Xiangyuan (Sue) Zhu v. Countrywide Realty Co.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 18 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
XIANGYUAN (SUE) ZHU,
Plaintiff-Appellant,
v. No. 02-3087
(D.C. No. 00-CV-2290-KHV)
COUNTRYWIDE REALTY (D. Kan.)
COMPANY, INC.; MARC E.
BUNTING; ROBERT THOMAS;
CANDACE THOMAS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Xiangyuan (Sue) Zhu, proceeding pro se, challenges the district
court’s order adopting the magistrate judge’s recommendation to enforce a
settlement agreement reached through mediation. We affirm.
The underlying dispute involved a real estate transaction. The parties
attended a mediation session with a magistrate judge and reached a settlement
agreement on August 13, 2001. They advised the district court that the case was
settled and the settlement documents would be executed later. The court closed
the case administratively. Ms. Zhu changed her mind about settling and requested
leave to reopen the litigation. After a hearing, the magistrate judge recommended
that the motion to reopen be denied, the parties be ordered to execute the
settlement documents, and the case be dismissed with prejudice if Ms. Zhu failed
to execute the documents. After considering Ms. Zhu’s objections to the report
and recommendation, the district court denied her motion to reopen and directed
the parties to execute the settlement documents by January 4, 2002. Thereafter,
the court denied two motions to reconsider.
On appeal, Ms. Zhu claims (1) the district court should have separated the
mediation program from the court processes, (2) the judgment must be vacated
because the referral to the magistrate judge was not effected in accordance with
28 U.S.C. § 636(c), and (3) she is entitled to a jury trial on her claims because the
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mediated settlement is unconscionable, the terms of the settlement were never
communicated to her, and she did not agree to its terms. 1
As a threshold matter, we must determine whether the notice of appeal was
timely because the timely filing of a notice of appeal is mandatory and
jurisdictional. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203
(1988). Defendants maintain the time to file a notice of appeal began to run on
December 18, 2001, the date of the order denying leave to reopen the case.
However, final judgment was not entered until February 26, 2002. The notice of
appeal was thus timely filed on March 1, 2002, within thirty days after the
judgment was entered. See Fed. R. App. P. 4(a)(1)(A).
Ms. Zhu also challenges jurisdiction. First, she asserts subject-matter
jurisdiction is lacking because the federal court did not have power to force her to
sign the settlement documents. On the contrary, “[a] trial court has the power to
summarily enforce a settlement agreement entered into by the litigants while the
litigation is pending before it.” United States v. Hardage , 982 F.2d 1491, 1496
1
Ms. Zhu attempted to raise the following additional issues in her reply brief and
statement of supplemental authorities: (1) the statute of frauds voided the
settlement, (2) the settlement may violate the involuntary servitude clause of the
Thirteenth Amendment, (3) opposing counsel’s breach of confidentiality voided
the settlement, and (4) the mediated settlement improperly required her to waive
her minor daughter’s rights. We do not address non-jurisdictional issues raised
for the first time in a reply brief or subsequent filing. Stump v. Gates , 211 F.3d
527, 533 (10th Cir. 2000).
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(10th Cir. 1993). Next, she claims the district court was without jurisdiction after
the mediated settlement was placed on the record because, at that point, the action
was terminated administratively. However, the order itself contemplated future
actions, such as filing a stipulation of dismissal or a motion to reopen upon good
cause. R. Vol. 9, doc. 248. Ms. Zhu further avers that the court lacked personal
jurisdiction over her. But by filing this lawsuit, Ms. Zhu waived any claim of a
defect in the court’s personal jurisdiction over her. See Williams v. Life Sav. &
Loan , 802 F.2d 1200, 1202 (10th Cir. 1986). We thus have jurisdiction.
We review for an abuse of discretion a district court’s decision to enforce a
settlement agreement. Feerer v. Amoco Prod. Co. , 242 F.3d 1259, 1262 (10th Cir.
2001). Upon consideration of the parties’ briefs and the district court record, we
find no abuse of discretion.
Ms. Zhu contends it was improper for the same magistrate judge to serve as
both mediator and magistrate judge recommending that the mediated agreement be
enforced. She claims the magistrate judge breached confidentiality by revealing
settlement negotiations in addressing her motion to reopen. However, the
disclosure was necessary in order to respond to Ms. Zhu’s challenge to the
settlement agreement. See Pueblo of San Ildefonso v. Ridlon , 90 F.3d 423, 424
(10th Cir. 1996) (finding no violation of confidentiality rule where disclosure
necessary to respond to show cause order).
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We also reject Ms. Zhu’s claim that the district court’s orders are void
because she did not consent to proceed before a magistrate judge as required by
28 U.S.C. § 636(c). Her consent was not necessary because the magistrate judge
acted pursuant to 28 U.S.C. § 636(b)(1)(B), as stated in the November 8, 2001
report and recommendation. 2
See Garcia v. City of Albuquerque , 232 F.3d 760,
766 (10th Cir. 2000) (“Unlike 28 U.S.C. §636(c)(1), 28 U.S.C. § 636(b)(1)(B)
does not require the consent of the parties.”). More importantly, Ms. Zhu does
not claim the magistrate judge coerced her into a settlement. Therefore, this
claim does not provide a ground for relief.
Finally, we address Ms. Zhu’s argument that the mediated settlement was
unconscionable because the amount she was to receive was inadequate to cover
her medical expenses, let alone to compensate her for her loss of wages and
earning capacity, pain and suffering, and special expenses. She also claims she is
entitled to punitive damages. That Ms. Zhu believes she is entitled to these
damages does not mean she would be awarded them by a jury. One purpose of
a settlement is certainty in the outcome of the case. We cannot hold that the
settlement was unconscionable on the ground that Ms. Zhu later decided she was
2
The magistrate judge indicated he had jurisdiction “to determine the form of the
settlement documentation pursuant to 28 U.S.C. § 636(c).” R. Vol. 11, doc. 327,
at 2 n.2. Ms. Zhu does not challenge this determination. Rather, she challenges
the magistrate judge’s recommendations made pursuant to § 636(b)(1)(B).
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entitled to more money. Instead, we affirm the district court’s order to enforce
the settlement because the record demonstrates Ms. Zhu was represented by
counsel at the mediation conference, she understood the settlement terms, and she
agreed to them. R. Vol. 14, doc. 314, at 2, 17; see also id. Vol. 11, doc. 327, at 9
n.5 (clarifying that Ms. Zhu understood the settlement). Moreover, her testimony
at the hearing on her motion to reopen did not contradict her earlier statement that
she understood and agreed to the settlement, as discussed in the magistrate
judge’s thorough and comprehensive report and recommendation.
We AFFIRM . 3 The mandate shall issue forthwith.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
3
Ms. Zhu’s motion for oral argument is denied. Defendants’ motion to strike
plaintiff’s amended certificate of interested parties is denied as moot.
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