Case 1:21-cv-00349-RP Document 64 Filed 03/13/23 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`ISAIAH SMITH, ON BEHALF OF
`HIMSELF AND ALL OTHERS
`SIMILARLY SITUATED,
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`Plaintiff,
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`v.
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`CIVIL ACTION NO. 1:21-CV-00349-LY
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`§
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`§
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`DEFENDANT’S REPLY IN SUPPORT OF MOTION
`TO ENFORCE SETTLEMENT AGREEMENT AND
`REQUEST FOR SANCTIONS AGAINST PLAINTIFF ISAIAH SMITH
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`MV TRANSPORTATION, INC.,
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`Defendant.
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`Defendant MV Transportation, Inc. (“Defendant”) files this Reply in Support of
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`Defendant’s Motion to Enforce Settlement Agreement and Request for Sanctions (the “Reply”)
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`and would respectfully show the Court as follows:
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`I.
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`INTRODUCTION
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`Plaintiff Isaiah Smith (“Smith”) and Opt-In Plaintiffs Mark Adam, Collette Graham,
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`Barbara Nash, Leslie Smith, Steven Laureano, and Lori Boykin (the “Opt-In Plaintiffs”)
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`(collectively, “Plaintiffs”), by and through their counsel of record, continue to delay the resolution
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`of this case that settled in June 2022. Indeed, Plaintiffs’ Amended Response to Defendant’s Motion
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`to Enforce Settlement Agreement (the “Amended Response”) does nothing but mislead this Court
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`as to the appropriate standard to be applied in disputes such as this by wholly ignoring applicable
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`Fifth Circuit authority and instead tries to divert this Court’s attention to a line of inapplicable
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`cases out of the Southern and Western Districts of New York to convince the Court that it should
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`not enforce the Settlement Agreement the parties agreed to long ago. Moreover, Plaintiffs rely on
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`DEFENDANT’S REPLY IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT
`AND REQUEST FOR SANCTIONS – PAGE 1
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`Case 1:21-cv-00349-RP Document 64 Filed 03/13/23 Page 2 of 9
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`evidence submitted in a filing that has been ordered as stricken from the record; therefore,
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`Plaintiffs, in effect, have not presented any evidence to refute that the parties’ agreement to settle
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`this matter. Plaintiffs cannot overcome the fact that Smith had the authority to settle this case, and
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`settle it he did.
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`II.
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`REPLY
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`A.
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`The Court Should Strike Plaintiffs’ Amended Response.
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`On February 21, 2023, the Court granted Defendant’s Motion to Strike Plaintiffs’ Response
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`to Defendant’s Motion to Enforce Settlement Agreement and ordered the Clerk of Court to strike
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`Plaintiffs’ Response (Dkt. 38) from the record. The Court allowed Plaintiffs to file a revised
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`response that complies with the Local Rules, and Plaintiffs filed the Amended Response on March
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`6, 2023, which is basically a shorter version of the original brief submitted. However, while the
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`Plaintiffs’ filing comports with the page limitations set out in the Local Rules, Plaintiffs
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`continually refer back to the struck filing for their evidence to support their arguments.1 In one
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`instance, Plaintiffs even attempt to expand their legal argument to include citations that were
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`necessarily cut to fit within the Court’s Local Rules.2 The Court should strike Plaintiffs’ Amended
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`Response as it relies on evidence that is no longer contained in the record, in effect presenting no
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`evidence to the Court as to why it should deny Defendant’s Motion to Enforce Settlement
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`Agreement.
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`B.
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`Smith Entered into a Binding Settlement That is Enforceable by Order of this Court.
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`To the extent the Court does not strike the Amended Response, the Response still cannot
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`establish that Smith and the Opt-In Plaintiffs did not enter into a binding settlement agreement.
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`1 See Dkt. 61, p. 5, n. 18; p. 6, n. 20-25; p. 7, n. 26-27; p. 8, n. 29-34; p. 9, n. 36-38; p. 10, n. 40-41; p. 12, n. 50-54;
`p. 13, n. 55-57; p. 15, n. 68-69; p. 16, n. 72; p. 17, n. 79; and p. 20.
`2 See Dkt. 61, p. 1, n. 2.
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`DEFENDANT’S REPLY IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT
`AND REQUEST FOR SANCTIONS – PAGE 2
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`Case 1:21-cv-00349-RP Document 64 Filed 03/13/23 Page 3 of 9
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`Smith attempts to create a smokescreen and argues a multitude of reasons why the Court should
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`not enforce the Settlement Agreement. However, each of these arguments is easily dispensed. First,
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`Smith argues that the Settlement Agreement is not enforceable simply because Smith did not sign
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`it. Smith misleads the Court by citing almost exclusively to cases out of the Southern and Western
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`District of New York.3 But those cases are not the law here; in the Fifth Circuit, courts frequently
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`enforce settlement agreements where the plaintiff has refused to sign the formal document.4 A
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`party who changes his mind when presented with the settlement documents remains bound by the
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`terms of the agreement.5 Smith’s misplaced reliance on other jurisdiction’s law should not be
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`persuasive.
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`Second and third, Smith incredulously argues that the terms of the Settlement Agreement
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`are “too complex,” relying again on case law outside this jurisdiction,6 and this is somehow
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`evidence that the parties did not intend to settle. Setting aside the fact that this argument makes no
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`sense, it is demonstrably false. The terms of the Settlement Agreement, as recognized by Smith’s
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`counsel, are standard in every FLSA dispute; there was nothing complex or difficult about it.7
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`Regardless, even if the terms of the Settlement Agreement were “complex,” it would not make a
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`difference here. The formal document which Defendant transmitted to Smith’s counsel for
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`signature was merely a memorialization of the agreement that was made by email.8 Smith’s
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`attempt to cite to Texas state case law requiring a signature ignores that federal law controls in this
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`3 See Dkt. 61, p. 1.
`4 See, e.g., Daftary v. Metro Life Ins. Co., 136 F.3d 137 (5th Cir. 1998) (reported in full, Daftary v. Metro. Life Ins.
`Co., 1998 U.S. App. LEXIS 40789 (5th Cir. Jan. 12, 1998)) (enforcing settlement agreement where the plaintiff
`refused to sign); Weaver v. World Fin. Corp., Civil Action No. 3:09-CV-1124-G, 2010 WL 1904561, at *6 (N.D. Tex.
`May 12, 2010) (same); Fields v. SBC Communs., A-11-CV-1022-AWA, 2014 WL 2765687 (W.D. Tex. June 18,
`2014) (same); Lee v. Gulf Coast Blood Ctr., Civil Action No. H-19-4315, 2020 WL 4700896 (S.D. Tex. Aug. 13,
`2020) (enforcing settlement agreement of plaintiff’s FLSA lawsuit).
`5 Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207, 1209 (5th Cir. 1981).
`6 See Dkt. 61, p. 2.
`7 See July 21, 2022, email from D. Welmaker to I. Smith, attached hereto as Exhibit 1.
`8 See June 17, 2022, email from D. Welmaker to R. Friedman, Ex. A to Def.’s Motion to Enforce (Dkt. 22).
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`DEFENDANT’S REPLY IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT
`AND REQUEST FOR SANCTIONS – PAGE 3
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`Case 1:21-cv-00349-RP Document 64 Filed 03/13/23 Page 4 of 9
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`case, as the claims derive from federal law. In other words, because Smith’s claims concern alleged
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`violations of the Fair Labor Standards Act, a federal statute, the Court must look to federal law to
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`determine whether the settlement agreement is enforceable or valid, and the fact that Smith did not
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`sign the settlement agreement does not mean he is not bound by it.9
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`Fourth, Smith claims that the material terms were not actually agreed upon, therefore, the
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`Court cannot enforce the Settlement Agreement. However, Smith ignores that on June 29, 2022,
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`he was ready to “sign the papers.”10 Smith had clearly authorized Mr. Welmaker to fully resolve
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`the claims, and the remaining terms in the Settlement Agreement were not material as he was ready
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`to execute the agreement as of that date. Moreover, the terms Smith disputes have actually been
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`agreed upon or are not material:
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`Global Settlement
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`Agreed Upon
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`Eligibility for
`Rehire
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`Not
`Material/Agreed
`Upon
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`Smith indeed had the authority to accept a global sum
`to settle all of the Plaintiffs’ claims by way of the
`authority granted to him in the Consents to Join. Smith
`clearly understood that he was settling all Plaintiffs’
`claims when he acknowledged Mr. Welmaker’s
`clarification of the amount Smith would receive from
`the settlement.11
`As Smith admits, his concerns were not whether he
`was actually eligible to be rehired by Defendant, but
`whether future employers might find out he was
`ineligible for rehire.12 It is therefore not material.
`Regardless, Smith proposed neutral
`reference
`language, which Defendant accepted.13
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`9 BP Exploration & Prod. v. Johnson, 538 F. App’x 438, 439 (5th Cir. 2013) (citing Mid-S Towing Co. v. Har-Win,
`Inc., 733 F.2d 386, 389 (5th Cir. 1984)); Bowers v. Abundant Home Health, LLC, No. 3:16-cv-1314-C, 2021 WL
`706783, at *9 (N.D. Tex. Jan. 25, 2021).
`10 See June 29, 2022, email from I. Smith to D. Welmaker, attached hereto as Exhibit 2.
`11 See id.
`12 See Dkt. 61, p. 6 (This term “was a vitally important term” to Smith because he “believed that Defendant had
`wrongfully classified him as being ‘ineligible for rehire’ (which Smith believes will hinder his future employment
`prospects)….”).
`13 Compare August 8, 2022, email from D. Welmaker to I. Smith, attached hereto as Exhibit 3, and August 8, 2022,
`email from R. Friedman to D. Welmaker, which Defendant will make available for the Court’s in camera inspection;
`see Ex. B to Def.’s Motion to Enforce (Dkt. 22), Section 6.4; see also Lee, 2020 WL 4700896, at *16 (granting motion
`to enforce where the defendant accepted plaintiff’s counterproposal for neutral reference provision).
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`DEFENDANT’S REPLY IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT
`AND REQUEST FOR SANCTIONS – PAGE 4
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`Case 1:21-cv-00349-RP Document 64 Filed 03/13/23 Page 5 of 9
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`Release
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`Not
`Material/Agreed
`Upon
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`Despite Smith’s contentions to the contrary, the
`parties’ negotiated a full release of claims. Regardless,
`the precise terms and specific language of the release
`are not necessarily material.14 Even where the scope of
`the release is disputed, courts routinely enforce
`settlement agreements even where the precise wording
`of a release has not been finalized.15
`The parties agreed to the amount contained in the
`liquidated damages provision, as Defendant accepted
`the lower amount offered by Smith.16
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`Agreed Upon
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`Confidentiality
`Provision
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`Fifth, and finally, Smith attempts to recharacterize Defendant’s duty to make payment in
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`accordance with the Settlement Agreement as a condition precedent to a valid and enforceable
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`agreement. However, this is a nonstarter. A settlement agreement is valid and enforceable even if
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`it contemplates an action that occurs at a later date, unless the parties explicitly agree that there
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`will be no valid agreement until the parties complete the action.17 The nonpayment does not affect
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`the validity or enforceability of the settlement agreement. Additionally, his claim that because
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`Defendant has not changed Smith’s status to “eligible for rehire” that this was a “basic element[]
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`of consideration” is simply false. As previously stated, the parties agreed to a neutral reference
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`provision.
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`C.
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`The Opt-In Plaintiffs are Similarly Bound to the Settlement Agreement by Filing the
`Consent to Join.
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`The Opt-In Plaintiffs attempt to use the Consent to Join as grounds to assert their
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`entitlement to participation in this lawsuit and, at the same time, disclaim that Consent to Join to
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`14 In re Deepwater Horizon, 786 F.3d 344, 357 (5th Cir. 2015).
`15 Id. (internal quotations and citations omitted); see also Lee, 2020 WL 4700896, at *18 (plaintiff’s refusal to sign a
`general release waiving all her claims, where she claims she did not agree to waiving all her claims, was not grounds
`to deny defendant’s motion to enforce).
`16 See July 23, 2022, email from D. Welmaker to I. Smith, Ex. 1. Smith’s attempt to avoid the enforcement of the
`Settlement Agreement by placing blame on his prior counsel for not communicating a “fuse” with respect to the
`confidentiality provision is not only in bad form, but also inherently admits that this was not a material term, as it
`would have been otherwise communicated.
`17 See Simon v. Barrett Steel Energy Prods., Civil Action No. H-17-3831, 2018 WL 2010300, at *8 (S.D. Tex. Apr.
`30, 2018) (finding a valid and enforceable settlement agreement even when the parties agreed to execute a release, but
`the plaintiff had not yet executed the release).
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`DEFENDANT’S REPLY IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT
`AND REQUEST FOR SANCTIONS – PAGE 5
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`Case 1:21-cv-00349-RP Document 64 Filed 03/13/23 Page 6 of 9
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`back out of the Settlement Agreement. The wording of the Consent to Join is clear: “By filing this
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`consent, I understand that I designate the Named Plaintiff [Smith]…as my agent to make decisions
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`on my behalf concerning the Fair Labor Standards Act litigation against Defendant
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`including…entering into settlement agreements…”18 The Opt-In Plaintiffs likewise agreed that
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`they are represented by Mr. Welmaker, and that they are “bound by the Representation Agreement”
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`entered into between Smith and Mr. Welmaker. Id. The Representation Agreement between Smith
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`and Mr. Welmaker expressly authorizes Mr. Welmaker “to negotiate a settlement and compromise
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`of” the claims in this lawsuit.19 The Opt-In Plaintiffs gave Smith authority to bind them to the
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`Settlement Agreement, which he did.20 Therefore, the Opt-In Plaintiffs are similarly bound to the
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`Settlement Agreement.
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`This Court should unequivocally reject the tactics advanced by Smith and Mr. Wagoner
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`here. It takes nothing but bluster for one lawyer to insert themselves into the attorney-client
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`relationship of another, claim he or she could have obtained a better deal, and thereby challenge
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`the integrity of a settlement reached in good faith. However, if this Court permits these tactics and
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`Smith and Wagoner are allowed to unravel an agreed-to settlement, what prevents another attorney
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`from inserting themselves into the litigation at a later point, denigrating Mr. Wagoner and any
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`settlement he obtains based on unfounded claims, and seeking a do-over yet again? This could go
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`on ad infinitum.
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`D.
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`The Settlement Agreement Is the Product of a Fair and Reasonable Compromise of
`a Bona Fide Dispute.
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`Plaintiffs argue that the matter was not a bona fide dispute because the parties did not
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`engage in aggressive tactics and extensive discovery. However, a bona fide dispute as to liability
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`18 See, e.g., Dkt. 5 (emphasis added).
`19 Exhibit 4, Representation Agreement.
`20 See supra Section A.
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`DEFENDANT’S REPLY IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT
`AND REQUEST FOR SANCTIONS – PAGE 6
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`Case 1:21-cv-00349-RP Document 64 Filed 03/13/23 Page 7 of 9
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`exists where the evidence in the record is inconclusive as to the hours worked or the amount of
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`compensation owed.21 As Smith and Opt-In Plaintiffs admit, inherently, the record is clearly
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`inconclusive as to the hours worked or the amount of compensation owed.22 Moreover, in the Fifth
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`Circuit, district courts are not required to review and approve “private compromises as to FLSA
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`claims where there is a bona fide dispute as the to the amount of hours worked or compensation
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`due.”23 Defendant unquestionably denies any liability with respect to Smith or Opt-In Plaintiffs.
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`See Dkt. No. 7. Plaintiff’s argument fails.
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`E.
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`The Court Should Grant Sanctions Against Plaintiff Isaiah Smith.
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`Smith’s flagrant attempts to back out of the Settlement Agreement, propounded by the
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`improper response to Defendant’s Motion to Enforce, only further support the request for
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`Defendant’s attorneys’ fees, costs and expenses incurred in connection with the Motion to Enforce.
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`Smith has needlessly dragged out for months a matter that has been resolved.
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`III. CONCLUSION
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`The Court should strike Plaintiffs’ Amended Response and grant Defendant’s Motion to
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`Enforce Settlement Agreement and Request for Sanctions Against Isaiah Smith and enforce the
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`parties’ Settlement Agreement.
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`21 Moody v. Amw Contr., LLC, Civil No. 2:19-cv-119, 2020 WL 13430058, at *3 (S.D. Tex. Mar. 18, 2020) (citing
`Sandlin v. Grand Isle Shipyard, Inc., No. 17-10083, 2018 WL 2065595, at *6 (E.D. La. May 3, 2018)).
`22 See Dkt. 61 pp. 17.
`23 Martin v. Spring Break ’83, Prods., L.L.C., 688 F.3d 247, 255 (5th Cir. 2012).
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`DEFENDANT’S REPLY IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT
`AND REQUEST FOR SANCTIONS – PAGE 7
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`Case 1:21-cv-00349-RP Document 64 Filed 03/13/23 Page 8 of 9
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`Dated: March 13, 2023
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`Respectfully submitted,
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`/s/ Robert F. Friedman
`Robert F. Friedman
`Texas State Bar No. 24007207
`Jonathan G. Rector
`Texas State Bar No. 24090347
`Kathryn B. Blakey
`Texas State Bar No. 24111394
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`LITTLER MENDELSON, P.C.
`2001 Ross Avenue, Suite 1500
`Dallas, TX 75201.2931
`214.880.8100
`214.880.0181 (Facsimile)
`rfriedman@littler.com
`jrector@littler.com
`kblakey@littler.com
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`ATTORNEYS FOR DEFENDANT
`MV TRANSPORTATION, INC.
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`DEFENDANT’S REPLY IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT
`AND REQUEST FOR SANCTIONS – PAGE 8
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`Case 1:21-cv-00349-RP Document 64 Filed 03/13/23 Page 9 of 9
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`CERTIFICATE OF SERVICE
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`On March 13, 2023, I electronically submitted the foregoing document with the clerk of
`court for the U.S. District Court, Western District of Texas and electronically served same, using
`the CM/ECF system of the Court. The CM/ECF system sent a Notice of Electronic Filing to the
`following counsel of record by electronic means:
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`Douglas B. Welmaker
`WELMAKER LAW, PLLC
`409 N. Fredonia St., Suite 118
`Longview, Texas 75601
`doug@welmakerlaw.com
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`ATTORNEY FOR PLAINTIFF
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`Nicholas J. Wagoner
`WAGONER LAW FIRM
`5339 Alpha Road, Suite 450
`Dallas, Texas 75240
`nick@wagonerlawfirm.legal
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`ATTORNEY FOR PLAINTIFFS
`ISAIAH SMITH, MARK ADAM,
`COLLEGE GRAHAM, BARBARA
`NASH, LESLIE SMITH, STEVEN
`LAURENAO, AND LORI BOYKIN
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`
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` 4889-3051-9638.3 / 072247-1232
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`
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`/s/ Robert F. Friedman
`Robert F. Friedman
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`DEFENDANT’S REPLY IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT
`AND REQUEST FOR SANCTIONS – PAGE 9
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