Harper v. Nevada Property 1, LLC

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 Case No. 2:19-cv-02069-GMN-VCF 7 MITCHELL E. HARPER, ORDERS 8 Plaintiff(s), [Docket Nos. 40, 41, 64] 9 v. REPORT AND RECOMMENDATION 10 NEVADA PROPERTY 1, LLC, [Docket No. 41] 11 Defendant(s). 12 Pending before the Court is Defendant’s motion to enforce settlement and for sanctions. 13 Docket No. 41. Plaintiff filed a response and Defendant filed a reply. Docket Nos. 44, 47. The 14 Court held an evidentiary hearing on the motion. See Docket No. 62; see also Docket No. 70 15 (transcript). Following that hearing, Defendant filed paperwork evidencing the fees for which it 16 seeks recovery. Docket No. 64. Plaintiff filed a response and Defendant filed a reply. Docket 17 Nos. 65, 66. Also pending before the Court is a motion to seal. Docket No. 40. The parties filed 18 subsequent documents under seal and the Court ordered them to make a proper showing for each 19 document. Docket No. 57. The parties filed a joint supplement. Docket No. 59. The motion to 20 seal is properly resolved without a hearing. See Local Rule 78-1. 21 For the reasons discussed more fully below, the Court issues orders (1) GRANTING in 22 part and DENYING in part Defendant’s motion for sanctions and (2) GRANTING in part and 23 DENYING in part the motion to seal. The undersigned also RECOMMENDS that Defendant’s 24 motion to enforce settlement be GRANTED.1 25 1 Awarding attorneys’ fees and resolving a motion to seal are non-dispositive matters, so 26 orders are issued resolving those motions. Grimes v. City & Cnty. of San Francisco, 951 F.2d 236, 240 (9th Cir. 1991); Roberts v. Clark Cnty. Sch. Dist., No. 2:15-cv-00388-JAD-PAL, 2016 WL 27 1611587, at *1 (D. Nev. Apr. 21, 2016). Granting a motion to enforce settlement is a dispositive matter, so a report and recommendation is issued addressing that motion. Boskoff v. Yano, 217 F. 28 Supp. 2d 1077, 1084 n.4 (D. Haw. 2001). 1 I. BACKGROUND 2 On December 3, 2019, this case was assigned to the Early Neutral Evaluation Program and 3 the undersigned was assigned to the case as the settlement judge. Docket No. 2.2 Upon 4 Defendant’s appearance a few months later, the undersigned set the early neutral evaluation. 5 Docket No. 11. The early neutral evaluation was continued twice, Docket Nos. 17, 22, and was 6 eventually held on September 10, 2020, Docket No. 29. After roughly three hours at the early 7 neutral evaluation, a settlement was placed on the record that included the material terms of 8 “confidentiality” and “no admission of any liability or wrongdoing.” See Docket Nos. 29, 39.3 9 The Court ordered the parties to file dismissal papers by October 8, 2020. Docket No. 29. 10 On October 8, 2020, Defendant filed a motion to extend that deadline as the written settlement 11 agreement had not yet been executed. See Docket No. 31. The Court granted the motion to extend. 12 Docket No. 32. On November 4, 2020, Defendant filed a status report indicating that defense 13 counsel had been advised that “Plaintiff has some concerns about the agreement which counsel is 14 trying to resolve, but resolution has been complicated by some communication difficulties between 15 Plaintiff and his counsel.” Docket No. 34. The Court again extended the deadline to file dismissal 16 papers. Docket No. 35. 17 On November 12, 2020, Plaintiff’s counsel sent an email to defense counsel indicating that 18 she had “spoken with [Plaintiff] at length. He no longer wants to settle. I explained the possible 19 outcomes of that decision (including that you’d likely file a Motion to Enforce), and he’s adamant 20 that he does not want to settle and will not sign the agreement.” Evid. Hrg. Def. Ex. 8 at 4 (NVP1- 21 0067). That same day, Plaintiff’s counsel made similar representations in a joint status report: 22 On September 10, 2020[,] the parties reached a confidential resolution of the above-referenced matter. . . . A written document 23 memorializing the parties’ agreement has been exchanged; however, 24 2 The magistrate judge who presides over an early neutral evaluation is not the magistrate 25 judge assigned to the case for general purposes. Gfeller v. Doyne Med. Clinic, Inc., No. 2:14-cv- 01940-JCM-VCF, 2015 WL 5210392, at *8 (D. Nev. Sept. 3, 2015). The magistrate judge 26 overseeing the early neutral evaluation has the authority to resolve disputes arising therefrom. Id. 27 3 As discussed in Section II, the Court will not keep secret the confidentiality, non- disparagement, and non-admission terms, but will keep secret the other aspects of the parties’ 28 settlement agreement. Plaintiff has told his counsel that despite having agreed to resolve 1 this matter and confirmed the key terms of the agreement on the record with the Court, he no longer wishes to settle. 2 3 Docket No. 36 at 1. Hence, Plaintiff’s counsel unequivocally represented that a binding settlement 4 had been reached but that Plaintiff no longer wished to settle. 5 The parties’ status report also asked the Court to schedule a “status conference and require 6 Mr. Harper’s participation.” Id. at 2. The Court declined to set that status conference that appeared 7 aimed at having the Court explain the law to Plaintiff, which is the job of his attorney. See Docket 8 No. 37 at 1 n.1. Instead, the Court instructed Plaintiff’s counsel to address with her client the 9 binding legal authority that appeared to govern the scenario being described. See id. (citing Doi 10 v. Halekulani Corp., 276 F.3d 1131, 1137-38 (9th Cir. 2002)). To facilitate those discussions, the 11 Court again extended the deadline to file dismissal papers. Id. 12 Plaintiff continued to refuse to sign the settlement agreement. As a result, Defendant filed 13 the motion to enforce settlement and for sanctions that is now before the Court. Docket No. 40.4 14 Plaintiff’s response to the motion did not include evidentiary support, in the form of a declaration 15 or otherwise, for the representations being made in that brief. As such, the Court ordered Plaintiff 16 to file a proper declaration attesting to those representations. Docket No. 48.5 Plaintiff responded 17 by filing a rambling, evasive, and generally non-responsive “written statement” that did not 18 comply with 28 U.S.C. § 1746. Docket No. 52. The Court again ordered Plaintiff to file a statute- 19 compliant declaration that directly addressed the representations made in the responsive brief. 20 Docket No. 53. Plaintiff then filed a declaration. Docket No. 55. 21 On April 9, 2021, the Court held an evidentiary hearing on the matter. Docket No. 62. 22 II. MOTION TO SEAL 23 Before addressing the substance of the parties’ dispute, the Court begins with the 24 administrative matter of determining which (if any) aspects of the judicial record should remain 25 4 The Court provided another off-ramp for Plaintiff, “strongly encourag[ing]” the parties 26 to resolve the dispute without the need for formal resolution of the motion to enforce and for sanctions. Docket No. 48 at 2. The resulting conferral efforts were not fruitful. Docket No. 49. 27 5 The Court also ordered defense counsel to file a declaration attesting to certain 28 representations made in reply. Docket No. 48 at 2. Defense counsel did so. Docket No. 50. 1 secret from the public. In conjunction with the motion to enforce and for sanctions, Defendant 2 filed a motion to seal. Docket No. 40; see also Docket No. 41 (sealed motion with exhibits). In 3 addition, the parties made several further filings under seal without an accompanying motion to 4 seal. Docket Nos. 44 (responsive brief and exhibit), 47 (reply brief), 49 (notice of meet and 5 confer), 50 (supplemental declaration), 51 (certificate of service), 52 (supplemental written 6 statement), 54 (certificate of service), 55 (supplemental declaration and certificate of service). The 7 Court ordered a supplement from the parties, Docket No. 57, which they filed along with proposed 8 redactions, Docket No. 59. 9 A. Standards 10 There is a strong presumption of public access to judicial records. Kamakana v. City & 11 County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). A party seeking to file documents under 12 seal bears the burden of overcoming that presumption. Pintos v. Pac. Creditors Ass’n, 605 F.3d 13 665, 678 (9th Cir. 2010). 14 The standard applicable to a motion to seal turns on whether the underlying materials are 15 submitted in conjunction with a dispositive or a non-dispositive motion. Whether a motion is 16 “dispositive” turns on “whether the motion at issue is more than tangentially related to the merits 17 of a case.” Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). 18 The parties assert in this case that the motion to enforce settlement should be considered 19 “dispositive” for purposes of their sealing request. See Docket No. 59 at 2.6 The Court agrees that 20 the motion to enforce is properly treated as being dispositive in nature. 21 22 6 Although case law within the Ninth Circuit is not uniform, there is ample authority as to 23 the dispositive nature of a motion to enforce settlement. See, e.g., Helix Environmental Planning, Inc. v. Helix Environmental & Strategic Sols., No. 3:18-cv-02000-AJB-AHG, 2021 WL 120829, 24 at *1 (S.D. Cal. Jan. 13, 2021); In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Liab. Litig., MDL No. 2672 CRB (JSC), 2020 WL 2425792, at *4 (N.D. Cal. May 12, 2020); Wells 25 Fargo Bank, N.A. v. Saticoy Bay LLC Series 3948 Applecrest, No. 2:17-cv-01360-APG-VCF, 2020 WL 2311560, at *2 (D. Nev. Apr. 23, 2020); Blain v. Titanium Metals Corp., No. 2:18-cv-00462- 26 APG-NJK, 2019 WL 1207929, at *1-2 (D. Nev. Mar. 14, 2019); WatchGuard Techs., Inc. v. iValue Infosolutions Pvt. Ltd., No. C15-1697-BAT, 2017 WL 3581624, at *1 (W.D. Wash. Aug. 18, 27 2017); Doud v. Yellow Cab of Reno, Inc., No. 3:13-cv-00664-WGC, 2015 WL 13706049, at *1 (D. Nev. June 11, 2015); Allstar Mktg. Grp., LLC v. Your Store Online, LLC, No. CV 09-02094 28 MMM (AGRx), 2010 WL 11523739, at *1 (C.D. Cal. July 14, 2010). 1 Parties “who seek to maintain the secrecy of documents attached to dispositive motions 2 must meet the high threshold of showing that ‘compelling reasons’ support secrecy.” Kamakana, 3 447 F.3d at 1180. The Ninth Circuit has indicated that “‘compelling reasons’ sufficient to 4 outweigh the public’s interest in disclosure and justify sealing court records exist when such ‘court 5 files might have become a vehicle for improper purposes,’ such as the use of records to gratify 6 private spite, promote public scandal, circulate libelous statements, or release trade secrets.’” Id. 7 at 1179 (quoting Nixon v. Warner Commc’ns Inc., 435 U.S. 589, 598 (1978)). “The mere fact that 8 the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to 9 further litigation will not, without more, compel the court to seal its records.” Id. 10 The burden to show compelling reasons is not met by conclusory assertions; rather, the 11 movant must “articulate compelling reasons supported by specific factual findings.” Id. at 1178. 12 For example, the Ninth Circuit has rejected efforts to seal documents under the “compelling 13 reasons” standard based on “conclusory statements about the contents of the documents–that they 14 are confidential and that, in general,” their disclosure would be harmful to the movant. Id. at 1182. 15 Such “conclusory offerings do not rise to the level of ‘compelling reasons’ sufficiently specific to 16 bar the public access to the documents.” Id. In allowing the sealing of a document, the Court must 17 “articulate the basis for its ruling, without relying on hypothesis and conjecture.” See, e.g., Pintos, 18 605 F.3d at 679 (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). 19 Any request to seal must also be “narrowly tailored” to remove from the public sphere only 20 material that warrants secrecy. E.g., Ervine v. Warden, 214 F. Supp. 3d 917, 919 (E.D. Cal. 2016) 21 (citing Press-Enterp. Co. v. Superior Court, 464 U.S. 501, 513 (1984)). To the extent any 22 confidential information can be easily redacted while leaving meaningful information available to 23 the public, the Court must order that redacted versions be filed rather than sealing entire 24 documents. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003); see 25 also in re Roman Catholic Archbishop of Portland in Ore., 661 F.3d 417, 425 (9th Cir. 2011). 26 B. Analysis 27 The Court begins with the parties’ acknowledgment that some filings do not warrant 28 secrecy. Docket No. 59 at 3. The Court will unseal the documents at Docket Nos. 49, 51, and 54. 1 The remaining aspects of the parties’ sealing requests hinge on the proposition that 2 settlement discussions, the early neutral evaluation process, and the terms of the settlement 3 agreement warrant continued secrecy based on their nature and the fact that the settlement 4 agreement has a confidentiality provision. See Docket No. 59 at 2-3. The competing 5 considerations make clear that the parties’ position cuts too broadly. 6 “[T]he mere fact that the parties’ settlement agreement may contain a confidentiality 7 provision, without more, does not constitute a compelling reason to seal the information.” Helix 8 Environmental, 2021 WL 120829, at *1; see also FTC v. AMG Servs., No. 2:12-cv-00536-GMN- 9 VCF, 2020 U.S. Dist. Lexis 232231, at *5 (D. Nev. Dec. 10, 2020) (“the confidentiality of the 10 settlement agreement alone does not provide a compelling reason to seal”). That is particularly 11 true in the context of a motion to enforce settlement, as the local rules put the parties on notice that 12 the Court may order the disclosure of otherwise confidential information as part of the resolution 13 of that motion. See Local Rule 16-5. The logic behind this approach is clear: although parties to 14 a confidential settlement agreement may prefer to keep its terms secret, “once they turn to the 15 federal court to resolve their disputes . . . the public administration of justice demands 16 transparency.” Avocados Plus Inc. v. Freska Produce Int’l LLC, No. 2:19-cv-06451-RGK-JC, 17 2019 WL 12345580, at *2 (C.D. Cal. Oct. 8, 2019) (quoting Polaris Innovations Ltd. v. Kingston 18 Tech. Co., No. SA CV 16-00300-CJC(RAOx), 2017 WL 2806897, at *7 (C.D. Cal. Mar. 30, 19 2017)).7 At the same time, courts recognize the general benefits of keeping settlement discussions 20 and settlements confidential when feasible. See, e.g., U.S. E.E.O.C. v. ABM Indus. Inc., No. 1:07- 21 cv-01428 LJO JLT, 2010 WL 582049, at *2 (E.D. Cal. Feb. 12, 2010) (“Confidentiality of the 22 mediation process encourages settlement” (citing United States v. Glens Falls Newspapers, Inc., 23 160 F.3d 853, 858 (2d Cir. 1998)). Moreover and as particularly apt to this case, courts are loath 24 to reward gamesmanship whereby a litigant seeking to challenge a confidentiality provision can 25 7 The motion to seal notes that the Court previously allowed for secrecy, including sealing 26 the recitation of the settlement terms on the record. Docket No. 59 at 3. At that time, however, there was no live dispute between the parties requiring judicial decision-making. Seeking judicial 27 relief by filing a motion to enforce shifts the consideration of the pertinent factors. See, e.g., Local Rule 16-5 (“The court’s ADR process is confidential . . . [but,] [i]n the event of a dispute to enforce 28 a settlement agreement, the court may order the disclosure of confidential information”). 1 defeat such confidentiality simply by requiring the filing of a motion to enforce. Cf. Saticoy Bay, 2 2020 WL 2311560, at *2 (noting that “[i]f Saticoy had not acted in bad faith and signed the 3 settlement agreement, then the settlement amounts and negotiations would have remained 4 confidential”). In addition, courts must balance the parties’ need for secrecy against the public’s 5 interests in transparency, including its interest in “understanding the judicial process.” Pintos, 605 6 F.3d at 679 & n.6. 7 Given all of these considerations, some courts have taken a middle approach in the context 8 of a motion to enforce a settlement whereby the terms of settlement pertinent to analyzing the 9 motion to enforce will not be kept secret, but the terms that are irrelevant to the motion to enforce 10 will be kept secret. See United States ex rel. Lesnik v. Eisenmann SE, No. 16-cv-01120-LHK, 11 2021 WL 2092944, at *3 (N.D. Cal. May 11, 2021); see also Pizza v. Fin. Indus. Regul. Auth., 12 Inc., No. 13-cv-0688 MMC (NC), 2015 WL 1383142, at *2 (N.D. Cal. Mar. 19, 2015). The Court 13 finds here that such an approach provides the proper balance of the competing interests at play.8 14 On the one hand, it would be unfair for Defendant to be deprived of the benefit of its bargain 15 (which includes confidentiality) simply because Plaintiff now challenges that very provision in the 16 settlement agreement, which prompted Defendant to file a motion to enforce. Moreover, various 17 aspects of the settlement agreement (including the amount of settlement) have no bearing on the 18 outcome of the motion to enforce, so keeping those aspects of the settlement secret does not hinder 19 the public’s understanding of the proceedings. On the other hand, the parties have come to the 20 Court with a dispute as to the settlement agreement, which heightens the need for transparency. 21 Moreover, the very existence of a motion to seal makes clear that the settlement agreement includes 22 a confidentiality provision, and the inclusion of confidentiality, non-disparagement, and non- 23 admission provisions are standard practice for settlement agreements for employment cases in this 24 District. See, e.g., Docket No. 50 at ¶ 9. As such, the need for secrecy as to these three provisions 25 is limited. In light of the above, the Court will not allow redaction related to the confidentiality, 26 8 The court in Lesnik determined that the lower “good cause” standard applies to materials 27 filed in conjunction with a motion to enforce settlement. 2021 WL 2092944, at *2. Nonetheless, the Court finds the overall approach adopted in Lesnik should also apply to a motion to enforce 28 settlement analyzed in this case under the “compelling reasons” standard. 1 non-disparagement, and non-admission provisions, but will allow redaction related to the other 2 aspects of the parties’ settlement. 3 Accordingly, the motion to seal is granted in part and denied in part. References and 4 discussion of the confidentiality, non-disparagement, and non-admission provisions in the 5 settlement agreement may not be redacted. References and discussion of all other aspects of the 6 settlement agreement (including the amount of settlement) may be redacted. 7 III. MOTION TO ENFORCE SETTLEMENT 8 Having resolved the administrative sealing matter, the Court turns to Defendant’s motion 9 to enforce settlement. Docket No. 41. Plaintiff filed a response and Defendant filed a reply. 10 Docket Nos. 44, 47. The Court held an evidentiary hearing on the motion. See Docket No. 62; 11 see also Docket No. 70 (transcript).9 12 A. Standards 13 The local rules channel employment cases into an alternative dispute resolution process 14 overseen by a magistrate judge in the hope that the parties can resolve or narrow the nascent cases. 15 Local Rule 16-6. Employment cases are often very personal in nature. Parties generally reach a 16 settlement of such cases only when each side is unhappy with the outcome. A settlement, after all, 17 requires the parties to “settle” on an unideal outcome: 18 The settlement of any case rarely comes without mixed feelings. It is a time when parties struggle to let go of their deep-seated belief 19 that with trial will come vindication. It is also a time when the plaintiff and defendant wonder if they are about to be snookered, 20 either by giving too much or taking too little. . . . For both [sides], the question ultimately is the same, what will I regret more, settling 21 this case—or not settling it? 22 Guzik Tech. Enterps., Inc. v. W. Digital Corp., No. 5:11-cv-03786-PSG, 2014 WL 12465441, at 23 *1 (N.D. Cal. Mar. 21, 2014). 24 25

26 9 Plaintiff’s positions are scattershot and not always readily discernible. The Court has considered all arguments presented, but it has not attempted to address every contention raised. 27 Any argument not explicitly discussed herein has been rejected to the extent it is inconsistent with the rulings rendered. See Herndon v. City of Henderson, 507 F. Supp.3d 1243, 1248 n.8 (D. Nev. 28 2020) (citing V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 314 n.12 (D. Nev. 2019)). 1 Settlement agreements are designed to end litigation, not create it. In re City Equities 2 Anaheim, Ltd., 22 F.3d 954, 957 (9th Cir. 1994). Unfortunately, the bittersweetness described 3 above sometimes lingers on the palate, rearing its ugly head in later efforts to unsettle a case or 4 resettle it on different terms. Guzik Technical, 2014 WL 12465441, at *1. When such 5 circumstances occur, courts have inherent authority to enforce settlement agreements in pending 6 cases. See, e.g., City Equities Anaheim, 22 F.3d at 958. Nevada law requires an offer and 7 acceptance, meeting of the minds, and consideration to constitute an enforceable contract. May v. 8 Anderson, 121 Nev. 668, 672 (2005).10 “A contract can be formed . . . when the parties have 9 agreed to the material terms, even though the contract’s exact language is not finalized until later.” 10 Id. Hence, “it is well-established that an oral agreement is binding on the parties, particularly 11 when the terms are memorialized into the record.” Doi, 276 F.3d at 1138 (quoting Sargent v. HHS, 12 229 F.3d 1088, 1090 (Fed. Cir. 2002)). Where the parties represent in open court that a settlement 13 was reached and place the terms on the record, courts are empowered to summarily require the 14 parties to comply with those terms. See id. at 1139. 15 “An agreement on the record becomes binding even if a party has a change of heart after 16 she agreed to its terms but before the terms are reduced to writing.” Id. at 1138 (quoting in re 17 Christie, 173 B.R. 890, 891 (E.D. Tex. 1994)). Courts rightfully reject objections to settlement 18 terms raised after agreeing to settle. Estate of Studnek v. Ambassador of Global Missions UN, No. 19 CIV-04-0595-PHX-MHM, 2007 WL 9724107, at *3 (D. Ariz. Apr. 11, 2007) (citing Harrop v. W. 20 Airlines, Inc., 550 F.2d 1143, 1144 (9th Cir. 1977)), recon. denied, 2007 WL 9724108 (D. Ariz. 21 Aug. 31, 2007). Stated bluntly, “the law does not allow someone to rescind a contract simply 22 because he no longer likes the terms to which he agreed.” Aki v. Univ. of Cal. Lawrence Berkeley 23 Nat’l Lab., No. 13-cv-04027, 2015 WL 1778481, at *5 (N.D. Cal. Apr. 17, 2015) (quoting Page 24 v. Horel, No. C-09-0289 EMC (pr), 2011 WL 5117562, at *7 (N.D. Cal. Oct. 28, 2011)). 25 26

27 10 Even when a case involves a federal cause of action, the construction and enforcement of settlement agreements are governed by state law. Jones v. McDaniel, 717 F.3d 1062, 1067 (9th 28 Cir. 2013). 1 B. Analysis 2 Resolution of the motion to enforce settlement is a relatively straightforward endeavor. 3 The parties appeared for an early neutral evaluation, they reached a settlement, and they placed the 4 essential terms of that settlement on the record. Docket No. 39. The essential terms placed on the 5 record included confidentiality and non-admission of liability. Id. at 5. Both Plaintiff himself and 6 his attorney explicitly stated on the record that a settlement was reached with those terms. Id. at 7 5-6. Defense counsel then drafted the settlement agreement with the standard confidentiality and 8 non-admission terms that have been approved on numerous occasions by Plaintiff’s counsel 9 herself. Docket No. 50 at ¶ 9. Nonetheless, Plaintiff urges that there was no settlement agreement 10 because there was no meeting of the minds as to the confidentiality and non-admission terms. See 11 Docket No. 44 at 3-4.11 To that end, Plaintiff argues that the terms as written in the draft settlement 12 agreement do not comport with his understanding at the time of the early neutral evaluation. See 13 id. Plaintiff’s argument fails for several reasons. 14 First, as will be discussed at length below in addressing Defendant’s entitlement to 15 sanctions, Plaintiff’s testimony as to this purported misunderstanding lacks credibility. See 16 Section IV.B. Plaintiff’s argument fails from the start given the lack of a factual basis. 17 Second, Plaintiff’s position is also directly at odds with governing Ninth Circuit authority. 18 In Doi, the Ninth Circuit entertained an argument that two of the settlement terms stated on the 19 record were not correctly transposed into the written agreement. 276 F.3d at 1139. In particular, 20 the appellant argued that the settlement could not be enforced because the terms stated on the 21 record did not “fully spell[] out” certain provisions in dispute, including confidentiality. See id. 22 11 Plaintiff’s argument does not fit neatly within a meeting-of-the-minds rubric. The 23 circumstances are essentially that Plaintiff had a different understanding of these terms than everyone else who attended the early neutral evaluation (including the undersigned). Indeed, 24 Plaintiff’s counsel has not filed a declaration or otherwise indicated that she understood that the terms would be written in any different manner. Hence, Plaintiff’s argument seems akin to 25 asserting a unilateral misinterpretation of the contract terms. See, e.g., Aki, 2015 WL 1778481, at *5 (analyzing argument that the plaintiff understood release term placed on the record differently 26 than stated in written agreement as a unilateral mistake). An overriding problem for Plaintiff is that a unilateral misunderstanding of the contract terms (even if believed) is not grounds, standing 27 alone, to be released from one’s contractual obligations; but rather, some additional showing must be made such as knowledge or fault by the opposing party at the time of contracting. E.g., Oh v. 28 Wilson, 910 P.2d 276, 278 (Nev. 1996). The record is lacking any such evidence. 1 The Ninth Circuit flatly rejected that argument. Most pertinent here, the Ninth Circuit held that 2 the confidentiality term was properly incorporated into the written agreement because it was 3 agreed to in open court subject to further discussion by counsel, the written agreement contained 4 a standard term and there was no evidence of overreaching, and, in any event, the appellant’s 5 attorney had stated on the record that the written agreement was consistent with the terms placed 6 on the record. Id. at 1139-40. 7 Doi dooms Plaintiff’s position here. He agreed on the record to confidentiality and 8 Defendant’s non-admission of liability. Docket No. 39 at 5-6. Counsel drafted the corresponding 9 written terms based on the same standard language used in several other cases by defense counsel 10 and Plaintiff’s counsel, Docket No. 50 at ¶ 9, and there is no evidence of overreaching. These 11 circumstances alone are fatal to Plaintiff’s position. See Doi, 276 F.3d at 1139. As was also the 12 case in Doi, however, there is additional ground on which to find a binding settlement agreement 13 based on the representations of Plaintiff’s attorney that dispel any contention otherwise: 14 Plaintiff has told his counsel that despite having agreed to resolve this matter and confirmed the key terms of the agreement on the 15 record with the Court, he no longer wishes to settle. 16 Docket No. 36 at 1. In short, Plaintiff has not shown that the terms of the written agreement 17 prepared by defense counsel were inconsistent with the terms of the agreement made on the record, 18 so the enforcement of settlement is warranted. See Doi, 276 F.3d at 1140. 19 Accordingly, the undersigned recommends that Defendant’s motion to enforce settlement 20 be granted. 21 IV. MOTION FOR SANCTIONS 22 The Court next turns to Defendant’s motion for sanctions in the form of attorneys’ fees 23 pursuant to the Court’s inherent authority. Docket No. 41 at 5-6.12 In particular, Defendant argues 24 that Plaintiff’s conduct in refusing to sign the settlement agreement and complete dismissal 25 documents amounts to bad faith that warrants redress. Id. Plaintiff did not address the request for 26

27 12 Defendant has at times referenced a desire to also recover its costs. See, e.g., Docket No. 64 at 1. Defendant has not identified any particular costs for which it seeks recovery. 28 Accordingly, the Court focuses its analysis on attorneys’ fees. 1 sanctions in responding to Defendant’s motion. See Docket No. 44. Nonetheless, the Court 2 provided Plaintiff with notice that it was considering the imposition of sanctions in relation to 3 Defendant’s efforts to enforce settlement, so that Plaintiff had an opportunity to address the 4 potential for sanctions at the evidentiary hearing. See Docket No. 56. Plaintiff also argued against 5 the imposition of sanctions in the post-hearing briefing. See Docket No. 65. 6 A. Standards 7 Holding parties to the terms of executed and valid settlement agreements is critically 8 important, as is deterring such behavior from the outset. The interests of equity, judicial economy, 9 and finality all militate strongly against efforts to renege on a settlement. See, e.g., Facebook, Inc. 10 v. Pac. Nw. Software, Inc., 640 F.3d 1034, 1042 (9th Cir. 2011) (in affirming enforcement of 11 settlement agreement, noting: “At some point litigation must come to an end. That point has now 12 been reached”); Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989) (enforcing a settlement 13 agreement “has as its foundation the policy favoring the amicable adjustment of disputes and the 14 concomitant avoidance of costly and time consuming litigation”). Particularly given that federal 15 judiciary resources are “strained to the breaking point,” courts cannot “countenance a plaintiff’s 16 agreeing to settle a case in open court, then subsequently disavowing the settlement when it suits 17 her.” Doi, 276 F.3d at 1141. “The courts spend enough time on the merits of litigation; we need 18 not (and therefore ought not) open the flood gates to this kind of needless satellite litigation.” Id. 19 Given the importance of these considerations, courts have several arrows in their quiver to 20 address improper efforts to renege on a settlement. One potent tool is the imposition of sanctions 21 as an exercise of inherent authority. Id. at 1140. “Federal courts possess certain ‘inherent powers,’ 22 not conferred by rule or statute, ‘to manage their own affairs so as to achieve the orderly and 23 expeditious disposition of cases.’” Goodyear Tire & Rubber Co. v. Haeger, ___ U.S. ____, 137 24 S.Ct. 1178, 1186 (2017) (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962)). Such 25 authority enables courts to fashion appropriate sanctions for conduct that abuses the judicial 26 process. Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). 27 “Because of their very potency, inherent powers must be exercised with restraint and 28 discretion.” Id. at 44. Sanctions are imposed pursuant to inherent authority only upon a finding 1 of bad faith or conduct tantamount to bad faith. B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1108 2 (9th Cir. 2002). Sanctionable conduct includes “recklessness when combined with an additional 3 factor such as frivolousness, harassment, or an improper purpose.” Fink v. Gomez, 239 F.3d 989, 4 994 (9th Cir. 2001). It is the moving party’s burden to demonstrate the party against whom it seeks 5 sanctions acted with the requisite bad faith or improper purpose. Lofton v. Verizon Wireless (VAW) 6 LLC, 308 F.R.D. 276, 285 (N.D. Cal. 2015). Attempts to renege on a valid settlement agreement 7 lend themselves to such a finding, however.13 The Ninth Circuit has affirmed the imposition of 8 sanctions under inherent authority when the terms of a settlement agreement had been placed on 9 the record, there had been no showing that the written settlement agreement was inconsistent with 10 those terms as stated on the record, and the party attempting to withdraw had refused to sign the 11 written agreement. Doi, 276 F.3d at 1141. 12 If the Court finds it appropriate to impose sanctions under its inherent authority, there are 13 several options available. “[A]n assessment of attorney’s fees is undoubtedly within a court’s 14 inherent power.” Chambers, 501 U.S. at 45.14 Such a sanction “is limited to the fees the innocent 15 13 See, e.g., Phillips v. Pilgrim Creek Estates Homeowners Assoc., No. 19-cv-102- 16 AJB(WVG), 2020 WL 995862, at *9 (S.D. Cal. Mar. 2, 2020) (finding sanctions appropriate where the plaintiff settled case in a settlement conference, but manipulated and hijacked the settlement 17 process by, inter alia, quibbling over immaterial terms and refusing to sign a written settlement agreement), adopted, 2020 WL 5757965, at *5 (S.D. Cal. Sept. 28, 2020); Leverty & Assocs. Law 18 Chtd. v. Exley, No. 3:17-cv-00175-MMD-WGC, 2018 WL 6728415, at *12-13 (D. Nev. Nov. 5, 2018) (finding sanctions appropriate for refusal to sign written settlement agreement 19 memorializing terms placed on the record at settlement conference as “conduct that perhaps most exhibits bad faith and a deliberate intention to thwart the judicial process”), adopted, 2019 WL 20 913096 (D. Nev. Feb. 22, 2019); Onewest Bank, FSB v. Farrar, Civ. No. 12-00108-ACK-KSC, 2013 WL 6175321, at *11 (D. Haw. Nov. 19, 2013) (finding sanctions appropriate where the 21 defendant failed to sign settlement agreement with the terms placed on the record, as well as failing to provide timely, reasonable, and constructive comments on the draft settlement agreement); 22 Estate of Studnek, 2007 WL 9724107, at *7 (finding sanctions appropriate where the parties settled case in a settlement conference because “[i]t is clear from the settlement conference transcript that 23 the settling Defendants were aware of the terms of the agreement and assented thereto. To now argue duress or confusion without any such showing, challenge jurisdiction, and disregard an 24 Order of the Court to retain new corporate counsel is unfair to the other parties involved in the settlement agreement”); Armstrong v. City & Cnty. of San Francisco, No. C 01-2611, 2004 WL 25 2713068, at *4 (N.D. Cal. June 14, 2004) (finding sanctions appropriate for motion to enforce settlement given that a representative of Plaintiff’s counsel had acknowledged the enforceability 26 of the settlement in open court). 27 14 Another potential sanction is a monetary fine. E.g., Slovak v. Golf Course Villas Homeowners’ Assoc., No. 3:13-cv-00569-MMD-CLB, 2020 WL 929515, at *5 (D. Nev. Feb. 26, 28 2020) (citing Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1472 (D.C. Cir. 1995)). The Court provided notice that it was considering the imposition of a fine, Docket No. 56 at 1-2, but finds 1 party incurred solely because of the misconduct—or put another way, to the fees that party would 2 not have incurred but for the bad faith.” Goodyear, 137 S.Ct. at 1184. This is a “but-for” test by 3 which the movant may recover only the portion of its fees that it would not have paid but for the 4 misconduct. Id. at 1187. In the context of a refusal to sign a written settlement agreement after 5 its terms are placed on the record at a settlement conference, attorneys’ fees would be recoverable 6 for time expended on further discussions or negotiations with the opposing counsel regarding the 7 refusal to sign, briefing a motion to enforce settlement, attending a hearing on a motion to enforce 8 settlement, and briefing the request for sanctions, including preparing the documentation 9 underlying the calculation for such request. See Leverty & Associates, 2018 WL 6728415, at *13; 10 see also Glass v. Pfeffer, 849 F.2d 1261, 1266 & n.3 (10th Cir. 1988) (awarding fees-on-fees with 11 respect to inherent authority sanctions). 12 B. Analysis of Entitlement to Sanctions 13 The parties here dispute whether Plaintiff’s conduct rises to the level required for the 14 imposition of inherent authority sanctions. Plaintiff argues that he did not act in bad faith because 15 he had a subjective belief that his understanding of the two identified terms differed from the 16 manner in which they were written. See, e.g., Docket No. 65 at 3.15 Defendant counters that the 17 conduct well exceeded the required threshold of bad faith conduct. See, e.g., Docket No. 66 at 3- 18 7. The Court agrees with Defendant that Plaintiff’s conduct is sufficiently egregious that sanctions 19 are warranted here. 20 The basic factual scenario is relatively simple. The parties appeared for an early neutral 21 evaluation, reached a settlement, and stated the essential terms of the settlement on the record. 22 See, e.g., Docket No. 29. The material terms as stated on the record include confidentiality and 23 non-admission of liability. Docket No. 39. Immediately after the early neutral evaluation, Plaintiff 24 that the award of attorneys’ fees is a sufficient sanction. Accordingly, the Court will not impose a 25 monetary fine on Plaintiff in the circumstances of this case. 26 15 The Court notes as a threshold matter that sanctions may be imposed under its inherent authority when the conduct at issue is bad faith or “tantamount to bad faith.” See Fink, 239 F.3d 27 at 994. The latter circumstance arises when, inter alia, the conduct is both reckless and frivolous. Id. Plaintiff makes no attempt at showing that his conduct, even if somehow not “bad faith,” would 28 not include the fatal combination of recklessness and frivolousness. 1 regretted his decision to settle. Docket No. 70 at 70, 72-73; see also Docket No. 52 at 5. 2 Nonetheless, Plaintiff knew that he was bound by his decision to settle. See Docket No. 70 at 73- 3 74. Defense counsel thereafter forwarded a written settlement agreement to Plaintiff’s counsel to 4 memorialize the terms. Docket No. 50 at ¶ 2. That draft settlement agreement included the 5 standard provisions for confidentiality and non-admission of liability that have been approved 6 repeatedly by Plaintiff’s own attorney. Id. at ¶ 9. Nonetheless, Plaintiff refused to sign the written 7 agreement because, in the words of his attorney, “[h]e no longer wants to settle.” Evid. Hrg. Def. 8 Ex. 8 at 4 (NVP1-0067). For the first time in responding to the motion to enforce, Plaintiff 9 contends that his refusal to sign the written settlement agreement was premised not on his admitted 10 desire to avoid the agreement he had entered, but rather because he had an epiphany in reading the 11 draft of the written settlement agreement that he had not actually understood the confidentiality 12 and non-admission terms. See Docket No. 44 at 3-4. Plaintiff insists unbelievably that his 13 epiphany was unrelated to his admitted desire to renege on the agreement to which he agreed, a 14 desire that predates by weeks his supposed revelation. See Docket No. 70 at 73-75. There are 15 many holes in Plaintiff’s story. 16 The Court begins by noting that Plaintiff has been knowingly advancing a frivolous 17 argument for months. As discussed above, Plaintiff’s position is foreclosed by the Ninth Circuit’s 18 decision in Doi. On November 13, 2020, before this dispute had boiled over into an actual motion 19 to enforce settlement, the Court specifically identified Doi to Plaintiff (through his counsel) 20 because it was unclear whether he had considered this binding case law in continuing to refuse to 21 sign the settlement agreement. Docket No. 37 at 1. The Court provided additional time precisely 22 to facilitate Plaintiff’s consideration of that case before proceeding further. Id. A simple perusal 23 of the Doi decision would have alerted Plaintiff to the frivolous nature of raising that argument in 24 subsequent motion practice. See 276 F.3d at 1139.16 A simple perusal of the Doi decision would 25 have also alerted Plaintiff to the potential imposition of sanctions should he continue to refuse to 26

27 16 The order was unexpectedly prescient in that Plaintiff at that time had not articulated his current position that the terms in the written agreement did not match his understanding of the 28 terms as placed on the record. 1 sign the settlement agreement given the circumstances. See 276 F.3d at 1140-41. Rather than 2 taking seriously the Ninth Circuit case law that governs here, Plaintiff chose to ignore it and 3 continue recklessly barreling forward with a frivolous position that was an obvious loser. 4 The baseless nature of Plaintiff’s legal argument is not his only problem, however, as the 5 factual basis for his position is also faulty. Plaintiff’s testimony was convoluted, contradictory, 6 inconsistent with the record, and wholly incredible.17 Before getting to the specific terms at issue, 7 the Court notes several overarching flaws in Plaintiff’s testimony. First, Plaintiff’s testimony is 8 plainly inconsistent with the representations of his attorney. While Plaintiff now asks the Court to 9 believe that he refused to sign the written settlement agreement because he had some confusion as 10 to the meaning of the confidentiality and non-admission provisions at the time of the early neutral 11 evaluation, his attorney has sung a markedly different tune. On November 12, 2020, Plaintiff’s 12 counsel stated unequivocally that: “He no longer wants to settle. I explained the possible 13 outcomes of that decision (including that you’d likely file a Motion to Enforce), and he’s adamant 14 that he does not want to settle and will not sign the agreement.” Evid. Hrg. Def. Ex. 8 at 4 (NVP1- 15 0067). Also on November 12, 2020, Plaintiff’s counsel signed a status report representing as 16 follows: 17 On September 10, 2020[,] the parties reached a confidential resolution of the above-referenced matter. . . . A written document 18 memorializing the parties’ agreement has been exchanged; however, Plaintiff has told his counsel that despite having agreed to resolve 19 this matter and confirmed the key terms of the agreement on the record with the Court, he no longer wishes to settle. 20 21 Docket No. 36 at 1 (emphasis added). There is no indication from Plaintiff’s counsel that a dispute 22 existed as to the specific language of any terms in the written settlement agreement, which was 23 impeding in any way the signing of that agreement. Instead, Plaintiff’s counsel is unambiguous 24 that (1) a settlement agreement had been reached, the terms of which were confirmed on the record, 25 but (2) Plaintiff no longer wanted to settle. That Plaintiff’s position now is inconsistent with the 26 27 17 The Court does not attempt to catalogue herein all of the holes in Plaintiff’s testimony; 28 rather, the Court is providing only examples. 1 contemporaneous statements of his attorney severely undermines his credibility. Cf. Doi, 276 F.3d 2 at 1139-40. 3 Second, Plaintiff’s professed revelation that the terms in the settlement agreement as 4 written were not reflective of his understanding at the time they were placed on the record is belied 5 by Plaintiff’s own behavior. Defendant was not informed of any concern with the two provisions 6 now at issue until Plaintiff responded to the motion to enforce, which was months after Plaintiff 7 indicated that he would not sign the settlement agreement. See Docket No. 50 at ¶ 8. That silence 8 is particularly problematic for Plaintiff given that defense counsel provided him numerous 9 opportunities to propose edits (including after the responsive brief was filed), but no proposed 10 changes to these terms were presented. See, e.g., id. at ¶¶ 10-11; Docket No. 70 at 27. Instead of 11 attempting to negotiate the written terms to reflect Plaintiff’s supposed understanding at the time 12 the settlement was read into the record, Plaintiff simply insisted that the entire settlement be 13 scrapped.18 Particularly given Plaintiff’s admission that he regretted agreeing to settle this case 14 immediately after the early neutral evaluation, his behavior is indicative of a party who wanted to 15 renege on a settlement and not of a party who wanted a written settlement agreement to reflect his 16 understanding of the terms. Cf. Onewest Bank, 2013 WL 6175321, *11 (finding bad faith behavior 17 meriting the imposition of sanctions based on, inter alia, “failing to provide timely, reasonable and 18 constructive comments to the draft Settlement Agreement”). This behavior strongly undermines 19

20 18 Plaintiff’s attempt to explain away this conduct is not persuasive. Plaintiff contends that he was not required to negotiate the language in the written agreement because he allegedly 21 believed that Defendant was unfair in its presentation of the written terms. See Docket No. 70 at 101. This argument is specious. Any belief that Defendant engaged in wrongful conduct is belied 22 by, inter alia, the fact that the proposed written terms are the standard terms approved by Plaintiff’s counsel in numerous cases. See, e.g., Docket No. 50 at ¶ 9. To the extent Plaintiff himself simply 23 refused to believe his own attorney on that issue, see Docket No. 70 at 103 (counsel arguing that a client may continue down a path even though “an attorney might explain to a client until they’re 24 blue in the face that this is or is not”), intentionally proceeding with blinders to the truth is assuredly not an indication that Plaintiff was proceeding in good faith. At any rate, Plaintiff had 25 his own duty to engage in the settlement process in good faith. See Remark Holdings, Inc. v. China Branding Grp. Ltd., No. 2:18-cv-00322-JAD-DJA, 2019 WL 4673183, at *2 (D. Nev. Sept. 24, 26 2019); see also Fed. R. Civ. P. 16(f)(1)(B). Plaintiff presents no legal authority that he may sidestep his own obligation to act in good faith based on an unsupported, subjective belief that the 27 opposing party is being unfair. The Court rejects this troubling proposition. At bottom, Plaintiff is simply not credible in representing that he refused to sign the settlement agreement based on a 28 subjective belief he purportedly held as to Defendant’s post-settlement behavior. 1 Plaintiff’s contention that he sincerely believed a settlement had been reached with different 2 confidentiality and non-admission terms than those included in the draft of the written agreement. 3 Third, Plaintiff’s position is premised on his supposed understanding of the nuances of the 4 terms of the agreement at the time of the settlement being placed on the record at the early neutral 5 evaluation, an understanding that he asserts departs from the terms as stated in the written 6 agreement. An obvious downfall of Plaintiff’s testimony is that he elsewhere disputes having any 7 such understanding at all: “As it was quite an emotional moment, I remember nothing about the 8 specifics of the agreement other than being presented two undesirable options: Agree to ‘walk 9 away’ so that Defendant would drop their [sic] plan to sue me or continue to seek justice and face 10 considerable financial liability.” Docket No. 52 at 3 (emphasis added). Quite obviously, Plaintiff 11 cannot both remember nothing about the specifics of the agreement and have an understanding of 12 the specifics of the agreement that differs from the terms as memorialized in writing.19 Taking 13 such irreconcilable positions casts serious doubt as to Plaintiff’s credibility. 14 Were these overarching defects in Plaintiff’s testimony not enough, Plaintiff’s testimony 15 specific to the terms at issue are themselves unbelievable. Take Plaintiff’s testimony with respect 16 to the confidentiality provision. Plaintiff attests that he believed at the time of the early neutral 17 evaluation that the confidentiality provision meant only that he “was to return any [of Defendant’s] 18 material and that [he] would not be allowed to discuss how the case was settled nor the settlement 19 amount.” Docket No. 55 at 3. Plaintiff attests that he believed he could discuss his “experience 20 with The Cosmopolitan both during and after [his] employment.” Id. In particular, Plaintiff 21 indicates that he did not believe he would be “precluded from discussing the trauma inflicted on 22 him while in Defendant’s employ.” Docket No. 44 at 4 (emphasis added). This is not believable. 23 To wit, Plaintiff acknowledges elsewhere that he “agreed to the non-disparagement provisions” 24 included in the written settlement agreement and has “no intention of disparaging the Defendant.” 25 Id. The non-disparagement term to which Plaintiff explicitly states he agrees provides on its face 26 that he cannot make any statements “that may be considered to be derogatory or harmful to the 27 19 Plaintiff was provided an opportunity to explain the contradictory representations, but 28 he provided evasive, nonsensical, and unsatisfactory answers. Docket No. 70 at 95-97. 1 good name or reputation” of Defendant. Docket No. 44-1 at 6.20 Hence, the very communications 2 that Plaintiff states he thinks should be beyond the scope of the agreed-upon confidentiality term 3 (i.e., statements meant to share the “trauma inflicted on him while in Defendant’s employ”) and 4 that purportedly formed the basis for his desire to not sign the written settlement agreement are 5 precluded by the text of the non-disparagement term to which Plaintiff affirmatively agrees. 6 Plaintiff is not credible in asserting that he in good faith refused to sign the settlement agreement 7 based on a misunderstanding as to the confidentiality term.21 8 Plaintiff’s position regarding the non-admission term is similarly lacking in credibility. 9 Plaintiff’s clearest articulation of his position as to this provision is as follows: 10 Pursuant to the negotiations at the Early Neutral Evaluation, Plaintiff believed that the Defendant would not be making an 11 admission of liability in this matter. However, the written settlement agreement contained language that in essence, required Plaintiff to 12 agree that Defendant would not be making an admission of liability. 13 Docket No. 40 at 3 (emphasis in original); see also Docket No. 55 at 3 (articulating objection to 14 the language in the settlement agreement as being that it was “stating that I agreed with [Defendant] 15 that there was no admission of wrongdoing”). Not only is the distinction being made technical 16

17 20 At the evidentiary hearing, Plaintiff testified that he thought he would not run afoul of the non-disparagement clause when casting aspersions on Defendant in a manner that Plaintiff 18 thought was truthful. See Docket No. 70 at 95. The non-disparagement clause as written and to which Plaintiff states he expressly agrees, does not allow for such statements. Particularly given 19 his alleged attention to detail as to the other terms in dispute, it makes little sense that Plaintiff would agree to the non-disparagement term as written if he truly believed it was meant to include 20 a carve-out for truthful communications. 21 21 Plaintiff veered off course at the evidentiary hearing, arguing that he disagreed with a separate provision requiring confidentiality with respect to information as to other employees. See, 22 e.g., Docket No. 70 at 37-63. Plaintiff’s testimony on this subject was evasive and convoluted. Plaintiff stated that he objected to such a provision because it would preclude him communicating 23 information to a court. See id. at 58-61, 63. As defense counsel noted at the evidentiary hearing, such concerns would be misplaced for the very simple reason that settling this case results in entry 24 of judgment and ends the need for Plaintiff to be communicating with the Court. See id. at 61, 63. When asked directly what other court proceedings could exist to which such information needed 25 to be shared, Plaintiff evaded the question. See id. Appearing to realize the baselessness of his position, Plaintiff later switched gears by indicating that his concern was actually premised on not 26 being able to discuss matters with other people and was unrelated to discussions with a court. Id. at 94 (noting that the “case wasn’t moving forward I guess” before testifying that he did not have 27 concerns about communicating confidential information to a court and, instead, was concerned about communicating with other people). To put it mildly, shifting and inconsistent testimony (in 28 the course of a single hearing) is not a hallmark of honesty. 1 and insignificant as a practical matter (i.e., not one that would likely lead to refusal to sign a 2 settlement agreement, even if true), but it is also completely inconsistent with the fact that Plaintiff 3 already did “agree” on the Court record that Defendant would not be making an admission of 4 liability. See Docket No. 39 at 3-5 (agreeing that an essential term of the settlement was that 5 Defendant would not be making an admission of liability). Hence, the ship long ago sailed on 6 Plaintiff agreeing that Defendant would not be admitting liability; he has already done so.22 7 Plaintiff is not credible in asserting that he in good faith refused to sign the settlement agreement 8 based on some misunderstanding as to the non-admission term. 9 Based on the circumstances presented, Plaintiff is not credible in representing that a 10 misunderstanding as to the confidentiality and non-admission terms was his reason for not signing 11 the settlement agreement. Plaintiff admitted that he immediately regretted settling the case at the 12 early neutral evaluation, but that he understood at that time that he was bound by the agreement 13 he had made. Docket No. 70 at 70, 72-74. When Plaintiff received the written settlement 14 agreement weeks later, he concocted a supposed misunderstanding of two standard terms in an 15 effort to pull off a Houdini act. He then simply refused to sign the agreement. Plaintiff continued 16 with his feigned confusion through briefing a motion to enforce, testifying at an evidentiary 17 hearing, and providing post-hearing briefing. Plaintiff’s litigation conduct is the definition of bad 18 faith and Defendant should not be forced to absorb the resulting attorneys’ fees incurred.23 An 19 imposition of sanctions is warranted. 20 22 Plaintiff elsewhere equates the non-admission provision with Plaintiff admitting 21 Defendant’s innocence. See Docket No. 52 at 4; see also Docket No. 65 at 3; Docket No. 70 at 31. Such a position is ridiculous. Plaintiff fails to provide any reasonable basis tethered to the 22 language of the agreement to support such a concern. See Docket No. 70 at 32-33. That shortcoming is particularly pronounced given that Plaintiff was a senior manager in human 23 resources who is represented in this case by counsel. See id. at 9. Indeed, Plaintiff eventually acknowledged at the evidentiary hearing that his purported concern may lack any basis in reality. 24 See id. at 67. Plaintiff’s position on this issue is just more feigned confusion. 25 23 Plaintiff urges the Court to find that he was not acting in bad faith because, while he may be wrong in the positions that he has advanced, he truly held a subjective belief in those positions. 26 See Docket No. 65 at 3-4; see also Docket No. 70 at 102-05. The Court disagrees. The record does certainly show that Plaintiff’s positions are baseless, but the record also shows that Plaintiff 27 is not credible in testifying that has actually believed those positions. 28 At any rate, Plaintiff’s alleged belief in his positions would not render him immune from inherent authority sanctions. Sanctions are properly imposed under the Court’s inherent authority 1 Accordingly, the Court concludes that the imposition of sanctions on Plaintiff in the form 2 of attorneys’ fees is warranted. 3 C. Calculation of Fees 4 Having determined that an award of attorneys’ fees is warranted, the Court turns to the 5 calculation of those fees. The Court determines a reasonable fee under the lodestar method by 6 multiplying the number of hours reasonably expended by a reasonable hourly rate. See Hensley v. 7 Eckerhart, 461 U.S. 424, 433 (1983). The lodestar figure is presumptively reasonable. 8 Cunningham v. County of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988).24 9 1. Reasonable Hours 10 The touchstone in determining the hours for which attorneys’ fees should be calculated is 11 whether the expenditure of time was reasonable. Marrocco v. Hill, 291 F.R.D. 586, 588 (D. Nev. 12 2013). The Court “has a great deal of discretion in determining the reasonableness of the fee and, 13 as a general rule, [an appellate court] will defer to its determination . . . regarding the 14 reasonableness of the hours claimed by the [movant].” Prison Legal News v. Schwarzenegger, 15 608 F.3d 446, 453 (9th Cir. 2010) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 16 1992)). The reasonableness of hours expended depends on the specific circumstances of each case. 17 Camacho v. Bridgeport Fin’l, Inc., 523 F.3d 973, 978 (9th Cir. 2008). In reviewing the hours 18 for conduct that is “tantamount to bad faith,” which includes conduct combining recklessness and 19 frivolousness. See Fink, 239 F.3d at 994. Although Plaintiff acknowledges this standard, Docket No. 65 at 3, he makes no effort to explain why his conduct was not tantamount to bad faith even 20 taking him at his word. Even were the Court to believe that Plaintiff held these subjective beliefs (which the Court does not), the Court would still conclude that his conduct was tantamount to bad 21 faith and would award sanctions on that basis. 22 The Court notes finally that its inherent authority is not the only basis on which to impose sanctions. In trying to put out the inherent authority fire blazing in front of him, Plaintiff argues 23 myopically that his supposed subjective belief defeats the imposition of sanctions no matter how baseless his positions are. Plaintiff fails to address why that same baseless conduct would not give 24 rise to sanctions under Rule 11 of the Federal Rules of Civil Procedure. See Business Guides, Inc. v. Chromatic Comms. Enterps., Inc., 498 U.S. 533, 535 (1991) (holding that Rule 11 imposes an 25 “objective standard” of reasonableness); see also Fed. R. Civ. P. 11(c)(3) (courts may initiate Rule 11 proceedings on their own initiative). There is no need to initiate Rule 11 proceedings at this 26 juncture, however, as Plaintiff’s conduct is sanctionable under the Court’s inherent authority. 27 24 Adjustments to the lodestar are proper in only “rare and exceptional cases.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). A 28 departure from the lodestar is not warranted in this case. 1 claimed, the Court may exclude hours related to overstaffing, duplication, and excessiveness, or 2 that are otherwise unnecessary. See, e.g., Hensley, 461 U.S. at 433. 3 Defendant is seeking to recover for 28.3 hours worked by Lisa McClane, 8.6 hours worked 4 by Daniel Aquino, and 15.6 hours worked by Holly Walker. See Docket No. 66 at 9-10. Plaintiff 5 raises two arguments as to the hours worked by defense counsel, neither of which is persuasive. 6 First, Plaintiff faults Ms. McClane for expending 0.1 hours reviewing an order on a 7 stipulation. Docket No. 65 at 9. It is not unreasonable for an attorney to review an order and the 8 0.1 time increment is the lowest possible charge. The Court finds the expenditure of that time to 9 be reasonable. 10 Second, Plaintiff faults Ms. McClane and Ms. Walker for time incurred in exploring the 11 potential basis for a counterclaim against Plaintiff in the event the settlement was not enforced. 12 Id. at 9. Neither party identifies case law on the issue. The Court agrees with Defendant that such 13 time is recoverable. A reasonably prudent lawyer would be expected to research the basis of a 14 potential counterclaim in the circumstances of this case once Plaintiff made clear that he was 15 refusing to finalize the agreed-upon settlement. Cf. Crusher Designs, LLC v. Atlas Copco 16 Powercrusher GmbH, No. 2:14-cv-01267-GMN-NJK, 2015 WL 6163443, at *3 (D. Nev. Oct. 20, 17 2015) (addressing recoverability for hours spent pre-litigation in developing case). Moreover, this 18 time was expended directly as a result of Plaintiff’s bad faith refusal to sign the settlement 19 agreement. See Goodyear, 137 S.Ct. at 1184. Hence, the Court agrees with Defendant that this 20 time is compensable here.25 21 In addition, the Court has otherwise reviewed the billing records submitted and finds in its 22 own review that the time expended by defense counsel was reasonable. Accordingly, all of the 23 hours identified will be included in the lodestar calculation. 24 2. Reasonable Hourly Rates 25 Having determined the hours reasonably expended by counsel, the Court turns to the hourly 26 rate with which to calculate the lodestar. The party seeking an award of attorneys’ fees bears the 27 25 Plaintiff also identified what appears to be a mathematical error in a billing entry for Ms. 28 Walker. Docket No. 65 at 9-10. Defendant corrected that error in reply. See Docket No. 66 at 10. 1 burden of establishing the reasonableness of the hourly rates requested. Camacho, 523 F.3d at 2 980. “To inform and assist the court in the exercise of its discretion, the burden is on the fee 3 applicant to produce satisfactory evidence–in addition to the attorney’s own affidavits–that the 4 requested rates are in line with those prevailing in the community for similar services by lawyers 5 of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 6 n.11 (1984). “Affidavits of the [movant’s] attorney and other attorneys regarding prevailing fees 7 in the community, and rate determinations in other cases, particularly those setting a rate for the 8 [movant’s] attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers 9 of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). The Court may also rely on its 10 own familiarity with the rates in the community to analyze those sought in the pending case. 11 Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). 12 Plaintiff does not dispute the reasonableness of the $380 hourly rate sought for Ms. 13 McClane. See Docket No. 65 at 6. Given Ms. McClane’s 15 years of experience, as well as her 14 skill and reputation, the Court agrees that an hourly rate of $380 is appropriate. 15 Plaintiff disputes the reasonableness of the hourly rates sought for Mr. Aquino and Ms. 16 Walker. See id. at 6-7. Mr. Aquino is a senior associate who graduated from Hastings law school 17 in 2012 and was previously a partner at a local law firm. See Docket No. 66 at 16. Defendant 18 seeks an hourly rate of $300 for Mr. Aquino. Ms. Walker graduated from Boyd law school in 19 2014, obtained three clerkships, and previously worked at two local law firms. See id. at 16-17. 20 Defendant seeks an hourly rate of $280 for Ms. Walker. The Court agrees with Plaintiff that the 21 hourly rates sought are somewhat excessive within this District. The Court finds that an hourly 22 rate of $250 is appropriate for Mr. Aquino and an hourly rate of $225 is appropriate for Ms. 23 Walker. See Capital One, N.A. v. SFR Invs. Pool 1, LLC, No. 2:17-cv-00604-RFB-DJA, 2019 WL 24 9100174, at *4, 7 (D. Nev. Sept. 24, 2019) (awarding hourly rates of $250 and $200 for associates 25 with eight and five years of experience); see also Sinanyan v. Luxury Suites Int’l, LLC, No. 2:15- 26 cv-00225-GMN-VCF, 2016 WL 4394484, at *4 & n.4 (D. Nev. Aug. 17, 2016) (collecting cases). 27 28 1 Accordingly, the lodestar will be calculated with an hourly rate of $380 for Ms. McClane’s 2|| time, an hourly rate of $250 for Mr. Aquino’s time, and an hourly rate of $225 for Ms. Walker’s 3]| time. 4 3. Lodestar 5 In light of the above, the Court calculates the lodestar as follows:

7 Aquino [so 10! Accordingly, Plaintiff will be required to pay attorneys’ fees in the amount of $16,414. |= CONCLUSION 12 For the reasons discussed in detail above, the Court hereby rules as follows: 13 (1) The Court GRANTS in part and DENIES in part the motion to seal (Docket No. 14 40) as supplemented. The Clerk’s Office is INSTRUCTED to unseal Docket Nos. 49, 51, 15 and 54. The Clerk’s Office is INSTRUCTED to otherwise leave sealed the subject 16 documents. Counsel must jointly file, no later than August 2, 2021, redacted versions of 17 the subject documents to account for the ruling made herein. 18 (2) The undersigned RECOMMENDS that Defendant’s motion to enforce settlement 19 (Docket No. 41) be GRANTED. 20 (3) The Court GRANTS in part and DENIES in part Defendant’s motion for sanctions 21 (Docket Nos. 41, 64). Plaintiff must pay Defendant its attorneys’ fees in the amount of 22 $16,414 by September 20, 2021. 23 IT IS SO ORDERED. 24 Dated: July 20, 2021 ,

6 Nancy J. Koppe\\__ United. States Magistrate Judge 27 28 24

1 NOTICE 2 This report and recommendation is submitted to the United States District Judge assigned 3 to this case pursuant to 28 U.S.C. § 636(b)(1). A party who objects to this report and 4 recommendation must file a written objection supported by points and authorities within fourteen 5 days of being served with this report and recommendation. Local Rule IB 3-2(a). Failure to file 6 a timely objection may waive the right to appeal the district court’s order. Martinez v. Ylst, 951 7 F.2d 1153, 1157 (9th Cir. 1991).

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