NOT FOR PUBLICATION

MEMORANDUM & ORDER

CAROL BAGLEY AMON, Chief District Judge.

Plaintiff Iryne Witek, now proceeding pro se, filed this employment discrimination action on February 29, 2012, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq., and 42 U.S.C. §§ 1981, 1983. (D.E. # I, Compl.) More than three years later, resolving this action has proven a Sisyphean task. Witek has been represented by three sets of privately retained counsel in protracted settlement negotiations involving numerous conferences with the Court. Twice, the parties appeared to reach a settlement; both times, Witek reneged on the agreement, creating a conflict of interest that forced two different sets of counsel to withdraw. (See D.E. # 49, 53, 87, 94, 97.) The last apparent settlement yielded a fully decuted settlement agreement, resulting in a stipulation of dismissal that was filed by the parties on August 25, 2014, (D.E. # 79), and entered as an order by this Court dismissing the case on September 4, 2014, (D.E. # 80).

On March 2, 2015, Witek moved to reopen the case1 and asked the Court to appoint pro bono counsel to represent her. (D.E. # 98, 99.) Both motions were referred to the Honorable Viktor V. Pohorelsky, United States Magistrate Judge, for a Report and Recommendation ("R&R"). (D.E. dated Mar. 19, 2015.) Now before the Court is Magistrate Judge Pohorelsky's R&R recommending that both motions be denied. For the reasons stated below, the Court adopts Magistrate Judge Pohorelsky's recommendation that Witek's motion for appointment of counsel be denied, but grants Witek's motion to reopen the case.

BACKGROUND

Discovery was completed in this employment discrimination action in February 2013. (D.E. # 37.) The parties then sought to settle the case with the Court's assistance—a pursuit that, to date, has not proven successful.

I. The Apparent Settlement

On April 24, 2013, Magistrate Judge Pohorelsky conducted what was to become the first of many unsuccessful settlement conferences with the parties. (D.E. # 40.) At that time, Witek was represented by the Law Offices of Anthony J. Colleluori & Associates, PLLC ("Colleluori"). When the parties failed to reach an agreement, defendants opted to seek summary judgment. (D.E. # 41.) That motion was to be fully briefed by November 4, 2013. (D.E. dated July 10, 2013.)

While the summary judgment motion was pending, the parties attended three more settlement conferences with Magistrate Judge Pohorelsky. (See D.E. # 42, 44, 45.) The parties appeared at the last of these conferences on September 3, 2013, believing that a settlement had been reached and intending to memorialize the terms of that agreement (the "apparent settlement") on the record. (See D.E. # 47 at 1; D.E. # 102, Ex. A.) That outcome was forestalled when Witek raised several new issues at the September 3 conference. Nonetheless, the parties remained optimistic that an agreement would soon be formalized and sought an adjournment of the summary judgment briefing calendar accordingly. (See D.E. # 46.)

When further negotiations failed to produce an agreement, defendants moved to enforce the apparent settlement. (D.E. dated Oct. 10, 2013; D.E. dated Nov. 13, 2013.) Colleluori then moved to withdraw rather than take a position adverse to Witek as to whether the apparent settlement was enforceable and sought a stay of proceedings until that motion was decided. (D.E. # 49.) The motions for summary judgment and to enforce the apparent settlement have been held in abeyance ever since and no progress has been made on the merits of this action. (See D.E. dated Dec. 27, 2013; R&R at 2 n. 1.) The Court ultimately permitted Colleluori to withdraw. (D.E. #53.)

II. The Executed Settlement Agreement

Witek next retained and soon discharged (for reasons not made known to the Court) Aaron David Frishberg as substitute counsel. (D.E. # 62, 73; see also R&R at 2.) Witek then obtained new counsel, Jon L. Norinsberg, (D.E. # 70), and settlement negotiations resumed. Two more settlement conferences were conducted by Magistrate Judge Pohorelsky, (D.E. # 77, 78), resulting in the execution of a settlement agreement by the parties on August 22, 2014. (D.E. # 102 at 2 & Ex. B (the "Settlement Agreement" or the "Agreement") at 3.)

The Settlement Agreement provided, in pertinent part:

Importantly for the instant motion to reopen, the Settlement Agreement also contained a provision permitting Witek to revoke the agreement within seven days of its execution (the "revocation period"). (Id. ¶ 7.) The Agreement specified that such revocation would only be effective "if an originally executed written notice or revocation [was] delivered to defendants' counsel on or before 5:00 p.m. on the seventh day after the date of plaintiffs execution of the Settlement Agreement." (Id. ¶ 8.) The Agreement further provided that it would "not be effective and enforceable until the Revocation Period has expired." (Id. By its terms, the Settlement Agreement could thus be revoked by Witek until 5:00 p.m. on August 29, 2014, and the Agreement would not be effective or enforceable until that time. (See id. ¶¶ 7-8.)

III. Witek's Revocation and Post-Revocation Conduct

On August 25, 2014, before the revocation period had expired, the parties filed a stipulation of dismissal, (D.E. # 79), which was ordered by the Court on September 3, 2014, (D.E. # 80). In the intervening period, however, Witek exercised her right to revoke. On August 28, 2014, Witek delivered the fully executed Settlement Agreement to defendants' counsel; stapled to the Agreement was a handwritten revocation notice signed by Witek. (See R&R at 3.) This revocation appears to have gone unnoticed by counsel for both parties.2 (See D.E. # 102 at 2-3.) Although Witek claims to have informed her attorney immediately, (D.E. # 98 at 4), he stated at a conference held several weeks later before Magistrate Judge Pohorelsky that he had no knowledge of the revocation notice, (D.E. # I 02 at 2).3

Despite her revocation, Witek moved to compel enforcement of the Agreement by letter dated September 18, 2014. (D.E. # 81.) Witek specifically sought two items of information purportedly required by the Agreement: (I) confirmation of her resignation date; and (2) a phone number for prospective employers to call when seeking information about her employment. (Id. Defendants objected that these items were not required by the Agreement and, in particular, noted that the Agreement required prospective employers to contact defendants in writing rather than by phone; nonetheless, defendants provided confirmation of Witek's resignation date. (D.E. # 82.) Magistrate Judge Pohorelsky held several subsequent conferences with the aim of resolving Witek's concerns and facilitating enforcement of the Agreement. (D.E. # 83, 85, 88, 89.)

On October 20, 2014, Witek informed the Court for the first time that she had revoked the Agreement—the very agreement she had been seeking to enforce for nearly two months. (D.E. # 84.) When it became clear Witek would stand on that revocation, Norinsberg—like Colleluori before him—was forced to withdraw. (See D.E. # 87, 97.) Subsequent efforts to reach a resolution proved unsuccessful, and Witek filed the instant motions to reopen the case and for appointment of counsel. (D.E. # 98, 99.) The Court referred those motions to Magistrate Judge Pohorelsky for report and recommendation on March 19, 2015. (D.E. dated Mar. 19, 2015.)

IV. Witek's Appeal of the Charging Lien Order

While the instant motions were pending before Magistrate Judge Pohorelsky, this Court adopted in part Magistrate Judge Pohorelsky's recommendation to assess an outstanding charging lien asserted by Colleluori after he withdrew as counsel. (D.E. # 113 ("Charging Lien Order").) Specifically, the Court adopted the recommendation that Colleluori's charging lien be assessed in the quantum meruit amount from any recovery Witek ultimately obtains. (Id. Witek has since appealed the Charging Lien Order to the Court of Appeals for the Second Circuit. (D.E. # 115.)

STANDARD OF REVIEW

When deciding whether to adopt a report and recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). To accept those portions of the R&R to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Jarvis v. N. Am. Globex Fund. L.P., 823 F.Supp.2d 161, 163 (E.D.N.Y. 2011) (internal quotation marks and citation omitted). When specific objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3).

Witek, now proceeding prose, filed a letter objecting to the R&R on April 7, 2015.4 (D.E. # 107 ("Witek Obj.").) Witek was represented by retained counsel from the initiation of this action until she filed the instant motions. Witek is therefore not entitled to any special deference for her conduct throughout the underlying proceedings. The Court has, however, construed the instant motions and related submissions liberally in recognition of Wilek's current pro se status. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). Accordingly, in reviewing Wilek's objections, the Court is mindful that "[t]he objections of parties appearing pro se are generally accorded leniency," Williams v. Woodhull Med. & Mental Health Ctr., 891 F.Supp.2d 301, 310 (E.D.N.Y. 2012) (internal quotation marks and citations omitted), and should be "interpreted to raise the strongest arguments they suggest," Triestman, 470 F.3d at 474 (internal quotation marks and citation omitted). "Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal." Brown v. Smith, No. 09-CV-4522, 2012 WL 511581, at *2 (E.D.N.Y. Feb. 15, 2012) (quoting Pinkney v. Progressive Home Health Servs., No. 06-CV-5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008)). Moreover, even a pro se party may not rely on "new arguments and new evidence raised in objections to a magistrate judge's report and recommendation that were not raised, and thus not considered by the magistrate judge." Grant v. Bradt, No. 10 Civ. 394 (RJS), 2012 WL 3764548, at *4 (S.D.N.Y. Aug. 30, 2012) (internal quotation marks and citation omitted).

Although many ofWitek's objections are not material to the recommendations of the R&R, are contradicted by the record, or raise new facts not presented to Magistrate Judge Pohorelsky, the Court has nonetheless construed Witek's submissions to raise the strongest arguments they suggest and, in an abundance of caution, has reviewed both motions de novo in their entirety. The Court addresses Witek's objections where relevant below.

DISCUSSION

I. Jurisdiction to Resolve the Instant Motions

While the instant motions were pending, Witek appealed this Court's Charging Lien Order. (D.E. # 115.) The Court must consider the jurisdictional implications of that appeal before adjudicating the pending motions to reopen and for appointment of counsel.

"The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). However, the filing of an appeal "only divest[s] the district court ofjurisdiction respecting the questions raised and decided in the order appealed from." N.Y. State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1350 (2d Cir. 1989). Thus, "notwithstanding a pending appeal, a district court retains residual jurisdiction over collateral matters." Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 225 (2d Cir. 2004).

Applying these principles, the Court must determine whether it retains jurisdiction over each of Witek' spending motions. Witek's motion for appointment of counsel is plainly unrelated to the questions raised and decided in the Charging Lien Order that Witek has appealed. Issues related to attorney compensation are generally treated as collateral to the merits. See, e.g., Tancredi, 378 F.3d at 225 (district court retains jurisdiction over matters collateral to a pending appeal, "including claims for attorney's fees"); see also White v. N.H. Dep't of Emp't Sec., 455 U.S. 445, 452 n.14 (1982) (discussing "collateral character of [attorney's fee] issue[s]"). Accordingly, a district court retains jurisdiction over claims concerning attorney's fees while a merits determination is pending on appeal. See Tancredi, 378 F.3d at 225.

The Court sees no reason for a different outcome in the inverse scenario where, as here, the appeal does not implicate the merits and concerns a wholly collateral attorney-compensation issue. The Charging Lien Order presently before the Second Circuit concerns only a collateral issue: the assessment of a charging lien asserted by Witek's former retained counsel based on the fair and reasonable value of services already rendered. By contrast, the present motion asks the Court to appoint new pro bono counsel for Witek. The order appealed from thus raises legal and factual questions distinct from and collateral to the motion for appointment of counsel. This Court therefore retains jurisdiction to resolve that motion.

Witek's motion to reopen, which the Court construes as a Rule 60(b) motion,5 is likewise collateral to the questions raised and decided in the Charging Lien Order. Generally, a district court may entertain and deny a Rule 60(b) motion during the pendency of an appeal, see Fed. R. Civ. P. 62.l(a), but "may grant a [R]ule 60(b) motion after an appeal is taken only ifthe moving party obtains permission from the circuit court," see Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992) (emphasis in original). A pending appeal does not divest the district court of jurisdiction to grant a Rule 60(b) motion that "does not affect those aspects of the case involved in the appeal," however. Reed v. Alexander, No. 05-CV-236-JKS, 2009 WL 2390603, at *1 n.1 (N.D.N.Y. July 31, 2009) (citing Griggs, 459 U.S. at 58).

Witek's motion to reopen does not affect those aspects of the case implicated by the pending appeal. The motion to reopen requires the Court to consider whether the facts alleged by Witek justify the extraordinary relief of setting aside a final judgment. The appeal, which concerns the appropriate assessment of Colleluori's charging lien, requires the Second Circuit to consider only those facts relevant to the quantum meruit value of the services rendered by Colleluori.6 Because that lien attaches only to any recovery Witek ultimately obtains, see N.Y. Jud. Law § 475, it can be assessed separately and apart from a resolution of the merits and the concomitant determination of Witek's actual recovery. As such, the motion to reopen does not affect the questions raised and decided in the order appealed from. The Court therefore concludes that it retains jurisdiction to adjudicate Witek's Rule 60(b) motion despite Witek's appeal of the Charging Lien Order.7 See Alexander, 2009 WL 2390603, at *1 n.1.

II. Motion to Reopen

Witek asks the Court to reopen this action, which was closed pursuant to a stipulation of dismissal entered into by the parties. Witek argues that her case should be reopened because after the stipulation was filed, she validly revoked the Settlement Agreement by delivering a written notice of revocation to defendants' counsel within the period allowed by the Agreement.

A party may seek relief from a stipulation of dismissal under Federal Rule of Civil Procedure 60(b). See Laurenzano, 837 F. Supp. at 515. Rule 60(b) provides that a party may seek relief from a final judgment based on the following grounds:

Fed. R. Civ. P. 60(b). "Motions under [R]ule 60(b) are addressed to the sound discretion of the. [district] court and are generally granted only upon a showing of exceptional circumstances." Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990). Moreover, a party seeking relief from "an agreed-upon disposition"—like the stipulation of dismissal Witek now challenges—faces an even "heavier" "burden to obtain Rule 60(b) relief." Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986).

Construed liberally, Witek's submissions raise two potential grounds for relief from the stipulation of dismissal: (1) counsel for both parties erred by prematurely filing the stipulation of dismissal before the revocation period had expired; and (2) Witek validly revoked the Settlement Agreement in the manner and within the time period prescribed by its terms; accordingly, no enforceable agreement resolving this action was ever reached by the parties. The Court agrees with Magistrate Judge Pohorelsky that the only clauses of Rule 60(b) that even arguably apply to these claims are Rules 60(b)(1) and 60(b)(6). Magistrate Judge Pohorelsky concluded that Witek is likely entitled to the relief she seeks under both provisions because she validly revoked the Settlement Agreement. Nonetheless, Magistrate Judge Pohorelsky recommended that the Court decline to reopen this action for two reasons: (1) Witek effectively abandoned her revocation by seeking to enforce the Settlement Agreement for nearly two months after her purported revocation; and (2) reopening this action would reward Witek's bad faith conduct and unnecessarily prolong the already protracted proceedings in this action. (R&R at 6-7.)

Although the Court shares Magistrate Judge Pohorelsky's concerns, the Court regretfully concludes that the case must be reopened because the parties never reached an enforceable settlement agreement. "Settlement agreements are contracts and must therefore be construed according to general principles of contract law." Red Ball Interior Demolition Corn. v. Palmadessa, 173 F.3d 481, 484 (2d Cir. 1999). "New York follows the common law rule that, `[i]n interpreting a contract, the intent of the parties governs.'"8 See PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1199 (2d Cir. 1996) (alteration in the original) (quoting Am. Express Bank Ltd. v. Uniroyal, Inc., 562 N.Y.S.2d 613, 614 (!st Dep't 1990)). Accordingly, to effectuate the intent of the parties, "words and phrases are given their plain meaning." Id. (internal quotation marks and citations omitted).

Here, the Settlement Agreement contains a provision explicitly providing Witek with "seven (7) days following her execution to revoke [the agreement]" by delivering "an originally executed written notice or revocation . . . to defendants' counsel." (Settlement Agreement ¶¶ 7-8.) The Agreement further specified that it would "not be effective and enforceable until the Revocation Period has expired." (Id. These provisions plainly evince the parties' intent that no enforceable agreement would arise if Witek tendered a notice of revocation in compliance with these provisions. Witek did so by delivering a written notice of revocation to defendants' counsel within seven days of the Agreement's execution; accordingly, by its very terms, the Agreement never became an enforceable contract.

Although Magistrate Judge Pohorelsky likewise concluded that Witek had validly revoked the Agreement, he reasoned that she had effectively abandoned that revocation through her postrevocation conduct: namely, by seeking to enforce the Agreement. (R&R at 6-7.) Despite this result's intuitive appeal, the Court cannot discern a legal basis supporting this conclusion. The Court has analyzed, for example, whether Witek's post-revocation conduct may have operated as a ratification of the Agreement.9 The Court has also considered whether promissory or equitable estoppel might bar Witek from now standing on her revocation.10 But none of these doctrines squarely apply to the facts here, and the Court is hesitant to strain these principles of contract and quasi-contract law to bind a pro se litigant to an unenforceable agreement she wishes to denounce, particularly where doing so vitiates the intent of the parties to that agreement.

Moreover, in her objections, Witek attempts to provide some context for her postrevocation conduct. Witek explains that she did not realize she needed to notify the Court about her revocation because (1) by its terms, the Settlement Agreement only required that the revocation notice be delivered to defendants' counsel, and (2) Witek believed that only her counsel could contact the Court. Moreover, Witek claims that she did not know her case had been dismissed and therefore did not seek to reopen the case sooner. (Witek Obj. at 3.) These assertions fall far short of justifying Witek's conduct, particularly the fact that she affirmatively sought to enforce the Agreement she had already revoked, engaging the Court, her counsel, and defense counsel in two months of unnecessary and contentious litigation. Indeed, the Court finds Witek's objections to be somewhat disingenuous. But the Court can imagine how a represented litigant might not be aware of the precise procedural posture of her case and might hesitate to contact the Court directly. The Court is therefore reluctant to construe Witek's post-revocation conduct—indefensible as it may be—as giving rise ex post facto to an enforceable agreement.

The Court therefore determines that no enforceable settlement agreement was entered into by the parties, a conclusion which now compels the Court to grant Witek's motion to reopen. Review of the record makes plain that the parties filed the stipulation of dismissal with the mistaken understanding that an enforceable settlement agreement had been reached. Having concluded that no such agreement was effectuated, the Court will not enforce a stipulation of dismissal unquestionably entered into and filed by counsel for both parties based on a mutual mistake of fact. See Fed. R. Civ. P. 60(b)(1)(district court may relieve party from a final judgment because of "mistake, inadvertence, surprise or excusable neglect"); see also Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986) ("Relief from a counsel's error is normally sought pursuant to Rule 60(b)(1). . . .").

The Court is mindful that, ordinarily, "dissatisfaction in hindsight with choices deliberately made by counsel is not grounds for finding the mistake, inadvertence, surprise or excusable neglect necessary to justify Rule 60(b)(1) relief." Nemaizer, 793 F.2d at 62. But this is not a case where Witek's attorney simply "fail[ed] to evaluate carefully the legal consequences of a chosen course of action." Id. Here, Witek's attorney lacked the information—known only to his client—that would have enabled him to even predict, let alone analyze the legal consequences of, the subsequent developments in this action. Norinsberg executed a stipulation of dismissal because a fully executed settlement agreement had been exchanged by the parties; nothing in the record suggests that Norinsberg had any indication at that time that Witek would later revoke.11

Of even more concern is the possibility that, given Witek's position that a settlement was not reached-a conclusion with which the Court reluctantly agrees—defendants could conceivably refuse to pay Witek the agreed-upon settlement amount. Were the Court to decline to reopen, this action could therefore result in dismissal of Witek's claims with prejudice, without any recovery or recourse for her and without an adverse adjudication on the merits. The need to avoid such an unjust outcome leads the Court to conclude that "there are extraordinary circumstances justifying relief' from the final judgment in this case. Nemaizer, 793 F.2d at 63 (construing Fed. R. Civ. P. 60(b)(6)).

The Court is troubled by this result, which would appear to reward Witek's vexatious and dilatory conduct throughout the course of this litigation—conduct that arguably evidences a badfaith approach in her dealings with both her counsel and defendants. The Court is also conscious that reopening the case is not entirely fair to defendants, who have exercised good-faith efforts to settle this litigation for more than three years and who continue to incur the costs of Witek's illusory commitments to resolution. Moreover, the Court, like Magistrate Judge Pohorelsky, has no confidence that reopening this action will facilitate a just resolution on the merits. Nonetheless, the legal posture of this case requires that it be reopened. The Court therefore grants Witek's motion to reopen. When litigation resumes, Witek will thus confront either reopened settlement negotiations, revived summary judgment briefing, or a renewed motion to enforce an earlier apparent settlement.

III. Motion for the Appointment of Counsel

There is no right to the appointment of pro bono counsel in civil matters. See Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). "Rather, the district court has the discretion to appoint counsel." Id. Magistrate Judge Pohorelsky recommended that the Court exercise its discretion to deny Witek's request, primarily because she has proven unable and unwilling to work with or accept the advice of counsel. (See R&R at 8.) After reviewing the request de novo, the Court sees no reason to exercise its discretion differently.

"Volunteer lawyer time is a precious commodity." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). And the Court is mindful that "every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause. We cannot afford that waste." Id. The Court will not waste this district's scarce pro bono resources on a client who will not cooperate with or benefit from representation by counsel. See Barnes v. Alves, 10 F.Supp.3d 382, 385 (W.D.N.Y. 2014) (declining to appoint civil pro bono counsel to plaintiff whose "prior treatment of . . . counsel led to the withdrawal of that counsel"); Davidson v. Scully, No. 83 Civ. 2025 (DNE), 1984 WL 1360, at •4 (S.D.N.Y. Dec. 18, 1984) (declining to appoint civil pro bono counsel to plaintiff who "could not cooperate with" prior counsel). The Court agrees with. Magistrate Judge Pohorelsky that Witek has proven unwilling and unable to work with counsel: she has privately retained three different sets of counsel in this action and has twice forced counsel to withdraw by creating a conflict of interest and due to an irrevocable breakdown of the attorney-client relationship. Accordingly, the Court adopts the recommendation of the R&R and denies Witek's motion for the appointment of pro bono counsel.

CONCLUSION

For the reasons stated above, the Court grants Witek's motion to reopen, but declines to appoint pro bono counsel to Witek. The Clerk of Court is directed to reopen the case.

SO ORDERED.