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Frederick v. Avantix Laboratories, Inc.

United States District Court, D. Delaware

March 14, 2017

LYNN FREDERICK, Plaintiff,
v.
AVANTIX LABORATORIES, INC., et al., Defendants.

          Lynn Frederick, WiUiamstown, New Jersey, Pro Se Plaintiff.

          Avantix Laboratories, Inc., Linyee Shum, and TDM Pharmaceutical Research, LLC, Newark, Delaware. Pro Se Defendants.

          MEMORANDUM OPINION

          STARK, U.S. District Judge.

         I. INTRODUCTION

         Plaintiff Lynn Frederick ("Plaintiff), who was previously represented by counsel, filed this employment discrimination action in 2007. She now proceeds pro se. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Presently before the Court is Plaintiffs unopposed request to enforce judgment, which is construed as a motion to enforce judgment. (D.I. 110)

         II. BACKGROUND

         On October 13, 2011, the Court was advised that the parties had reached a settlement in this matter. (See D.I. 99) The Court entered a stipulation and order of dismissal on October 14, 2011, which states, "[t]he parties by and through underlying counsel ¶¶ stipulate to the dismissal with prejudice of this civil action with each party to bear their own fees and costs pursuant to the settlement stipulations and releases executed by the parties on or before July 1, 2011." (D.I. 100) Plaintiff is referred to as Releasor in the release and settlement agreement and Releasees include Avantix Laboratories, Inc. ("Avantix"), Linyee Shum ("Shum"), Daphne Shum ("D. Shum"), and TDM Pharmaceutical Research LLC ("TDM Pharmaceutical"). Releasees/Defendants were represented by counsel.

         The confidential release and settlement agreement provides for a $60,000 payment, as follows:

Payment of $25,000 within thirty days of receipt of the fully executed Settlement Agreement.... Payment of $35,000 in monthly installments of $600.00 payable to [Plaintiff], commencing sixty days after receipt of the fully executed Settlement Agreement. The monthly installments shall be paid on the first of each month for twenty four months, except that a balloon payment of $8,400.00 shall be paid on the 12th month and $13,400 on the 24th month. Interest shall not accumulate during the payment period.....Plaintiff has agreed to accept less than $60,000 in full settlement of this matter under certain circumstances. If the aggregate amount of payments made on or before December 31, 2011 is $50,000, plaintiff shall accept same in full settlement of all claims and Plaintiff waives any claim to additional payment. If the aggregate amount of payments made on or before December 31, 2012 is $55,000, plaintiff shall accept same in full settlement of all claims and Plaintiff waives any claim to additional payment.

(D.I. 114 at Ex. A at ¶ 3)

         Defendants made the initial $25,000.00 payment and made fairly regular monthly payments of $600.00 from October 1, 2011 through May 1, 2014, totaling $42,400.00.[1] (D.I. 114 at Ex. C) Defendants did not make either balloon payment. (D.I. 110 at ¶ 7) No payments have been made since May 2014. (D.I. 114 at Ex. C) In January 2015, Plaintiff sent letters to Shum and TDM Pharmaceutical at home and business addresses. (D.I. 110 at ¶ 10) The letter to Shum's home address was returned as "unclaimed unable to forward." (D.I. 114 at Ex. D) Plaintiff received a signed receipt of delivery from TDM Pharmaceutical. (D.I. 110 at ¶ 10) Plaintiffs letter to TDM Pharmaceutical asked for a written response no later than February 15, 2015. (Id. at ¶ 12) TDM Pharmaceutical did not respond to the letter.

         Plaintiff filed her first motion to enforce judgment on June 24, 2015. (D.I. 101) On October 20, 2015, the Court ordered the parties to submit a joint status report. (D.I. 103) Thereafter, the Court was advised by Plaintiffs former attorney and the former attorney for Defendants Avantix and Linyee Shum ("Shum") that they no longer represented Plaintiff and Defendants. (D.I. 104, 105) Former defense counsel advised the Court that, "[a]s a courtesy, our office has forwarded Plaintiffs motion to enforce judgment to Avantix as well as notified Avantix's last known principal, Mr. Shum of the status report date and advised that if they intend to oppose Plaintiffs motion that they seek representation." (D.I .105) Following Plaintiffs March 2016 correspondence with the Court regarding the status of her motion, the Court denied the motion to enforce judgment without prejudice to renew subject to proper service on Defendants at their last known addresses. (D.I. 106, 108) Plaintiff filed a renewed motion to enforce judgment on August 17, 2016, and service was effected upon Shum as the owner of TDM Pharmaceutical Research. (See D.I. 110, 111) To date, Defendants have not responded to Plaintiffs motion.

         III. LEGAL STANDARDS

         Plaintiffs motion is titled as a motion to enforce judgment but it appears that she seeks to enforce the settlement agreement entered into by the parties. A district court has jurisdiction to enforce a settlement agreement entered into by litigants in a case pending before it. See Leonard p. University of Delaware,204 F. Supp. 2d 784, 786 (D. Del. 2002). "An agreement to settle a lawsuit, voluntarily entered into, is binding upon the parties, whether or not made in the presence of the court, and even in the absence of a writing." Green p. John H. Lewis & Co.,436 F.2d 389, 390 (3d Cir. 1970). The validity of settlement ...


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