United States District Court, M.D. Florida, Tampa Division
LINDA M. MYERS, Plaintiff,
HYDRAULIC HOSE OF HILLSBOROUGH, LLC, and BRIAN O'DONNELL, Defendants.
D. MERRYDAY, UNITED STATES DISTRICT JUDGE.
parties agreed on July 28, 2017, to settle this FLSA action.
On August 4, the plaintiff notified the court about the
settlement and stated that the parties would move for
approval of the settlement no later than August 18. (Doc. 34)
In accord with Local Rule 3.08(b), an August 7 order (Doc.
35) dismisses the action without prejudice and permits the
parties to submit a stipulation of dismissal with prejudice
(accompanied by the proposed FLSA settlement) no later than
October 6. A month and a half after the expiration of the
time within which to request a dismissal with prejudice, the
plaintiff moves (Doc. 36) to “enforce [the]
settlement” or to vacate the August 7 order. According
to the plaintiff, the defendants repudiated the settlement.
Motion to “enforce the settlement”
no order retains jurisdiction to enforce the settlement, the
court lacks jurisdiction to enforce the settlement.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375 (1994) (“Absent [an order that retains
jurisdiction], enforcement of the settlement agreement is for
the state courts, unless there is some independent basis for
federal jurisdiction.”). To the extent the August 7
order implicitly “retains jurisdiction” over an
item, the order contemplates only a stipulation of dismissal
with prejudice accompanied by a motion for approval of the
Motion to vacate under Rule 60(b)(6)
“extraordinary” remedy, relief under Rule
60(b)(6), Federal Rules of Civil Procedure, requires showing
that an “extreme” and “unexpected”
hardship will result from an order if not vacated.
Griffin v. Swim-Tech. Corp., 722 F.2d 677, 680 (11th
Cir. 1984) (citing Ackermann v. United States, 340
U.S. 193 (1950), and United States v. Swift &
Co., 286 U.S. 106 (1932)). Because a separate action for
breach of contract remedies the purported breach of a
settlement, the considered weight of authority holds that the
breach of a settlement inflicts no “extreme”
injury susceptible to relief under Rule
60(b)(6). Sawka v. Healtheast, Inc., 989
F.2d 138, 140-41 (3d Cir. 1993) (Nygaard, J.); Rey v.
United States, 51 F.3d 1046 (5th Cir. 1995) (per
curiam); Harman v. Pauley, 678 F.2d 479 (4th Cir.
1982) (Ervin, J.); cf. also Keeling v. Sheet Metal
Workers Intern. Ass'n, Local Union 182, 937 F.2d
408, 410 (9th Cir. 1991) (“In the usual course upon
repudiation of a settlement agreement, the frustrated party
may sue anew for breach of the agreement and may not, as
here, reopen the underlying litigation after
the breach of a settlement could justify relief under Rule
60(b)(6), in this instance the e-mails attached to the
plaintiff's motion strongly suggest that neglect by the
plaintiff's counsel accounts (at least partially) for the
parties' failure to effectuate the settlement. The
defendants' counsel e-mailed the plaintiff's counsel
on August 14, August 29, and September 18 to inquire about
the settlement papers.(Doc. 36-1) The plaintiff's counsel
first responded on October 17 - two and a half weeks after
the expiration of the time within which to move for approval
of the settlement. (Doc. 36-1)
parties agreed to resolve this FLSA action. According to the
plaintiff, the defendants repudiated the settlement, which
purportedly required no judicial approval or dismissal with
prejudice. Because an action for breach of contract remedies
the plaintiff's injury and because the plaintiff fails to
identify an “extreme” and
“unexpected” hardship that warrants vacating the
August 7 order, the motion (Doc. 36) is DENIED.
 If the settlement depended on judicial
approval (that is, if approval of the settlement amounted to
a condition precedent) and if the parties failed to obtain
approval, a different result might obtain. But this order
need not decide that issue because the plaintiff states (more
than once) that the settlement required no judicial approval
or dismissal with prejudice. (Doc. 36 at 4)
 On October 20, the defendants'
counsel explained that the time within which to move for a
dismissal with prejudice expired on October 6 and asked,
“How do you propose to overcome that hurdle?” The
plaintiff's counsel articulated no answer and instead