UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

CHARNITA PROCTOR,
Plaintiff,

V- Civil Action N0. 17-1966 (CKK)

CAPITAL ONE, N.A., et al.,
Defendants.

 

 

REDACTED MEMORANDUM OPINION
(January 25, 2019)

Currently pending are Plaintiff Charnita Proctor’s [60] Motion to Stay the Court’s August
24, 2018 Order (“Motion to Stay”), and her sealed [59] Motion to Alter or Arnend. Upon
consideration of the briet`ing,1 the relevant legal authorities, and the record as a Whole, the Court
shall exercise its discretion to GRANT Plaintiff’ s Motion to Stay nunc pro tunc and to DENY her
Motion to Alter or Amend.
I. BACKGROUND
The Court recently discussed the history of these settlement proceedings in sealed and

redacted versions of its August 24, 2018, decision, Which the Court expressly incorporates into

 

l The Court’s consideration has focused on the following documents:
0 Pl.’s Mot. to Stay the Ct.’s Aug. 24, 2018 Order, ECF No. 60 (“Mot. to Stay”);

0 Mem. in Supp. of Pl.’s Mot. to Alter or Amend, ECF No. 59-1 (“Pl.’s Mem.”); and

0 Opp’n to Pl.’s Mot. to Alter or Amend, ECF No. 6l-l (“Def.’s Opp’n”).

Plaintiff did not take the opportunity to file a reply in support of her Motion to Alter or Amend.
The time for such a reply has elapsed.

this Memorandum Opinion.2 See Unredacted Mem. Op., ECF No. 56 (“Aug. 24, 2018 Opinion”),
at 1-4; Redacted Mem. Op., ECF No. 5 8, at 1-4. The Court likewise incorporates prior decisions
on April 3, 2018 and August 15, 2018, that are important to understanding the current posture.
Unredacted Mem. Op., ECF No. 52 (“Aug. 15, 2018 Opinion”); Am. Unredacted Mem. Op., ECF
No. 38 (“Apr. 3, 2018 Opinion”).

In brief, the Court previously found that Plaintiff entered into an oral settlement agreement
with Defendants Capital One, N.A. and Capital One Auto Finance, Inc. (collectively, “Capital
One”) on November 8, 2017, that Capital One then put into writing and Plaintiff refused to sign.
See, e. g. , Apr. 3, 2018 Opinion (flnding settlement and instructing edits to proposed written
version). The parties’ subsequent filings ostensibly concerned the scope of the written agreement,
but further reinforced the Court’s impression that Plaintiff has regrets about the settlement in
general Only the tail end of these proceedings requires revisiting further.

In its August 24, 2018, decision, the Court evaluated the last of a series of Status Reports,
joint and otherwise, regarding issues with the proposed written version of the settlement
agreement Reiterating its finding that the parties had orally settled this matter, the Court instructed
certain edits to the proposed written agreement to conform to the Court’s understanding of the oral

version. Specifically, Paragraph 5 of the written agreement should state that Ms. Proctor will

release claims “_
_”

Aug. 24, 2018 Opinion at 7.

 

2 The Court has not, and shall not now, discuss proceedings involving former Defendants Liberty
Mutual Auto And `Home Services, LLC and Liberty Mutual Group, each of whom Plaintiff
voluntarily dismissed with prejudice. Stipulation of Voluntary Dismissal Pursuant to F.R.C.P.
Rule 41(a)(1)(A)(ii), ECF No. 46.

On August 31, 2018, Plaintiff filed her Motion to Stay, which requests a stay of the Court’g
Order that she execute, by the same date, a version of the settlement agreement that includes the
aforementioned language. See Unredacted Order, ECF No. 55. Capital One has filed an opposition
only to the Motion to Alter or Amend, not to the Motion to Stay. The time for further briefing
having elapsed, these motions are now ripe for decision.

II. LEGAL STANDARD
A. Motion to Stay

“[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants. How this can best be done calls for the exercise of judgment, which
must weigh competing interests and maintain an even balance.” Air Line Pilots Ass’n v. Miller,
523 U.S. 866, 879 n.6 (1998) (quoting Landis v. North Am. Co., 299 U.S. 248, 254-55 (1936))
(internal quotation marks omitted); see also Clinton v. Jones, 520 U.S. 681, 706-07 (1997) (“The
District Court has broad discretion to stay proceedings as an incident to its power to control its
own docket.”). A party requesting a stay of proceedings “must make out a clear case of hardship
or inequity in being required to go forward, if there is even a fair possibility that the stay for which
he prays will work damage to some one else.” Landis, 299 U.S. at 255.

B. Motion to Alter or Amend

Pursuant to Federal Rule of Civil Procedure 59, “[a] motion to alter or amend a judgment
must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). “Under
Rule 59(e), the court may grant a motion to amend or alter a judgment under three circumstances
only: (l) if there is an ‘intervening change of controlling law’; (2) if new evidence becomes

available; or (3) if the judgment should be amended in order to ‘correct a clear error or prevent

manifest injustice.”’ Leia'os, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018)
(quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam)). Circuit
precedent makes clear that despite the trial court’s “considerable discretion” in resolving such a
motion, granting it is “an extraordinary measure.” Id. (citing Firestone, 76 F.3d at 1208). The
movant must not attempt to “relitigate old matters,” nor “present a new legal theory that was
available prior to judgment.” Ia'. (quoting, respectively, Exxon Shipping Co. v. Baker, 554 U.S.
471, 485 n.5 (2008);3 Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012))
(internal quotation marks omitted).
III. DISCUSSION
A. Motion to Stay

On August 24, 2018, the Court ordered Plaintiff to execute, by August 31, 2018, a revised
written version of the parties’ oral settlement agreement that includes certain specified release
language. See Unredacted Order, ECF No. 55; Aug. 24, 2018 Opinion. On August 31, Plaintiff
sought a stay to allow the Court to address her Motion to Alter or Amend without potentially
prejudicing a contemplated appeal of the Court’s August 24 decision.4

Plaintiff does not acknowledge that she filed her Motion to Stay while the case stood
dismissed without prej udice. See Unredacted Order, ECF No. 55 (ordering dismissal “WITHOUT
PREJUDICE until AUGUST 31, 2018, when the matter shall, without further order, stand
dismissed WITH PREJUDICE” (emphasis omitted)). But the Court shall construe her request as

attempting to revive this case, at least long enough for the Court to decide her Motion to Alter or

 

3 Leidos, Inc. mistakenly attributes the fifth note in Exxon Shipping C0. to page 486, rather than
485.

4 To justify her request for a stay, Plaintiff invokes Federal Rule of Civil Procedure 62(b), but she
has not provided the bond or other security referenced there, nor has she furnished other legal
support for invoking this rule.

Amend.

The Court need not decide whether refusing the stay would in fact interfere with Plaintiff s
appeal rights, as she fears. In order to permit this Court to efficiently address her Motion to Alter
or Amend and dispose of this case, the Court shall assume, arguendo, that declining the stay would
work a hardship to Plaintiff. Accordingly, the Court shall, in an exercise of its discretion, GRANT
Plaintiff` s Motion to Stay nunc pro tunc.

Plaintiff’ s obligation to execute a revised version of the settlement agreement is
retroactively deemed stayed until the issuance of the accompanying Order. As this Memorandum
Opinion shall discuss, that Order requires Plaintiff to go ahead and execute the agreement.

B. Motion to Alter or Amend

Plaintiff asks the Court to alter or amend its August 24, 2018, decision because the Court
has committed a “clear error of law,” and further action is necessary to “prevent a manifest
injustice.” Pl.’s Mem. at 1 (quoting Firestone, 76 F.3d at 1208; citing Fed. R. Civ. P. 59(e)). She
alleges four errors: (l) the Written release language is too broad; (2) the December 2017 and June
2018 tradeline disputes are not part of her original claims that she orally released; (3) she did not
delay execution of the written settlement agreement; and (4) the Court must hold an evidentiary
hearing to resolve a material dispute about the scope of her oral release. The Court shall address
these issues comprehensively, albeit in somewhat different order, and find that Plaintiff" s
arguments are too little and/or too late. See Exxon Shipping Co. , 554 U.S. at 485 n.5; Patton Boggs
LLP, 683 F.3d at 403.

Under contract law in this jurisdiction,5 an oral agreement, like any other contract, can only

 

5 The Court observes again that both parties have urged the application of District of Columbia
law. Apr. 3, 2018 Opinion at 2; Aug. 24, 2018 Opinion at 4 n.2. The proposed written version of

5

be enforced if it is “sufficiently definite as to its material terms . . . that the promises and
performance to be rendered by each party are reasonably certain.” Dujj§) v. Dujjfv, 881 A.2d 630,
634 (D.C. 2005) (quoting Aj’ordable Elegance Travel, Inc. v. Worldspan, L.P., 774 A.2d 320, 327
(D.C. 2001)) (internal quotation marks omitted). The Court has found that a release of claims was
a material term of the parties’ oral settlement agreement Apr. 3, 2018 Opinion at 2-3 (citing
Blackstone v. Brl'nk, 63 F. Supp. 3d 68, 77 (D.D.C. 2014)). Although the Court required the parties
to tailor several iterations of proposed release language to exclude claims unrelated to the 2010
auto loan at issue, and to exclude any hypothetical disputes about the loan that_do not concern the
tradeline, those edits simply adjusted the proposed written agreement to the Court’s understanding
of the actual scope of the parties’ oral agreement. See Apr. 3, 2018 Opinion at 4; Aug. 24, 2018
Opinion at 6-7; see also Blackstone, 63 F. Supp. 3d at 81-82 (“[W]hile the general agreement to
release Plaintiffs’ claims against Defendant . . . was a material element of the settlement agreement,
the specific language of the release form was not.” (citation omitted)).

Moreover, the Court has found that both parties intended to be bound by their oral
settlement agreement, satisfying the other prong of an enforceable contract. See, e.g. , Apr. 3, 2018
Opinion at 4-5; Dujjj), 881 A.2d at 636-37 (citing Jack Baker, Inc. v. Ojj‘ice Space Dev. Corp., 664
A.2d 1236, 1238 (D.C. 1995)); Aug. 24, 2018 Opinion at 4 (citing Um'ted States v. Mahoney, 247
F.3d 279, 285 (D.C. Cir. 2001); Samra v. Shaheen Bus. & Inv. Grp., Inc., 355 F. Supp. 2d 483,
494 (D.D.C. 2005)).

The Court has determined that the parties orally agreed to a release of certain claims. The

scope of that release can be characterized as follows: Ms. Proctor will release claims “-

 

the settlement agreement itself likewise expressly contemplates interpretation under D.C. law.
[Proposed] Confidential Settlement Agreement and Release of Claims, ECF No. 54-2, 11 11.

6

_" Aug. 24, 2018 Opinion at 7. But in response to

Plaintiff’ s Motion to Alter or Amend, the Court shall once again discuss the scope of the parties’
agreement, any need for an evidentiary hearing, and the next steps in effectuating their settlement

1. Scope of Release of Claims

In light of the record, the Court finds that the scope is conclusively resolved by a
declaration that Plaintiff previously submitted In Part B of that declaration, she identifies the
parameters of a “_” to which she agreed. Decl. of Chamita Proctor, ECF
No. 54-2. The Court shall painstakingly walk through each paragraph of Part B to demonstrate
that its prior decisions in this matter are consistent with her assent.

In Paragraph 19, Plaintiff states, ‘“_
_"’ She implicitly affirms that she did agree to a release of some scope. That
release is limited to claims in the lawsuit. Of the claims in Plaintiff’s Complaint,6 the relevant one
is Count Five, which alleges that Capital One violated 15 U.S.C. § l681s-2(b), part of the Fair
Credit Reporting Act. That count alleges, inter alia, that Capital One “fail[ ed ] to fully and properly
respond to the Plaintijj"s disputes,” and “fail[ed] to delete or modijj) the disputed information after
it investigated Plaintij’s disputes.” Compl., ECF No. 1-1, 1[11 55-56 (emphasis added) (citing 15
U.S.C. § 1681s-2(b)(l)(A)-(E)). Plaintiff`s agreement to release this and other claims in the

lawsuit is consistent with the Court’s release language. In particular, Ms. Proctor will release

claims _ By entering into this

 

6 Technically, the Complaint includes a reference to class action in its title, despite the absence of
any class action allegations in the body of the Complaint. For efficiency, the Court simplifies the
title for purposes of this Memorandum Opinion. The Court does not deal here with claims related
to defendants with whom Plaintiff already has settled, nor with claims that are not at issue in the
Motion to Alter or Amend.

release, Plaintiff gives up her claims in the Lawsuit relating to investigation of disputes and

subsequent deletion or modification of the disputed information

Plaintiff next declares in Paragraph 20 that “_
_” This appears re be a reference re

Plaintiff` s tradeline disputes in December 2017 and June 2018_before and shortly after her May
28, 2018, declaration The Court has agreed that certain aspects of those disputes are beyond the
scope of this lawsuit, and therefore outside the scope of the settlement See Aug. 24, 2018 Opinion
at 4-6 (finding that December 2017 dispute involved a credit card account, and June 2018 dispute
addressed “other furnishers” besides Capital One, as well as one or more Capital One tradelines
other than 2010 auto loan).

However, some aspects of the December 2017 and June 2018 disputes do pertain to this
lawsuit: In both disputes, Plaintiff sought prompt deletion of the tradeline for the 2010 auto loan.
See id. But the Court has found that neither of those disputes constitutes a “future claim.” Rather,
it has determined that “neither ‘claim’ is distinct from the claims in her underlying lawsuit, which
she has agreed to settle.” Id. at 4. Accordingly, Plaintiff has not identified any future claim she
purportedly has that would be released by the Court’s written release language. The Court’s

release language is consistent with Plaintiff’ s agreement to release claims in this lawsuit: She will

release claims that _
_” The “-” language prevents Plaintiff from relitigating,

under different guise, the claims she has already agreed to settle. The part about “_
_" prevents Plaintiff from litigating tradeline-related aspects of the December
2017 and June 2018 disputes, which the Court has determined are part-and-parcel of the claims in

the lawsuit. Even Plaintiff’s claim that Capital One had a duty to investigate in response to her

December 2017 and June 2018 disputes is subsumed within her release of claims, because this
investigatory claim is in her lawsuit, at Count Five. See Pl.’s Mem. at 3-5 (claiming duty to
investigate regardless of pending settlement); Compl., ECF No. 1-1, 1111 49-58 (alleging violations
of duty to investigate). Capital One was not obligated to investigate a tradeline that it had agreed

to delete, pending Plaintiff’s signature of the written settlement See Aug. 24, 2018 Opinion at 5.

In Paragraph 21 of her declaration, Plaintiff states that "‘_

_” As discussed above, the December 2017 and June 2018 disputes do not
constitute future claims, to the extent that they concern the 2010 auto loan. lt is not clear whether
Plaintiff has in mind any other violations of the 2010 auto loan. The Court has already tailored
the release language to permit Plaintiff to pursue “any other claims relating to the 2010 auto loan
that do not pertain to the credit dispute discussed in the Complaint, and do not pertain to the
subsequent credit disputes attributable solely to the pendency of Plaintiff’ s signature of the
settlement agreement.” Aug. 24, 2018 Opinion at 6-7 (indicating that new language will not
“preclude any hypothetical claims relating to the Loan that are not encompassed by claims
presently reflected in the Lawsuit”). Moreover, if and when the settlement is effectuated, the
tradeline regarding the 2010 auto loan will be deleted. If Capital One were to notify credit agencies
again of this tradeline, then Capital One would be in violation of the settlement agreement, and
Plaintiff would be able to terminate the agreement See Pl.’s Mem. at 2-3 (raising concern along
these lines); [Proposed] Confidential Settlement Agreement and Release of Claims, ECF No. 54-

2, 11 9 (permitting termination by nonbreaching party).

Plaintiff confirms in Paragraph 22 that _
_” Here is definitive prccf

that Plaintiff agreed to a release of specific claims. In the absence of further information, the Court
is not aware of the specific content of the September 2016 dispute, but the Court has reason to
believe that it concerns the subject matter of Count Five, which Plaintiff has agreed to release.
Capital One characterized her release quite broadly in an email shortly after the oral agreement
See Capital One’s Sealed Mem. in Supp. of Their Mot. to Enforce Settlement, Ex. A, ECF No. 42-
1 (summarizing agreement as containing “_
-”). In the ensuing email exchange, Plaintiff did not object to Capital One’s characterization
Although subsequent proceedings have narrowed the written version, Plaintiff’ s failure to object
to the broad characterization corroborates the finding that Plaintiff agreed to release claims in this

lawsuit, including Count Five.

By contrast, Plaintiff indicates in Paragraph 23 that "‘_

-” The Court is unaware of any such disputes other than the December 2017 and June 2018
disputes. Again, to the extent that the December 2017 and June 2018 disputes concern the 2010
auto loan at issue, they are not separate claims. To the extent that those disputes do not concern
the 2010 auto loan, then the Court’s written release language does not preclude Plaintiff from

pursuing them outside of this lawsuit

In Paragraph 24, Plaintiff represents that “_
_" This is a natural interpretation of the settlement

discussions and negotiations, and fully consistent with this Court’s written release language. The

fact that Plaintiff was negotiating about claims that “_" in this lawsuit

10

supports the Court’s finding that she agreed to release present and future claims relating to this

lawsuit and the subject tradeline.

In Paragraph 25, Plaintiff indicates that “_
_’ Which is the date cf the parties’

oral agreement Correspondingly, the Court’s release language waives the claims that existed as
of the parties’ oral agreement It also requires waiver of future “claims” related to the lawsuit or
the subject tradeline, because the Court finds that any such “claims” are not distinct from the claims
that existed as of the parties’ November 8, 2017, agreement Plaintiff did not agree to settle any
future claims that truly are distinct from the Lawsuit and the subject tradeline_and any such

hypothetical claims fall outside the scope of the release.

Plaintiff similarly states in Paragraph 26 that “_
_" The Ccurt is unaware cf any chld-be

claims in this lawsuit that arose after November 8, 2018. Given that this declaration was filed
before that date, the Court assumes that Plaintiff made a typo in her declaration and intends to refer
to 2017, or perhaps 2016. But the Court’s treatment of her prior statements above deals with the

corresponding implications

In Paragraph 27, Plaintiff states that “_

Through a series of decisions, the Court has made clear indeed that her release does not apply to
any claims except those associated with the 2010 auto loan at issue. See Apr. 3, 2018 Opinion at
3-4 (settlement does not concern “three charged-off credit cards”); Aug. 15, 2018 Opinion at 4-6

& n.4 (settlement does not concern 2015 auto loan or any other loan except 2010 auto loan).

11

In Paragraphs 28 and 29, Plaintiff avers, respectively, that '_
_ and that “-

_” This simply confirms the Court’s prior findings that claims based on credit cards and a
2015 auto loan are beyond the scope of the release,

2. Anv Neod for an Evidcntiarv Hearirlg

 

In light of Plaintiff’ s declaration and the proceedings as a whole, the Court again finds that
an evidentiary hearing is not necessary to confirm the existence and scope of this release.7 See,
e.g., Aug. 24, 2018 Opinion at 3-4 (citing Mahoney, 247 F.3d at 285; Samra, 355 F. Supp. 2d at
494 (identifying “clear and convincing evidence” standard for approval of settlement)). The Court
need not hear testimony from either Capital One or Plaintiff because the Court is convinced that
there is no “genuine dispute about whether the parties have entered into a binding settlement.”
Mahoney, 247 F.3d at 285. Simply put, they have settled.

For its part, Capital One proposed the initial written release language Since then, the Court
has been tailoring that proposed language to accord with the parties’ intent in their oral agreement
As best the Court can recall, Capital One has never argued that claims related to either the three
credit cards or the 2015 auto loan were within the scope of the release. See, e.g., Apr. 3, 2018
Opinion at 3-4 (conceding that credit cards were not discussed). In any event, Capital One has not

contested the Court’S determination that such claims were outside the scope of the release, nor has

 

7 The Court did hold a hearing about the scope of the settlement before issuing its first decision in
this matter. See Apr. 3, 2018 Opinion at 1 & n.1; Min. Order of Feb. 20, 2018. Through that
hearing, the Court confirmed that Plaintiff obj ected to the “putative scope” of the release, “arguing
that it pertains only to a specific auto loan from Capital One.” Apr. 3, 2018 Opinion at 1.
Subsequent proceedings have affirmed Plaintiff’s understanding, and so does the release language
approved by the Court

12

it contested the Court’s adjustment of the written release language to reflect this determination
Likewise, most recently, Capital One did not object when the Court tweaked the written language
to permit any present or future claims related to the 2010 auto loan that are not part of this lawsuit
See Aug. 24, 2018 Opinion at 6-7. There is nothing material left to learn from Capital One, so live
testimony is not necessary.

Moreover, Plaintiff`s positions on the release are set forth in her declaration That
declaration confirms that Plaintiff agreed to release the claims in her Complaint Among those
claims is Count Five, where Plaintiff alleges that Capital One failed to investigate disputes of her
2010 auto loan tradeline and failed to delete the tradeline afterwards Plaintiff`s release of those
claims is reflected in the written release language. Accordingly, Plaintiffs testimony is not
necessary either.

In a footnote, Plaintiff again requests that the Court apply a summary judgment standard
because the Court has resolved some of these issues based in part on materials outside of the
Complaint See Pl.’s Mem. at 8 n.2 (citing Carroll v. Fremont Inv. & Loan, 636 F. Supp. 2d 41,
46 (D.D.C. 2009)). But the Court previously rejected her request Aug. 15, 2018 Opinion at 2 n.3.
Carroll, the non-binding authority once again urged by Plaintiff, relies on inapposite Circuit
precedent See Carroll, 636 F. Supp. 2d at 46 (citing Marshall Cty. Health Care Auth. v. Shalala,
988 F.2d 1221, 1226 (D.C. Cir. 1993)). That precedent dictates the proper treatment in certain
circumstances of a motion to dismiss_not a motion to enforce settlement~_that relies on materials
extraneous to a complaint Marshall Cty. Health Care Auth., 988 F.2d at 1226 (“[W]hen a district
court is not sitting as an appellate court and the district judge looks outside the complaint to factual
matters, he or she must convert a motion to dismiss into a motion for summary judgment” (citation

omitted)). Plaintiff furnishes no persuasive authority for applying the same treatment to Capital

13

One’s [17] Motion to Enforce Settlement The Court can perform its essentially equitable function
of assessing the settlement agreement even if the parties dispute certain facts and without
converting the Motion to Enforce Settlement into a motion for summary judgment See Samra,
355 F. Supp. 2d at 493 (citing, e.g., Hensley v. E.R. Carpenter Co., lnc., 633 F.2d 1106, 1110 n.5
(5th Cir. 1980); Quijano v. Eagle Maint. Servs., Inc., 952 F. Supp. 1, 3 (D.D.C. 1997)).

Although the Court technically resolved the Motion to Enforce Settlement on April 3, 2018,
the subsequent proceedings have focused on tying loose ends in the release language. Because the
Court has not found a material factual dispute amidst those loose ends about whether the parties
settled this matter, no evidentiary hearing was or is now necessary. See Aug. 24, 2018 Opinion at
3-4 (citing Mahoney, 247 F.3d at 285; Samra, 355 F. Supp. 2d at 494).

Plaintiff’ s Motion to Alter or Amend has not disturbed the Court’ s prior finding that Capital
One has “carried the burden of proving the existence of` a settlement agreement by clear and
convincing evidence.” Apr. 3, 2018 Opinion at 2 (quoting Sainra, 355 F. Supp. 2d at 494) (internal
quotation marks omitted); Aug. 24, 2018 Opinion at 4. The written version of that settlement
agreement_with the required revision to the release_must now be executed. Plaintiff` s apparent
second thoughts about entering into the oral agreement lack recourse now. See, e.g., Blackstone,
63 F. Supp. 3d at 83 (collecting cases) (“[B]uyer’s remorse does not vitiate a demonstrated initial
intent to be bound by the settlement agreement.”).

3. Effectuating the Settlement

Plaintiff also objects to the way that Capital One has approached the oral settlement See
Pl.’s Mem. at 5. Because Capital One has not conceded any wrongdoing, it has refrained from
performing its obligations under the Settlement until Plaintiff executes the written version Aug.

24, 2018 Opinion at 5. Such a contingent performance is consistent with Capital One’s email

14

summary of the agreement right after the parties orally concluded it See Capital One’s Sealed
Mem. in Supp. of Their Mot. to Enforce Settlement, Ex. A, ECF No. 42-1 (indicating that Capital
One’s performance Was “_" with certain terms).
Plaintiff did not object to this characterization during the email exchange that followed.

The Court did not err when it characterized Plaintiffs litigation tactics as delaying the
execution of the written settlement agreement8 See Aug. 24, 2018 Opinion at 5 (making this
comment); Pl.’s Mem. at 5 (raising the objection). lt is true that the language has been finessed
through these proceedings. Those adjustments were generally favorable to Plaintiff, as they
limited the scope of the written waiver. But all of them were necessitated by Plaintiff s belated
yet persistent efforts to poke holes in an oral settlement that this Court has recognized Those
efforts must finally be put to rest

Once the settlement is signed by both sides, Capital One shall notify the credit agencies to
delete the tradeline at issue, among its other obligations under the settlement If Capital One does
not follow through on its end of the agreement then Plaintiff would have the right to terminate the
settlement and litigate the claims that she had otherwise released. See [Proposed] Confidential
Settlement Agreement and Release of Claims, ECF No. 54-2, 11 9.

IV. CONCLUSION

For the foregoing reasons, the Court shall GRANT Plaintiff’ s Motion to Stay nunc pro
tunc and shall DENY her Motion to Alter or Amend.
The parties shall execute a revised version of the written settlement agreement that reflects

an edit to Paragraph 5 such that Plaintiff, Ms. Proctor, will release claims "‘_

 

8 Even if the Court had misconstrued Plaintiff`S method of conducting this litigation, that error
would be immaterial and harmless. The required edits to the release language are based on the
Court’s understanding of the parties’ oral agreement in November 2017, not on Plaintiff’ s
litigation tactics since then `

15

_" Plaintiff and Defendant Capital One

shall execute the settlement agreement containing that language by FEBRUARY 1, 2019.

The Court finds no further need for adjudication of this case. Accordingly, the Court shall
again observe that this case is DISMISSED. See Aug. 24, 2018 Opinion (dismissing case with
prejudice as of August 31, 2018).

An appropriate Order accompanies this Memorandum Opinion.

Dated: January 25, 2019

/s/
COLLEEN KOL'LAR-KOTELLY
United States District Judge

 

16

