000 for the attorneys' fees component of the case, a significant reduction from the amount sought bay way of the Douds' fees motions. This May 20 communication clearly indicates that the offer to reduce the amount of fees sought conveyed in the May 1 offer was being revoked, and that Ms. Keyser-Cooper was now seeking the full amount of fees awarded by the court. Therefore, Ms. Keyser-Cooper effectively revoked the May 1 offer.
Finally, even if the offer was held open to June 8, 2015, and even if Ms. Keyser-Cooper did not effectively revoke the offer on May 8 or May 20, Mr. Pintar's letter purporting to accept the offer does not reflect a meeting of the minds as to the material terms of the May 1 offer.
As set forth above, "a settlement agreement is a contract" and "its construction and enforcement are governed by principles of contract law." May, 119 P.3d 1254, 1257 (citation omitted). "With respect to contract formation, preliminary negotiations do not constitute a binding contract unless the parties have agreed to all material terms." Id. (citation omitted). "A valid contract cannot exist when material terms are lacking or are insufficiently certain and definite." Id. In addition, "[i]n the case of a settlement agreement, a court cannot compel compliance when material terms remain uncertain." Id. (citation omitted). "The court must be able to ascertain what is required of the respective parties." Id. (citation omitted). In May v. Anderson, the Nevada Supreme Court concluded that the release terms of a settlement agreement are material. May, 119 P.3d at 1257-58 (citation omitted).
Where essential terms of a proposal are accepted with qualifications or not accepted at all, there is no agreement. Heffern v. Vernarecci, 544 P.2d 1197, 1198, 92 Nev. 68, (Nev. 1976) (citation omitted); Pravorne v. McLeod, 383 P.2d 855, 79 Nev. 341 (Nev. 1963). "It is the law that when A offers B to enter into a contract on certain terms, and B declines to accept those terms but offers a counter-proposition, the original offer loses its effect, and is thereafter only open to acceptance by B when renewed by A." Pravorne v. McLeod, 383 P.2d 855, 855, 79 Nev. 341, 342 (Nev. 1963) (internal quotation marks and citation omitted).
Here, the offer proposed by Ms. Keyser-Cooper on May 1, 2015, specifically provided that "[t]he $25,000.00 in payments would be presented by a `confession of judgment' which could be executed upon by a Writ of Execution if payments were missed." (Doc. # 95-2 at 1; Ex. 35.) Mr. Pintar's letter purporting to accept the offer on May 21, 2015, states: "By way of this settlement, all claims against Yellow Cab will be dismissed in return for payment as set forth in your letter." (Doc. # 95-4 at 2; Ex. 34 (emphasis added).)
Ms. Keyser-Cooper testified that the inclusion of the term that the $25,000 in payments would be presented by a confession of judgment which could be executed upon by a writ of execution if payments were missed was material because she and her clients wanted an admission of liability from Yellow Cab, and wanted the orders already issued by the court (i.e., the order granting injunctive relief) to remain in place following any settlement. Mr. Pintar argued that he understood the confession of judgment term to equate to a dismissal of all claims.
A confession of judgment is defined as "[a] person's agreeing to the entry of judgment upon the occurrence or nonoccurrence of an event, such as making a payment." Confession of Judgment,
The court notes that Mr. Pintar argued that the May 1 offer did call for a stipulation for dismissal, but a reading of the May 1 offer indicates that the Douds were only agreeing to stipulate to dismiss "the pending appeal presently at the Ninth Circuit." (Doc. # 95-2 at 3.) This is referring to the appeal taken with respect to the order granting the Douds' request for a preliminary injunction. The offer did not convey that the Douds were agreeable to a global stipulation to dismiss the case, which is the term proposed by Mr. Pintar's May 21 communication.
On this additional basis, the court finds that the parties did not enter into an enforceable agreement.
In sum, the court finds that there is no enforceable settlement agreement between the parties resulting from Ms. Keyser-Cooper's May 1, 2015 offer. As a result, Yellow Cab's motion to enforce the settlement agreement (Doc. # 95) is
