Webb v. Thompson ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 16, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVID WEBB,
Plaintiff - Appellant,
v. No. 17-4048
(D.C. No. 1:11-CV-00128-DN-EJF)
TERRY L. THOMPSON; KEVIN (D. Utah)
MCCLEOD; KEVIN BURTON; FNU
WEST; FNU JOHNSON; FNU GATES;
FNU FLATT; JON J. GREINER;
TIMOTHY SCOTT; FNU MURRAY,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
_________________________________
Plaintiff-Appellant David Webb, appearing pro se, appeals from the dismissal
of his case following his entry into a settlement agreement with Defendants -
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Appellees after our remand in Webb v. Scott, 643 F. App’x 711 (10th Cir. 2016)
(unpublished). The parties are familiar with the facts and we need not restate them
here other than to say that two groups of defendants, the Ogden City defendants and
the Weber County defendants, settled with Mr. Webb after a settlement conference
conducted by a magistrate judge. Mr. Webb was represented by pro bono counsel
and signed a release of claims. The district court granted a motion to enforce the
settlement agreement, dismissed all claims against the two groups of defendants, and
entered a final judgment.
On appeal, Mr. Webb argues that he should not be bound by the settlement
agreement because of fraud by the parties and their attorneys and because he was
pressured to settle. He also seeks to reopen the district court’s grant of summary
judgment in favor of the Ogden defendants, which was certified as final and
ultimately resulted in our remand order.
Mr. Webb did not timely respond to the Ogden City defendants’ motion to
enforce the settlement agreement and the district court granted it. See DUCiv R 7-
1(d). Although he later argued that the district court lacked jurisdiction because he
filed a notice of appeal, that contention is plainly without merit; a non-appealable
order does not divest the district court of jurisdiction.
We evaluate the enforcement of a settlement agreement for an abuse of
discretion. United States v. Hardage, 982 F.2d 1491, 1495 (10th Cir. 1993). We find
no abuse of discretion here. The magistrate judge held a settlement conference, Mr.
Webb, represented by appointed counsel, agreed to the settlement terms, signed a
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release, and the terms of the settlement agreement were placed on the record. Mr.
Webb apparently changed his mind thereafter. Counsel circulated a proposed order
dismissing all claims with prejudice. Not surprisingly, the Ogden City defendants
moved to enforce the settlement agreement attaching Mr. Webb’s notice of appeal
and the claims that he makes here in one form or another.
AFFIRMED. Mr. Webb’s July 5, 2017 motion is denied. The Ogden City and
Weber County defendants’ motions for costs and attorney’s fees are granted. Fed. R.
App. P. 38. The matter is remanded to the district court for determining those costs
and fees.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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