The opinion of the court was delivered by: Hon. William G. Bassler
This action arises out of a commercial dispute between plaintiff Sander Sales Enterprises, Ltd. ("Sander Sales"), a manufacturer of bedding goods, and defendant Saks, Inc. ("Saks"), a buyer. Plaintiff filed this action alleging breach of contract based on "charge backs" on certain of plaintiff's merchandise that was sold and/or returned by Saks. Specifically, plaintiff alleges that it is entitled to over $119,630.76 for improper charge backs. Saks maintains that the issue was resolved by and between the parties in February 1999. Frank J. DeAngelis Affidavit ("DeAngelis Aff.") at ¶ 4.
On June 8, 2004, the parties met with Magistrate Judge Madeline Cox Arleo and reached a settlement. Although the settlement agreement was not placed on the record, it was subsequently reduced to writing. Essentially, the parties agreed that Saks would pay plaintiff $20,000 and that Saks's buyers would meet again with plaintiff's agents. If Saks placed an order with plaintiff, the $20,000 payment would complete the settlement. No set amount was fixed as to the orders and terms. If Saks did not place an order with plaintiff, then plaintiff had the option of accepting the $20,000 to complete the settlement, rejecting the settlement in its entirety. Certification of Abraham Borenstein ("Borenstein Cert."), Ex. 2.
With respect to dismissal, the Settlement Agreement also provided:
The matter will be the subject of a 45 day Court Order by Judge Arleo. This means that the matter is deemed settled and will be so reflected on the Court records unless one party or the other notifies the Court and opposing counsel in writing that the matter has not been settled. If no such notice is provided, the matter is deemed settled with prejudice to its refiling.
On July 8, 2004 this Court entered a 45-day order dismissing plaintiff's action "without prejudice to the right upon good cause shown within 45 days or until August 17, 2004, to reopen the action if the settlement is not consummated." ("Dismissal Order"). The Court also "retain[ed] jurisdiction over the settlement to enforce its terms." (Docket Entry #26).
By letter dated August 13, 2004, plaintiff's counsel sent a one-line letter to the Clerk of the Court, with a copy to the Magistrate Judge:
"please be advised that this settlement has not been consummated, we would request that the case be restored to the active calendar per the order of the Court."
(Docket Entry #27). This Court was not copied on the letter. In addition, the letter did not address the "good cause" standard for reopening the action as required by the Dismissal Order.
On August 19, 2004, Magistrate Judge Arleo sent an electronic notice of a hearing for September 7, 2004. (Docket Entry #11). In addition, the Court is advised by the Magistrate that her deputy clerk notified plaintiff's counsel telephonically of the September 7, 2004 conference.*fn1 Defense counsel, who received the electronic notice, appeared at the conference. (DeAngelis Aff. at ¶ 12). Plaintiff's counsel did not appear for the conference. This was the second time plaintiff's counsel failed to appear for a conference before the Magistrate Judge. (Id.).
More than six months elapsed and plaintiff made no further effort to restore this case to the active calendar. On February 17, 2005, plaintiff's counsel sent a letter to the Magistrate Judge again requesting that "the case be restored to the active calendar per the order of the Court." The letter also requested a status conference. Again, the Magistrate Judge scheduled a conference on March 7, 2005. Judge Arleo advised plaintiff's counsel that he failed to properly restore the case to the active calendar, failed to appear for the September 7, 2004 hearing and that the case remained dismissed with prejudice pursuant to the Court's July 8, 2004 Order. (Id.).
On March 11, 2005, plaintiff filed this motion to vacate the Court's Dismissal Order. The Court held oral argument on December 28, 2005. This Court denied plaintiff's motion to vacate. Defendant Saks advised that it had never paid the $20,000 as per the Settlement Agreement. In exercising its jurisdiction to enforce the terms of the Settlement Agreement, the Court ordered defendant to pay $20,000.
This Opinion supplements the oral record of ...