Filed: Nov. 15, 2018
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1091 _ C. G. B. v. AIDA SANTA LUCIA; VAROUJAN KHOROZIAN; KYLE KHOROZIAN; DEREK KHOROZIAN, Defendant-Appellants _ Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-15-cv-03401) District Judge: Hon. Susan D. Wigenton _ Submitted Under Third Circuit L.A.R. 34.1(a) November 14, 2018 _ Before: GREENAWAY, JR., SHWARTZ, and BIBAS, Circuit Judges. (Filed: November 15, 2018) _ OPINION * _
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1091 _ C. G. B. v. AIDA SANTA LUCIA; VAROUJAN KHOROZIAN; KYLE KHOROZIAN; DEREK KHOROZIAN, Defendant-Appellants _ Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-15-cv-03401) District Judge: Hon. Susan D. Wigenton _ Submitted Under Third Circuit L.A.R. 34.1(a) November 14, 2018 _ Before: GREENAWAY, JR., SHWARTZ, and BIBAS, Circuit Judges. (Filed: November 15, 2018) _ OPINION * _ *..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-1091
______________
C. G. B.
v.
AIDA SANTA LUCIA;
VAROUJAN KHOROZIAN;
KYLE KHOROZIAN;
DEREK KHOROZIAN,
Defendant-Appellants
______________
Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-15-cv-03401)
District Judge: Hon. Susan D. Wigenton
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 14, 2018
______________
Before: GREENAWAY, JR., SHWARTZ, and BIBAS, Circuit Judges.
(Filed: November 15, 2018)
______________
OPINION ∗
______________
∗
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Defendants Aida Santa Lucia, Varoujan Khorozian, Kyle Khorozian, and Derek
Khorozian (collectively, “Defendants”) appeal the District Court’s order (1) denying their
third request for a continuance of an evidentiary hearing to resolve an allegation that
Plaintiff C.G.B. breached a settlement agreement and (2) granting C.G.B.’s motion to
enforce the settlement agreement and denying Defendants’ motion to rescind or reform it.
For the reasons that follow, we will affirm.
I
C.G.B. sued Defendants for violations of the Victims of Trafficking and Violence
Protection Act of 2000, see 18 U.S.C. §§ 1589, 1595, and related state law claims.
C.G.B. alleged that she was a former teacher in Cameroon who was trafficked into the
United States to perform forced labor. The parties eventually settled the dispute.
According to C.G.B., however, Defendants later attempted to add new material terms to
the settlement agreement. 1 Consequently, C.G.B. moved to enforce the settlement
agreement.
In response, Defendants asserted that C.G.B. breached the confidentiality clause of
the settlement agreement by disclosing the settlement amount, and that this breach
warranted either the agreement’s rescission or reformation. In support of their cross-
1
In particular, Defendants sought to add provisions (1) requiring C.G.B. to sign a
French translation of the agreement; (2) prohibiting C.G.B. from providing testimony in
other cases against Defendants; (3) allowing “all parties” to use discovery produced in
this lawsuit; and (4) requiring that C.G.B. voluntarily dismiss this lawsuit before
receiving the settlement checks. ECF No. 98 at 1-2.
2
motion to rescind or reform the settlement agreement, Defendants included an affidavit
from a Cameroonian government official, Emmanuel Anyang Asongwed, who stated that
the Cameroonian government learned about the claims in the case and the resulting
settlement.
On October 3, 2017, the Magistrate Judge ordered the parties to appear for a
hearing on October 13, 2017, so Defendants could present evidence of C.G.B.’s
purported breach of the settlement agreement. Two days later, certain Defendants
requested a continuance of the October 13, 2017 hearing. Defendants explained that
witnesses from Cameroon needed time to obtain their visas and travel to the United States
for the hearing. The Magistrate Judge denied the request, observing that Defendants’
proposed witnesses lacked “first-hand personal knowledge of [C.G.B.’s] alleged
disclosure of the confidential terms of the parties’ settlement.” ECF No. 145. In
response, Defendants represented that two Cameroonian nationals, Asongwed and
Nicholas Atangana, had “direct knowledge” of C.G.B.’s disclosure of confidential
information. App. 205. The Magistrate Judge then granted the request, adjourned the
hearing until October 16, 2017, and informed Defendants that the Court would “agree to
take [the Cameroonian witnesses’] testimony via Skype or some other remote means.”
ECF No. 176 at 13.
Thereafter, Defendants requested a second continuance based on the witnesses’
inability to access videoconferencing equipment or to secure visas in time to attend the
hearing. The Magistrate Judge continued the evidentiary hearing once more to October
26, 2017. Cognizant of the potential technological issues of remote testimony, the
3
Magistrate Judge noted that the continuance “should give plenty of time to arrange to get
on a webcam on a laptop . . . .” ECF No. 177 at 11.
At the start of the October 26, 2017 evidentiary hearing, Defendants informed the
Court that Asongwed was present to testify, but they requested a third continuance so that
Atangana could testify at a later date. According to Defendants, Atangana could not
testify remotely by videoconference because he went to the United States Embassy in
Cameroon to obtain a visa. The Magistrate Judge denied the request because Defendants
provided “no reason for Mr. Atangana to make himself unavailable to testify remotely at
the hearing in order to seek a visa to travel to the United States to testify in person.”
App. 033.
Defendants then presented Asongwed’s testimony. Asongwed testified that
C.G.B. called him, years after the only time they met, to discuss the money she received
from her settlement with Defendants. When the Court asked if he knew that it was
C.G.B. who called him, Asongwed testified that he was uncertain, but when questioned
by Defendants’ counsel, he said that the call was with C.G.B. Asongwed was also
questioned about how C.G.B. came to contact him and confronted with contradictions
between his testimony and his affidavit. No other evidence was offered to support
Defendants’ assertion that C.G.B. disclosed confidential information about the
settlement.
The Magistrate Judge rejected Asongwed’s testimony. The Magistrate Judge
found, among other things, that Asongwed was not credible because his testimony was
inconsistent with his affidavit, he did not provide a reason as to why C.G.B. called him or
4
how she obtained his telephone number, he could not identify C.G.B. as the caller with
certainty, his testimony was evasive, and Defendants and their agents “influenced
improperly” his testimony. App. 031. As a result, the Magistrate Judge recommended
granting C.G.B.’s motion to enforce the settlement agreement and denying Defendants’
motion to rescind or reform it.
The District Court adopted the Magistrate Judge’s Report and Recommendation.
Defendants appeal.
II 2
Defendants argue that the District Court erred in (1) denying Defendants’ third
request for a continuance; and (2) denying their cross-motion for rescission or
reformation of the settlement agreement and granting C.G.B.’s motion to enforce it. We
consider each argument in turn.
A
“A trial court’s decision to deny a continuance will only be reversed on a showing
of abuse of discretion.” Paullet v. Howard, 634 F.2d 117, 119 (3d Cir. 1980). Indeed,
“[w]e will not interfere with a trial court’s control of its docket except upon the clearest
showing that the procedures have resulted in actual and substantial prejudice to the
complaining litigant.” In re Fine Paper Antitrust Litig.,
685 F.2d 810, 817 (3d Cir. 1982)
(internal quotation marks and citation omitted).
2
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291.
5
Defendants sought a third continuance so that Atangana could appear in person or
by videoconference to testify. The Magistrate Judge had previously granted two
continuances, which gave Defendants nearly two additional weeks to coordinate their
witnesses’ appearances or, alternatively, present such testimony by videoconference.
Thus, Defendants had sufficient time and means to adduce the testimony.
Defendants sought a third continuance at the start of the October 26, 2017 hearing,
explaining that Atangana decided to visit the embassy to obtain his visa rather than make
himself available to appear by video. Defendants gave “no reason” why Atangana could
not testify by videoconference as permitted by the Magistrate Judge, App. 033, and any
harm Defendants suffered from his absence was based on his decision to not participate
remotely. Accordingly, the Magistrate Judge acted well within her discretion in denying
the last-minute request for a third continuance.
B
We next examine the order granting C.G.B.’s motion to enforce the settlement
agreement and denying Defendants’ cross-motion to rescind or reform it. In reviewing
the enforcement of a settlement agreement, we evaluate the district court’s factual
findings for clear error, Tiernan v. Devoe, 923 F.2d 1024, 1031 n.5 (3d Cir. 1991); Fed.
R. Civ. P. 52(a)(6) (“Findings of fact, whether based on oral or other evidence, must not
be set aside unless clearly erroneous, and the reviewing court must give due regard to the
trial court’s opportunity to judge the witnesses’ credibility”), and we review the court’s
legal conclusions de novo, Covington v. Cont’l Gen. Tire, Inc.,
381 F.3d 216, 218 (3d
Cir. 2004).
6
Defendants’ only argument on appeal is that their witness, Asongwed, testified to
C.G.B.’s discussion of the settlement amount and that C.G.B. provided no evidence to the
contrary. This argument fails for two related reasons. First, the Magistrate Judge found
that Asongwed’s testimony was not credible. “[A]ssessments of witness credibility . . .
are wrapped up in evaluations of demeanor that a trial judge is in a better position to
decide,” and we defer to such assessments unless there is clear error. United States v.
Brown, 631 F.3d 638, 643 (3d Cir. 2011). The Magistrate Judge’s negative views about
Asongwed’s credibility were well supported. For example, Asongwed first said that
C.G.B. called him to discuss the settlement amount, but when the Magistrate Judge
pressed him for further details, he said, “I will not say with certainty” that it was C.G.B.
on the phone. ECF No. 209 at 20. Thus, the Magistrate Judge had a basis to conclude
that Defendants produced no credible evidence that C.G.B. disclosed the settlement
amount to Asongwed or anyone else. Additional support for this conclusion comes from
Asongwed’s affidavit, which stated that the Government of Cameroon “came to learn of
the settlement of a lawsuit . . . and of the claims that [C.G.B.] made” in March 2017, but
made no mention of any contact with C.G.B. ECF No. 102-3 at 2. Furthermore, the
Magistrate Judge noted problems with Asongwed’s demeanor and equivocation when
testifying. Based on these factually supported credibility determinations, the decision to
discount Asongwed’s testimony was not clear error.
Second, in the absence of any credible evidence that C.G.B. breached the
confidentiality clause of the settlement agreement, it was not error for the District Court
to grant C.G.B.’s motion to enforce the settlement agreement and deny Defendants’
7
motion to rescind or reform it. Defendants had the burden of providing “clear and
convincing proof” that the agreement should be rescinded. 3 Nolan ex rel. Nolan v. Lee
Ho, 577 A.2d 143, 146 (N.J. 1990) (internal quotation marks omitted). Defendants
sought to rescind or reform the agreement because C.G.B. allegedly breached the
agreement by discussing its monetary terms. Because it was not error for the District
Court to discredit the only evidence adduced on this point, and Defendants provided no
other evidence to support their request for relief, they did not make the requisite showing
to justify rescission or reformation. See Brundage v. Estate of Carambio,
951 A.2d 947,
961-62 (N.J. 2008) (explaining New Jersey’s policy in favor of settlements and that
courts should honor settlements “absent compelling circumstances.”) (quoting
Nolan, 577
A.2d at 472)). Accordingly, the District Court appropriately granted C.G.B.’s motion to
enforce the settlement agreement and denied Defendants’ motion to rescind or reform it.
III
For the foregoing reasons, we will affirm.
3
The parties agree that New Jersey contract law governs the dispute.
8
