                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

___________________________________
                                   )
BRYAN H. SIMMS,                    )
                                   )
          Plaintiff,               )
                                   )
          v.                       ) Civ. Action No. 08-177 (RWR)
                                   )
BALL STREET VENTURES, LLC, et al., )
                                   )
          Defendants.              )
___________________________________)


                         MEMORANDUM OPINION

     On December 24, 2008, the parties executed a settlement

agreement under which the defendants jointly and severally

promised to pay the plaintiff a sum of $650,000, with interest,

in three installments.   The settlement agreement, endorsed by the

court on December 31, 2008, provides that the court retains

jurisdiction over this action for the limited purpose of

enforcing the payment provisions of the parties’ settlement

agreement.   On March 11, 2009, after the defendants missed the

first two installment payments, the plaintiff’s motion to enforce

the settlement agreement was granted and the defendants were

ordered to pay amounts owed within twenty-four hours of the

court’s order.

     The defendants have moved to modify the March 11, 2009 order

requiring payment within twenty-four hours, arguing that

defendants’ companies are in serious financial debt and that
                                -2-

individual defendant Davis is in the process of refinancing and

restructuring assets to pay the settlement amount within a

reasonable time period.   Simms has moved for entry of judgment in

the amount of all payments due to the plaintiff under the

parties’ settlement agreement, alleging that despite the court’s

previous order, the defendants have made no payments under the

settlement agreement.   The defendants oppose entry of judgment,

arguing that factual claims related to the defendants’ ability to

pay that preclude summary enforcement of the settlement

agreement.

     Where “a binding settlement bargain is conceded or shown,”

and “there is no factual dispute and no legal defense to

enforcement,” the court may summarily enforce a settlement

agreement.   Autera v. Robinson, 419 F.2d 1197, 1200 (D.C. Cir.

1969); see Kukla v. Nat’l Distillers Products Co., 483 F.2d 619,

621 (6th Cir. 1973) (noting that “the authority for a District

Court’s entry of final judgment incorporating the terms of a pre-

trial settlement agreement rests under neither [Federal Rule of

Civil Procedure] 56 nor Rule 16[,]” but “such judgment is in the

nature of a judgment by consent, . . . authorized under what has

been consistently recognized as the trial court’s inherent power

to summarily enforce settlement agreements entered into by

parties” (internal citation and quotation marks omitted)).   In

this case, the defendants concede that there is a binding
                                -3-

settlement agreement between the parties.   (Defs.’ Opp’n at 2.)

Under the settlement agreement, “in the event of any default in

making any payment by its due date . . . the Settlement Payment

shall accelerate and be immediately payable in full[,]” and

“unpaid principal and accrued interest shall accrue late fees at

the rate of 15% per annum.”   The defendants have also conceded

that they failed to pay timely the first required payment, which

under the settlement agreement’s acceleration clause, made the

entire settlement amount immediately payable with interest and

late fees.   Nor do the defendants dispute the plaintiff’s

representation that no payments have been made under the

settlement agreement.   To the extent that the defendants now

contend that judgment cannot be entered until a hearing has been

held on the defendants’ ability to pay, they have not established

the relevance of their ability to pay as defense to enforcement

of their unambiguous and undisputed contractual obligation.

Accordingly, because there is no factual dispute or legal bar to

enforcement of the settlement agreement, the plaintiff’s motion

for entry of judgment will be granted, and the defendants’ motion

to modify the March 11, 2009 order will be denied.   An

appropriate order accompanies this memorandum opinion.

     SIGNED this 14th day of May, 2009.


                                       /s/
                               RICHARD W. ROBERTS
                               United States District Judge
