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Ismail v. DS Smith PLC

United States District Court for the Eastern District of Pennsylvania

June 19, 2019, Decided; June 19, 2019, Filed

CIVIL ACTION NO. 18-2881 JLS

Opinion

REPORT AND RECOMMENDATION

I. Relevant Procedural History

On October 30, 2018, the Honorable Jeffrey S. Schmehl referred this matter to the undersigned for the "purpose of scheduling and conducting a settlement conference". (Doc 13) That conference took place on April 3, 2019 and resulted in a settlement of all claims by the plaintiff against the defendant. The terms of settlement were placed on the record, the plaintiff was questioned concerning the terms of settlement and agreed to the terms of [*2]  settlement. The Court then entered an order under Rule 41.1 (b) dismissing the case with prejudice and retaining jurisdiction for a period of 90 days from that date for enforcement of settlement. (Doc 28) Thereafter, plaintiff refused to sign a settlement agreement which was prepared by the defense and reviewed and approved by plaintiff's counsel. Counsel for the plaintiff and counsel for the defendant jointly requested that the court enforce the terms of settlement by a joint letter dated May 21, 2019 which was placed on the record. (Doc 30). The request for enforcement was within the 90 days set in the Rule 41.1 (b) order. This Court has jurisdiction.

II. Plaintiff's Reasons for Not Signing the Settlement Agreement and the Court's Findings of Fact

A hearing was held on Counsels' joint request to enforce the settlement on June 3, 2019. The plaintiff, Hesham Ishmael was placed under oath and took the stand and was allowed to testify in the narrative concerning his reasons for refusing to sign the settlement agreement. At various points in time during his testimony the court asked specific questions.

The plaintiff contended that his attorney, Timothy Kolman lied to him regarding his chances for recovery in this [*3]  particular action during the mediation which took place on April 3, 2019. The court notes that the undersigned was present for many of the conferences that Mr. Kolman had with the plaintiff during the mediation. Defense counsel and defense representatives were not present in these sessions which were confidential. Plaintiff contended at the hearing that his attorney incorrectly told him that he would not be able to get future damages and would only get back pay and that he would not be able to have counsel fees awarded in this case. He readily acknowledged that he was asked by the Court if he agreed to the terms of settlement and understood that the amount of the settlement was a gross figure which was inclusive of counsel fees and costs. He admitted that he said he understood that but that it was based upon improper advice given by his attorney. He also acknowledged that when I asked him if he had adequate time to speak with his attorney he said "yes" and he agreed that he was well represented by counsel.

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2019 U.S. Dist. LEXIS 103414 *; 2019 WL 7041895

HESHAM ISMAIL, Plaintiff vs. DS SMITH PLC, et al, Defendant

Subsequent History: Appeal terminated, 10/10/2019

Adopted by, Request granted, Objection overruled by Ismail v. DS Smith Holdings, Inc., 2019 U.S. Dist. LEXIS 218702 (E.D. Pa., Dec. 19, 2019)

Adopted by, Objection overruled by, Request granted, Request denied by, Settled by Ismail v. Ds, 2020 U.S. Dist. LEXIS 1520 (E.D. Pa., Dec. 19, 2019)

CORE TERMS

settlement, costs, terms, settlement agreement, undersigned, attorney's fees, lawyers, colloquy, reasons