Whittington v. Dragon Group, LLC et al.
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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
FRANK C. WHITTINGTON, II,
Plaintiff,
v.
DRAGON GROUP L.L.C.,
THOMAS D. WHITTINGTON, JR.,
RICHARD WHITTINGTON,
L. FAITH WHITTINGTON,
DOROTHY W. MINOTTI,
MARNA A. McDERMOTT,
SARAH I. WHITTINGTON,
RUTH A. WHITTINGTON,
MATTHEW D. MINOTTI, and
DOROTHY A. MINOTTI,
Defendants.
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Civil Action No. 2291-VCP
MEMORANDUM OPINION
Submitted: January 23, 2013
Decided: May 1, 2013
Frank C. Whittington, II, Middletown, Delaware; pro se Plaintiff.
John G. Harris, Esq., BERGER HARRIS, LLC, Wilmington, Delaware; Attorneys for
Defendants Dragon Group, LLC, Thomas D. Whittington, Jr., Richard Whittington,
L. Faith Whittington, and Dorothy W. Minotti.
Richard L. Renck, Esq., Andrew D. Cordo, Esq., ASHBY & GEDDES, P.A.,
Wilmington, Delaware; Attorneys for Defendants Marna McDermott, Sarah Whittington,
Ruth Whittington, Matthew Minotti, and Dorothy A. Minotti.
PARSONS, Vice Chancellor.
This dispute is but the latest development in the now decades-long feud between
the plaintiff and the defendants. This may be the final chapter of this case; regrettably,
however, litigation between these parties undoubtedly will continue.1
After I entered judgment in favor of the plaintiff in the underlying lawsuit, the
defendants appealed to the Delaware Supreme Court. With that appeal pending, the
parties engaged in settlement negotiations and eventually reached a settlement. The
parties formalized the settlement in a signed, written agreement executed by the plaintiff
and each of the ten defendants.
The defendants then paid the plaintiff the agreed
settlement amount and voluntarily dismissed their appeal. The plaintiff, however, has not
performed his obligations under the agreement to execute a general release of claims and
satisfaction of judgment. The defendants now move for enforcement of the settlement
agreement and for their attorneys‘ fees under a provision of the agreement that entitles
any party that successfully files suit to enforce the terms of the settlement agreement to
recover its reasonable attorneys‘ fees.
For the reasons stated in this Memorandum Opinion, I grant the defendants‘
motion to enforce the settlement agreement and to recover $2,500 in attorneys‘ fees.
1
A separate case involving essentially the same parties, C.A. No. 6654-VCG, is
proceeding contemporaneously.
1
I.
BACKGROUND
A.
The Parties
All parties are members of, or entities controlled by, the Whittington family. The
plaintiff is Frank C. Whittington, II (―Whittington‖ or ―Plaintiff‖).
The defendants are Plaintiff‘s four siblings, Thomas D. Whittington, Jr., L. Faith
Whittington, Richard Whittington, and Dorothy W. Minotti, and certain members of the
next generation of the Whittington family: Marna A. McDermott, Sarah I. Whittington,
Ruth A. Whittington, Matthew D. Minotti, and Dorothy A. Minotti (collectively,
―Defendants‖).
Nominal Defendant Dragon Group, L.L.C. (―Dragon Group‖) is a
Delaware limited liability company owned and managed by members of the Whittington
family, including Plaintiff.
B.
Facts
The complete factual predicate of this case has been recited in a previous Opinion,
and will not be repeated.2 The facts that follow are those relevant to the pending motion,
all of which occurred after I entered a Final Order and Judgment on August 2, 2012.
These facts are not contested and are drawn from the parties‘ briefs on this motion and
the supporting exhibits and affidavits.
In an April 15, 2011 Opinion, I found in favor of Plaintiff, awarded him an amount
to be determined, and declared him an 18.81% owner of Dragon Group.3
In the
2
See Whittington v. Dragon Group, L.L.C., 2011 WL 1457455 (Del. Ch. Apr. 15,
2011).
3
See id.
2
subsequent Final Order and Judgment, I awarded Whittington $630,212.93 (the
―Judgment‖).4 On August 31, 2012, Defendants timely appealed my decision to the
Supreme Court.5
While that appeal was pending, Whittington and Defendants engaged in settlement
discussions. The parties negotiated throughout September, and by the end of that month
were close to reaching an agreement in principle. On October 1, 2012, however,
Whittington‘s attorneys, Cross & Simon, LLC (―C&S‖), ceased representing him. C&S
asserted an attorneys‘ lien (the ―C&S Lien‖ or ―Lien‖) against any funds paid from
Defendants to Whittington in the amount of $65,812.67. On October 5, 2012, the parties
finalized the terms of a settlement agreement (the ―Settlement Agreement‖ or
―Agreement‖), and both Whittington and Defendants formally executed the Agreement.6
The Agreement accounted for the Lien by requiring Defendants to pay the Lien amount
directly to C&S.
In the Agreement, Defendants promised voluntarily to dismiss their appeal to the
Supreme Court and to pay Whittington $396,000 to satisfy the Judgment from this
4
See D.I. No. 290, ORDER (Aug. 2, 2012). All Docket Item Numbers (―D.I. No.‖)
refer to the docket in this case, C.A. No. 2291-VCP.
5
D.I. No. 292, Notice of Appeal (Aug. 31, 2012).
6
Whittington signed the Agreement on or about October 9, 2012. Affidavit of
Richard S. Gebelein, Esq. (―Gebelein Aff.‖) ¶ 5.
3
Court.7
Of that amount, $330,187.33 would be placed in an escrow account for
Whittington, and the remaining $65,812.67 would be placed in an escrow account for
C&S.8 As consideration for those payments, Whittington agreed that, within five days of
the funds being escrowed, he would file a ―release/satisfaction of the Judgment.‖9 The
Agreement also provided that C&S would release the C&S Lien upon receipt of the
escrowed funds.10 C&S, however, declined to sign the Agreement.11
The parties retained retired judge Richard S. Gebelein to serve as the escrow agent
(the ―Escrow Agent‖).12
In mid-October, Defendants deposited the full amounts of
$330,187.33 and $65,812.67 into the escrow accounts set up for Whittington and C&S,
respectively. The Escrow Agent initially indicated that he would not release either fund
until he obtained C&S‘s signature on the Agreement. C&S, however, was reluctant to
sign the Agreement due to some of the language in the Agreement as to release.13 Instead
7
See Defs.‘ Mot. to Enforce Settlement Agreement and for Attorney‘s Fees (―Defs.‘
Mot.‖) Ex. A, Settlement Agreement, § 2.
8
Id. § 2(b).
9
Id. § 5.
10
Id. § 17; see also infra note 25 and accompanying text.
11
Gebelein Aff. ¶ 10.
12
According to Defendants: ―After executing the Settlement Agreement, in light of
the fact that Plaintiff was not represented by counsel, the parties retained retired
judge Richard S. Gebelein, Esq., to serve as an escrow agent for the payment of
the settlement consideration.‖ Defs.‘ Mot. ¶ 7.
13
Id.
4
of signing the Agreement, C&S provided, and Whittington accepted, written assurances
that payment under the Agreement would satisfy all of C&S‘s claims for attorneys‘ fees
in this matter.14 On October 24, the Escrow Agent released the funds to both Whittington
and C&S.15 Subsequently, the Escrow Agent sent to Whittington copies of the executed
Agreement and the written assurances from C&S.
Despite having received the escrowed funds, Whittington has not executed a
release of claims or acknowledged satisfaction of this Court‘s Judgment in his favor as
required by the Agreement.
C.
Procedural History
On December 19, 2012, Defendants filed the pending motion to enforce the
Agreement and to recover $2,500 in attorneys‘ fees they incurred in connection with the
motion. Whittington responded to Defendants‘ motion with a letter disputing the validity
of the Settlement Agreement. He seeks both a declaration that the Settlement Agreement
is unenforceable and an order enforcing the original Judgment in the full amount of
$630,212.93. Whittington also requests an award of $1.1 million in attorneys‘ fees, the
total amount he purports to have incurred over the entire course of this protracted
litigation.16
14
Id. ¶¶ 10–11; see infra notes 26–28 and accompanying text.
15
Id. ¶ 12 (―On October 24, 2012 $330,188.00 was wired to Mr. Frank Whittington‘s
bank account as he had directed.‖).
16
See D.I. No. 299, Letter from Whittington to the Court (Jan. 14, 2013)
(―Whittington Letter‖), at 2.
5
Parties’ Contentions
D.
Defendants contend that the Agreement is a binding contract enforceable against
Whittington.
To the extent that C&S‘s participation was required to effectuate the
Agreement, Defendants assert that Whittington‘s acceptance of C&S‘s written assurance
suffices to bind him. In addition, Defendants seek to recover their reasonable attorneys‘
fees of $2,500 pursuant to Section 13 of the Agreement.
Whittington, on the other hand, argues that the Agreement is invalid because C&S
did not sign it. In support of this contention, Whittington avers that the Escrow Agent
affirmed that the Agreement was incomplete and invalid without C&S‘s signature. He
also challenges the validity of the Agreement on the ground that the time element on the
Agreement expired.17
Lastly, Whittington argues that it is inequitable to allow
Defendants, but not him, to receive payment of their attorneys‘ fees from the Dragon
Group business jointly owned by him and Defendants.
Accordingly, he seeks
reimbursement of the attorneys‘ fees he incurred in this litigation.
II.
A.
ANALYSIS
Enforcement of the Settlement Agreement
―‗Delaware law favors the voluntary settlement of contested suits,‘ and such
arrangements will bind the parties where they agree to all material terms and intend to be
17
Whittington Letter 1. The Agreement, however, contains no such ―time element.‖
Notably, Whittington executed the Agreement on October 9, 2012 and received
payment on October 24, just over two weeks later. There is no basis to conclude
that a fifteen-day time lapse between execution and payment could invalidate the
Agreement. I therefore reject this perfunctory argument.
6
bound by that contract . . . .‖18 ―A party seeking to enforce [a] settlement agreement has
the burden of proving the existence of [a] contract by a preponderance of the evidence.‖ 19
When dealing with a motion to enforce a settlement agreement, the Court generally
determines whether a binding agreement arose by asking
whether a reasonable negotiator in the position of one
asserting the existence of a contract would have concluded, in
that setting, that the agreement reached constituted agreement
on all of the terms that the parties themselves regarded as
essential and thus that that agreement concluded the
negotiations and formed a contract.20
In other words, to determine whether a contract was formed, a party‘s ―overt
manifestation of assent—not subjective intent—controls.‖21
In this case, Whittington does not dispute that the parties reached a settlement
agreement on all material terms.
Furthermore, Defendants filed the Settlement
Agreement, which was executed by Whittington and each Defendant, with their motion.
Thus, Defendants have demonstrated the existence of a contract. Whittington‘s main
18
Schwartz v. Chase, 2010 WL 2601608, at *4 (Del. Ch. June 29, 2010) (quoting
Clark v. Ryan, 1992 WL 163443, at *5 (Del. Ch. June 17, 1992)). Delaware law
governs the Settlement Agreement. See Settlement Agreement § 11.
19
Id. (quoting Heiman Aber & Goldlust v. Ingram, 1998 WL 442691, at *2 (Del.
Super. May 14, 1998)).
20
Id. (quoting Leeds v. First Allied Conn. Corp., 521 A.2d 1095, 1097 (Del. Ch.
1986)).
21
Loppert v. WindsorTech, Inc., 865 A.2d 1282, 1285 (Del. Ch. 2004) (quoting
Indus. Am., Inc. v. Fulton Indus., Inc., 285 A.2d 412, 415 (Del. 1971)).
7
defense against the enforceability of the Agreement is that it was not signed by his former
attorneys, C&S.
Nothing in the law of contracts requires that a contract be signed to be
enforceable.22 Where a settlement agreement has been reached, ―the fact, alone, that it
was the understanding that the contract should be formally drawn up and [executed],
[does] not leave the transaction incomplete and without binding force, in the absence of a
positive agreement that it should not be binding until so reduced to writing and formally
executed.‖23 Therefore, ―[t]he question is whether the parties positively agreed that there
22
See Willard F. Deputy & Co. v. Hastings, 123 A. 33, 35 (Del. Super. 1923) (―[I]n
the absence of testimony showing that execution by all of the parties was intended
or some other reason or consideration calling for joint execution, the signatures of
part of those named in the instrument bind them though others named therein have
not signed the same.‖); Schutzman v. Gill, 154 A.2d 226, 229 (Del. Ch. 1959)
(―[W]hen a contract is reduced to writing and a number of persons are named
therein as parties, a portion of whom sign the same and a portion of whom do not
affix their signatures, the question whether or not those who have signed the
contract are bound thereby is determined by the intention and understanding of the
parties at the time of the execution of the instrument. . . . [I]n the absence of
testimony showing that execution by all of the parties was intended or some other
reason or consideration calling for joint execution, the signatures of part of those
named in the instrument bind them though others named therein have not signed
the same.‖); see also Operating Eng’rs Local 139 Health Benefit Fund v.
Gustafson Constr. Corp., 258 F.3d 645, 648 (7th Cir. 2001) (―Nothing in the law
of contracts requires that a contract, whether original or modified, must be signed
to be enforceable. The contract needn‘t be in writing; if it is in writing, it needn‘t
be signed, provided there‘s other evidence of acceptance, for example by
performance . . . .‖); 17A Am. Jur. 2d Contracts § 174 (―[A]part from statute a
signature is not necessary to the formation of a contract . . . .‖).
23
Loppert, 865 A.2d at 1285 (emphasis added) (quoting Universal Prods. Co. v.
Emerson, 179 A. 387, 394 (Del. 1935)).
8
will be no binding contract until the document is executed.‖24 In this case, the only
person that did not sign the Agreement is C&S. There is no evidence, however, that the
parties positively agreed that the Agreement would not be binding until C&S formally
executed it.
The Settlement Agreement states:
C&S joins as a party to this Agreement solely for the purpose
of agreeing that, upon wiring of the C&S Payment . . . it: (i)
releases and discharges and terminates the C&S Lien; and (ii)
releases Defendants and their counsel from any claim of any
kind or nature relating to or arising out of the C&S Lien or
any funds purported to be due or owing to C&S.25
Thus, C&S‘s signature was required solely to ensure that C&S discharged its Lien and
released Defendants from any claim relating to the Lien. While C&S did not sign the
Agreement, Whittington consented to accept C&S‘s written assurances in lieu of C&S‘s
signature on the Agreement.26
Whittington does not directly address the written
assurances in his January 14, 2013 letter to the Court. In a November 2, 2012 letter,
which Defendants attach as Exhibit C to their motion, however, Whittington alluded to
these written assurances by stating:
[C&S] did not sign this agreement, and thus according to
what I was told by Judge Gebelein would not be eligible to
receive any money till they did. Yet later a fax was sent to
partially agree with the agreement. So I believe that the
24
Schwartz v. Chase, 2010 WL 2601508, at *8 (Del. Ch. June 29, 2010).
25
Settlement Agreement § 17 (emphasis added).
26
Gebelein Aff. ¶ 11.
9
defendants still have an obligation to pay me the
$65,812.67.27
Thus, Whittington acknowledged that he received a document whereby C&S partially
agreed with the Agreement. It is reasonable to infer that he is referring to the written
assurances. Retired judge Gebelein provided a sworn statement that he ―obtained Mr.
Whittington‘s consent to accept that written assurance and disbursed all funds as
provided in the settlement agreement upon receipt of those assurances.‖28 Based on this
evidence, I find that Whittington received the written assurances and consented to accept
them. Thus, Whittington manifested an intent to be bound by the terms of the Agreement
even absent C&S‘s signature.29
Notably, Whittington does not dispute that he agreed to and intended to be bound
by the Agreement.30 Rather, he disputes the legal effect of the Agreement based on the
absence of C&S‘s signature. Defendants relied on Whittington‘s manifestation of intent
when they paid Whittington the amount owing under the Agreement and voluntarily
27
Defs.‘ Mot. Ex. C.
28
Gebelein Aff. ¶ 11.
29
See Corp. Serv. Co. v. Kroll Assocs., Inc., 2001 WL 755934, at *4 (Del. Super.
June 15, 2001) (―[C]onduct which imports acceptance or assent is acceptance or
assent, in the view of the law . . . .‖); see also Thomson-CSF, S.A. v. Am.
Arbitration Ass’n, 64 F.3d 773, 777 (2d Cir. 1995) (―In the absence of a signature,
a party may be bound by an arbitration clause if its subsequent conduct indicates
that it is assuming the obligation to arbitrate.‖); In re Gaynes, 27 B.R. 161 (B.A.P.
9th Cir. 1983) (stating that an unsigned contract will be valid ―where subsequent
conduct of the parties manifest [sic] the intent to adhere to a binding contract.‖).
30
See Whittington Letter 2.
10
dismissed their appeal in the Supreme Court. Whittington also does not dispute that he
received the $330,188 that the Escrow Agent attests was wired to Whittington‘s bank
account as Whittington had directed.31
In support of his position, Whittington asserts that the Escrow Agent informed him
that the Agreement would be binding only after C&S formally executed the Agreement.32
The Escrow Agent, however, indicates that he informed Whittington that C&S‘s
signature was required before he would release the escrowed funds, not that it was
required to make the Agreement binding.33 Moreover, the Escrow Agent made the
alleged statement before learning that the law firm had a problem with signing the
Agreement and before receiving written assurances from C&S. As the Escrow Agent
explained:
31
Gebelein Aff. ¶ 12; see also Defs.‘ Mot. Ex. C, Letter from Whittington to the
Court (Nov. 2, 2012) (―However only $330,187.33 was actually provided to me.‖).
32
See Whittington Letter 1. Whittington stated:
According to Judge Gebelein, who acted as the mediator, the
agreement is incomplete and invalid without the Cross and
Simon signatures. At the time of the plaintiffs signing it, the
reason Judge Gebelein gave for refusing to give the plaintiff a
copy which had all the signatures except Cross and Simon,
was that it invalidated the agreement without the Cross and
Simon signatures that were listed in the agreement.
Id.
33
Gebelein Aff. ¶ 9 (―I did indicate that I would not release funds to either Mr. Frank
C. Whittington, II or to his former attorneys until I had obtained the law firm‘s
signature on the agreement.‖).
11
Subsequent to [the meeting at which Whittington signed the
original documents,] Mr. Cross had problems with the
language in the agreement as to the release and instead agreed
to provide Mr. Whittington with written assurance that
payment under this agreement would satisfy all claims for
attorneys‘ fees in this matter. []I obtained Mr. Whittington‘s
consent to accept that written assurance and disbursed all
funds as provided in the settlement agreement upon receipt of
those assurances. []On October 24, 2012 $330,188.00 was
wired to Mr. Frank Whittington‘s bank account as he had
directed. []One of the original agreements was then provided
to Mr. Whittington along with the written assurances from his
previous attorneys.34
In addition, immediately after Whittington and Defendants executed the
Agreement, and before C&S was contacted for their signature, Defendants deposited the
entirety of the settlement funds into the escrow accounts and voluntarily dismissed their
appeal.35 These facts severely undermine Whittington‘s argument that the Agreement
was not valid because C&S declined to sign it. In fact, the Escrow Agent and Defendants
appear to have relied on Whittington‘s manifestation of intent to be bound by the
Agreement‘s terms after C&S provided the written assurances. Whittington, having now
received the full benefit of the bargain he struck with Defendants, cannot justly assert that
he did not intend to be bound by that bargain and attempt to repudiate the Settlement
Agreement and obtain the full amount of the Judgment.36 Thus, I conclude that both
34
Id. ¶¶ 10–13.
35
See Notice of Voluntary Dismissal, C.A. No. 482,2012 (Oct. 15, 2012).
36
See Capital Gp. Cos. v. Armour, 2004 WL 2521295, at *6 (Del. Ch. Oct. 29, 2004)
(―To allow [a plaintiff] to claim the benefit of the contract and simultaneously
12
Whittington and Defendants intended to be bound by the Settlement Agreement and that
it constitutes a valid, binding agreement.
Whittington does not dispute that his failure to file a release of claims and
satisfaction of Judgment as required by the Agreement, if valid and binding, was a
material breach of the Agreement. Because ―breaches of settlement agreements are not
readily remedied by monetary damages,‖ specific enforcement of a settlement
agreement‘s essential terms is generally appropriate.37 Thus, I conclude that Defendants
are entitled to specific enforcement of the Settlement Agreement.
B.
Defendants’ Attorneys’ Fees
The second issue before me is whether Defendants are entitled to their attorneys‘
fees under the Settlement Agreement. Section 13 of the Agreement provides:
If any of the Parties are required to file suit to compel
performance or enforce the terms and conditions of this
Agreement, the prevailing party in the litigation, as
determined by a Delaware court of competent jurisdiction,
shall be entitled to recover his, her or its reasonable attorneys‘
fees and costs.
avoid its burdens would . . . disregard equity.‖ (quoting Int’l Paper Co. v.
Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 418 (4th Cir.
2000))).
37
Loppert, 865 A.2d at 1292.
13
Because I have concluded that the Settlement Agreement is binding and enforceable,
Defendants are the ―prevailing party‖ in this litigation. As such, they are entitled to
recover their reasonable attorneys‘ fees and costs.38
Defendants seek reimbursement of $2,500 in attorneys‘ fees and costs.
Defendants‘ counsel has submitted an affidavit pursuant to Court of Chancery Rule 88
stating that their actual attorneys‘ fees and expenses incurred in pursuing enforcement of
the Agreement total $3,117.39 The affidavit attests that ten attorney hours were spent (1)
drafting written correspondence with Plaintiff, (2) conducting phone conversations with
Plaintiff, (3) conducting internal strategy discussions, (4) drafting this motion, and (5)
drafting and collecting supporting documentation.
Whittington did not dispute the
reasonableness of the fees Defendants seek. An award of $2,500 in these circumstances
would provide Defendants‘ counsel an implied hourly rate of $250. I find this rate and
the time expended to be reasonable. Thus, I award Defendants $2,500 in attorneys‘ fees.
38
Settlement Agreement § 13.
39
Defs.‘ Mot. Ex. F. Rule 88 states:
In every case in which an application to the Court is made for
a fee or for reimbursement for expenses or services the Court
shall require the applicant to make an affidavit or submit a
letter, as the Court may direct, itemizing (1) the amount
which has been received, or will be received, for that purpose
from any source, and (2) the expenses incurred and services
rendered, before making such an allowance.
14
C.
Plaintiff’s Attorneys’ Fees
Plaintiff asks this Court ―to consider the full reimbursement of his entire attorney‘s
fees of 1.1 million dollars.‖40 Whittington asserts that on the merits of the litigation
underlying this most recent dispute, Defendants lost, and he won. Nevertheless, he
complains that he was not afforded the same ability as Defendants to have the jointly
owned Dragon Group pay for his attorneys‘ fees.41 But, this Court has heard and rejected
that argument before.
In July 2007, while litigating the claims leading up to the Settlement Agreement,
Defendants met and authorized Dragon Group to pay legal fees ―to defend the members
and the LLC against actions attempting to diminish their share and force [Whittington] on
the LLC as a member‖ (the ―Authorization‖).42 Pursuant to the Authorization, Dragon
Group paid $798,241 in legal fees for itself and Defendants.43 In a May 25, 2012 Letter
Opinion, I ruled that the Authorization provides for indemnification only when members
―defend‖ themselves in litigation.44 Because Whittington was the plaintiff in that action,
40
Whittington Letter 2.
41
Id.
42
Whittington v. Dragon Gp., L.L.C., 2012 WL 2052792, at *1 (Del. Ch. May 25,
2012).
43
Id. Whittington asserts that Dragon Group paid $890,000 in attorneys‘ fees.
Whittington Letter 2.
44
Whittington v. Dragon Gp., L.L.C., 2012 WL 2052792, at *1–2.
15
I concluded that he was not entitled to recover his attorneys‘ fees pursuant to the
Authorization.45
Under Court of Chancery Rule 59(f), Whittington had five days to move for
reargument on my ruling that he was not entitled to attorneys‘ fees, which he failed to do.
Whittington also failed to appeal that ruling. The only other avenue for relief from my
previous Order open to Whittington would be by way of a motion under Rule 60(b).
Whittington‘s letter in opposition to Defendants‘ pending motion, however, does not
mention Rule 60(b) or suggest that any of the possible grounds for relief under Rule
60(b) are applicable here. Thus, even allowing for the fact that Whittington is selfrepresented, I find that he has not presented any persuasive basis for his claim for
attorneys‘ fees. Therefore, I deny that request.
III.
CONCLUSION
For the foregoing reasons, I grant Defendants‘ motion to enforce the Settlement
Agreement and award them $2,500 in attorneys‘ fees and costs. Plaintiff shall pay to
Defendants $2,500 within ten days. I also deny Plaintiff‘s request for recovery of his
attorneys‘ fees.
An appropriate form of Order is being entered concurrently with this
Memorandum Opinion.
45
Id.
16
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