United States District Court, N.D. Texas, Fort Worth Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE.
the Court are Plaintiff Wilfred Omoloh's Motion to Hold
Defendant in Contempt of Court (ECF No. 34), filed March 20,
2018; Defendant's Response and Objection to
Plaintiff's Motion (ECF No. 35), filed April 10, 2018;
Plaintiff's Reply in Support of his Motion (ECF No. 36),
filed May 4, 2018; and Plaintiff's “Corriegenda and
Addendum of Plaintiff's Motion Opposing Defendant's
Motion for Contempt” (ECF No. 37), filed May 11, 2018.
United States District Judge Reed O'Connor referred
Plaintiff's Motion and all related responses to the
undersigned by Order dated May 14, 2018 (ECF No. 38). After
considering the pleadings of the parties and applicable law,
the undersigned RECOMMENDS that Judge
O'Connor DENY Plaintiff's Motion for
Contempt (ECF No. 34).
April 24, 2017, Defendant filed its Motion to Enforce
Settlement Agreement (ECF No. 16) asserting that the parties
agreed to all material terms of a settlement agreement and
requesting that the Court order enforcement of the agreement.
ECF No. 16. The undersigned recommended that Defendant's
motion be granted. ECF No. 21. On June 15, 2017, Judge
O'Connor accepted the Findings, Conclusions, and
Recommendation, ruling that Plaintiffs understood the terms
of the settlement agreement, entered into it willingly, and
sought to fulfill the terms of the agreement. ECF No. 32.
Judge O'Connor entered judgment accordingly. ECF Nos. 33.
Plaintiffs were ordered “to execute the settlement
agreement and return it to counsel for Bank of America no
later than seven (7) days after the date” of the Order.
ECF No. 32. The date of that Order was June 15, 2017, so
Plaintiffs were required to execute the settlement agreement
and return it to Defendant's counsel on or before June
22, 2017. Both Plaintiffs did not sign and return the
agreement as ordered.
Wilfred Omoloh requests this Court “to hold the
[D]efendant in contempt of the Court for refusing to execute
the settlement agreement ordered [by] the District Judge and
to find that the actual foreclosure on or about May 5, 2015,
is wrongful and allow Plaintiff to proceed with
trial[.]” ECF No. 34. In response, Defendant argues
that the Court's order expressly requires both Plaintiffs
to sign the settlement agreement, but that Plaintiff Wilfred
Omoloh submitted the settlement agreement without Plaintiff
Kathleen Omoloh's signature. ECF No. 35 at 5-6. Defendant
contends it notified Plaintiff Wilfred Omoloh several times
that the settlement agreement must be signed by both
Plaintiffs in order for Defendant to issue payment to
Plaintiffs, as ordered by the Court. Id. at 6-7.
Plaintiff Wilfred Omoloh does not dispute these allegations
or offer evidence to the contrary.
filed the instant Motion over nine months after the Final
Judgment was entered in this case. While Plaintiff does not
expressly request relief under Federal Rule of Civil
Procedure 60(b), even if the undersigned were to construe
Plaintiff's Motion as requesting relief from the Final
Judgment, Plaintiff does not present the requisite
“extraordinary circumstances” to warrant such
relief. Fed.R.Civ.P. 60(b); B-F Invs. v. F.D.I.C.,
252 F.3d 434, 434 (5th Cir.2001) (The rule should only be
applied in “extraordinary circumstances, ” and
primarily applies in cases in which the “true merits of
a case might never be considered because of technical error,
or fraud or concealment by the opposing party, or the
court's inability to consider fresh evidence.”).
Plaintiff simply seeks a contempt order because the Defendant
has not paid the amount promised in the settlement agreement,
he still is not entitled to the relief that he seeks. To
establish civil contempt, the moving party must prove by
clear and convincing evidence that “(1) a court order
was in effect, (2) the order required specified conduct by
the [defendant], and (3) the [defendant] failed to comply
with the court's order.” United States v. City
of Jackson, Miss., 359 F.3d 727, 731 (5th Cir. 2004).
The Plaintiff has failed to make such a showing.
undersigned finds that both Plaintiffs were ordered to
execute the settlement agreement and return it to Defendant
on or before June 22, 2017. ECF Nos. 21, 32. The Plaintiffs
failed to do so. Defendant is not obligated to perform under
the settlement agreement because the Plaintiffs have not
returned a fully executed agreement as Judge O'Connor
ordered. Thus, Defendant was unable to perform under the
settlement agreement due to Plaintiffs' noncompliance.
See United States v. Rylander, 460 U.S. 752, 757
(1983) (“Where compliance is impossible, neither the
moving party nor the court has any reason to proceed with the
civil contempt action.”). Defendant is not in violation
of the Court's order and is not liable for contempt.
Because Plaintiffs have not complied with the Court's
Order, Plaintiff Wilfred Omoloh is not entitled to the relief
he seeks, and Judge O'Connor should DENY
of this Findings, Conclusions, and Recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of this Findings, Conclusions,
and Recommendation must file specific written objections
within fourteen days after being served with a copy.
See 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P.
72(b)(1). In order to be specific, an objection must identify
the specific finding or recommendation to which objection is
made, state the basis for the objection, and specify the
place in the magistrate judge's findings, conclusions,
and recommendation where the disputed determination is found.
An objection that merely incorporates by reference or refers
to the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings ...