10-192-cv
Kaczmarczyk v. Acme Contracting LLC

                             UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after
January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this
court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party
must cite either the Federal Appendix or an electronic database (with the notation “summary order”).
A party citing a summary order must serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 22nd day of February, two thousand eleven.

PRESENT:

        JOSÉ A. CABRANES,
        ROSEMARY S. POOLER,
        DENNY CHIN,
                     Circuit Judges,

---------------------------------------------------x
DARIUSZ KACZMARCYSK, on behalf of himself and others similarly situated,

                Plaintiff-Appellee,

                -v.-                                                          No. 10-192-cv

RONALD BYRON DUTTON,

                Defendant-Appellant,

ACME CONTRACTING LLC, PILLAR CONTRACTING LTD., RYSZARD
LISIEWICZ,

           Defendants.
----------------------------------------------------

FOR DEFENDANT-APPELLANT:                       Ronald Dutton, pro se, Staten Island, NY.

FOR PLAINTIFF-APPELLEE:                        Robert Wisniewski, New York, NY.

       Appeal from November 3 and November 24, 2009, orders of the United States District
Court for the Eastern District of New York (Viktor V. Pohorelsky, Magistrate Judge).


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        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the orders of the District Court be REVERSED and REMANDED for
further proceedings.

        Defendant-Appellant Ronald Dutton, pro se, appeals from a November 3, 2009 order
enforcing a settlement agreement and a November 24, 2009 order denying Dutton’s timely motion
for reconsideration. The sole issue on appeal is whether the Magistrate Judge erred in concluding
that the parties had reached an enforceable settlement agreement as of their conference before the
Court in July 2008. We assume the parties’ familiarity with the underlying facts, procedural history
of the case, and issues on appeal.

         We review the District Court’s factual findings, including whether an enforceable
settlement agreement exists, for clear error. Omega Eng'g, Inc. v. Omega, S.A., 

, 443 (2d
Cir. 2005). While the question of whether New York or federal common law determines whether
parties have reached a settlement is an open question in our Circuit, we need not decide that
question here because “there is no material difference between the applicable state law or federal
common law standard.” Ciaramella v. Reader’s Digest Ass’n, Inc., 

, 322 (2d Cir. 1997); see
also Jim Bouton Corp. v. William Wrigley Jr. Co., 

, 1081 (2d Cir. 1990) (describing the
New York rule of contract formation as “generally accepted”).

         Dutton contends that the parties did not intend to be bound by the settlement agreement
represented to the Magistrate Judge in the absence of a writing. We agree. “Parties who do not
intend to be bound until the agreement is reduced to a signed writing are not bound until that
time.” Powell v. Omnicom, 

, 129 (2d Cir. 2007) (citing 

). It is
well established that in determining whether the parties intended to be bound in the absence of a
writing, this Court will consider “(1) whether there has been an express reservation of the right not
to be bound in the absence of a writing; (2) whether there has been partial performance of the
contract; (3) whether all of the terms of the alleged contract have been agreed upon; and (4)
whether the agreement at issue is the type of contract that is usually committed to writing.” Winston
v. Mediafare Entm’t Corp., 

, 80 (2d Cir. 1985); see also 

. While
“[n]o single factor is decisive,” 

, where “there is a writing between the
parties showing that [one party] did not intend to be bound . . . a court ‘need look no further than
the first factor.’” RKG Holdings, Inc. v. Simon, 

, 901 (2d. Cir. 1999) (quoting Arcadian
Phosphates, Inc. v. Arcadian Corp., 

, 75 (2d Cir. 1984)).

        After a de novo review of the record on appeal, we conclude that the first Winston factor
militates strongly in Dutton’s favor. Like the settlement agreement in Ciaramella, the proposed
settlement agreement provides that “[t]his agreement is effective when it has been fully executed


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by all parties.” See 

(“the agreement states, ‘[t]his Settlement Agreement
and General Release shall not become effective (‘the Effective Date’) until it is signed by Mr.
Ciaramella, Davis & Eisenberg, and Reader’s Digest.’”). The District Court concluded that this
clause merely indicates “when the parties’ contractual obligations commerce, rather than whether
an enforceable agreement had been reached.” Such a reading, however, was squarely rejected in
Ciaramella; the conclusion that “wording in a settlement agreement that place[s] great significance
on the execution date evince[s] an intent not to create a binding settlement until some formal date
of execution” is equally applicable here. 

the contract in Ciaramella, the presence
of a merger clause “is persuasive evidence that the parties did not intend to be bound prior to the
execution of a written agreement.” 

on Appeal, Doc. 87-5, at 10 (“[t]his
Agreement contains and constitutes the entire understanding and agreement of the parties and
supersedes and cancels all previous negotiations, agreements, commitments and writings in
connection therewith”) with 

(“[t]his Settlement Agreement and General
Release constitutes the complete understanding between the parties, may not be changed orally
and supersedes any and all prior agreements between the parties”).

        Because we conclude that the Magistrate Judge’s effort to distinguish Ciaramella was
unpersuasive with regard to the question of whether the proposed settlement agreement suggests
that the parties intended to bind themselves until the settlement had been signed, we conclude that
the District Court erred in determining that the settlement agreement should be enforced.
“[W]hen a party gives forthright, reasonable signals that it means to be bound only by a written
agreement, courts should not frustrate that intent.” R.G. Group, Inc. V. Horn & Hardart Co., 

, 75 (2d Cir. 1984).

                                         CONCLUSION

        Having considered Dutton’s arguments on appeal, for the reasons stated above the District
Court’s order of November 3, 2009, enforcing the settlement agreement is REVERSED and
REMANDED for further proceedings.

                                               FOR THE COURT
                                               Catherine O’Hagan Wolfe, Clerk




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