UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
KHADIJA DUMA, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-0581 (PLF)
)
UNUM PROVIDENT, et al., )
)
Defendants. )
____________________________________)
OPINION
This matter is before the Court on plaintiff’s motion for rescission or, in the
alternative, for reformation of the voluntary dismissal of her claims against defendant Unum
Provident. Upon consideration of the parties’ papers, the relevant legal authorities, and the entire
record in this case, the Court will deny plaintiff’s motion.1
I. BACKGROUND
On April 4, 2008, plaintiff Khadija Duma filed this action pro se against
defendants Unum Provident, Fannie Mae, and three individually named defendants, “asserting a
broad panoply of claims under the Employment Retirement Income Security Act [“ERISA”], the
First Amendment, the Sarbanes-Oxley Act, civil RICO, and the anti-discrimination statutes.”
Memorandum Order at 1, May 4, 2009 (Robertson, J.). The central focus of plaintiff’s action
1
Among the papers reviewed in connection with the pending motion include the
following: plaintiff’s motion for rescission or, in the alternative, for reformation of the voluntary
dismissal of her claims against Unum Provident (“Mot.”); and Unum Provident’s opposition to
plaintiff’s motion (“Opp.”). Plaintiff did not file a reply.
was to obtain long term disability benefits from Unum Provident pursuant to an insurance policy
issued by Fannie Mae, plaintiff’s former employer, as part of an employee welfare benefit plan
governed by ERISA, 29 U.S.C. § 1000, et seq. See Memorandum Order at 1, May 4, 2009
(Robertson, J.). Plaintiff, however, also sought “pension payments, reimbursement for medically
related expenses after she left the employ of . . . Fannie Mae, the ‘full market value of [her] home
as appraised in 2005,’ damages of $10 million ‘for the harm [that defendants] have done to
[plaintiff and her] family,’ and a written apology from [the] three individual defendants who are
or were employed in the Fannie Mae legal department.” Id.
On May 4, 2009, Judge James Robertson issued a Memorandum Order dismissing
most of plaintiff’s claims. See Memorandum Order at 1-4, May 4, 2009 (Robertson, J.).
Specifically, Judge Robertson dismissed all of plaintiff’s claims except her ERISA claim against
Unum Provident and her Title VII claim against Fannie Mae. See id. at 3-4; see also
Memorandum at 1, May 29, 2010 (Robertson, J.). Judge Robertson then ordered that an attorney
from the Court’s Civil Pro Bono Panel be appointed to consult with plaintiff regarding the status
of her case and to provide her with legal representation, if appropriate. Memorandum Order at 4,
May 4, 2009 (Robertson, J.).
Soon thereafter, on May 21, 2009, attorneys Peter C. Lallas and Jeffrey Pariser of
Hogan & Hartson LLP (“Hogan & Hartson”) entered appearances on plaintiff’s behalf for the
limited purpose of mediation and possibly settlement.2 Mr. Lallas and Mr. Pariser then engaged
in settlement discussions with counsel for Unum Provident. Opp. at 2; see Mot. at 3-5. As a
2
Hogan & Hartson LLP and Lovells LLP recently merged. The firm is now known
as Hogan Lovells.
2
result, on September 4, 2009, plaintiff and Unum Provident reached a settlement agreement,
under which Unum Provident would pay plaintiff $10,000 “in full and final compromise and
settlement of all her claims against Unum . . . that were made or which might have been made
by” plaintiff. Opp. Ex. C, Settlement Agreement and General Release of Claims (“Settlement
Agreement and Release”) at 1, Sept. 4, 2009. That same day, pursuant to Rule 41 of the Federal
Rules of Civil Procedure, counsel for plaintiff and Unum Provident filed a stipulation of
dismissal that “dismiss[ed] this action with prejudice as to . . . Unum Provident only.” Rule 41
Stipulation of Dismissal (“Stipulation of Dismissal”) at 1, Sept. 4, 2009 (emphasis added). Four
days later, on September 8, 2009, plaintiff deposited the check issued by Unum Provident for
$10,000. Opp. Ex. D at 1, Sept. 8, 2009; see Mot. at 5.
On May 29, 2010, Judge Robertson dismissed plaintiff’s final outstanding claim
— the Title VII claim against Fannie Mae — on consideration of Fannie Mae’s motion to
dismiss and plaintiff’s written opposition. See Memorandum at 1-2, May 29, 2010 (Robertson,
J.); Order at 1, May 29, 2010 (Robertson, J.). Plaintiff filed a notice of appeal on June 7, 2010.
Then, on the following day, June 8, 2010, plaintiff filed the motion at issue, requesting rescission
or, in the alterative, reformation of the voluntary dismissal of plaintiff’s claims against Unum
Provident.3 Because this motion was filed within twenty-eight days of Judge Robertson’s final
order, the court of appeals, on its own motion, held plaintiff’s appeal in abeyance pending this
Court’s disposition of plaintiff’s motion. See Order of the United States Court of Appeals for the
District of Columbia Circuit at 1, Nov. 15, 2010.
3
On June 14, 2010, after Judge Robertson’s retirement, this case was randomly
reassigned to the undersigned.
3
Plaintiff’s motion rests on two grounds. First, plaintiff claims that Hogan
& Hartson had a conflict of interest in this case that they failed to promptly disclose to her. See
Mot. at 1. Specifically, plaintiff contends that Hogan & Hartson did not immediately inform her
that Unum Provident’s lead counsel, David E. Constine, had a brother, Jonathan A. Constine,
who was a partner at Hogan & Hartson at the time that Hogan & Hartson represented her in this
case. Mot. at 1; see Opp. at 2. Plaintiff thus alleges that the “[f]ailure by Hogan and Hartson to
make that disclosure before [she] accepted them as pro bono counsel affected material facts of
the representation Hogan and Hartson provided to [her].” Mot. at 2. Second, plaintiff claims that
she was under duress and coercion when she signed the Settlement Agreement and Release and
that she never agreed to a voluntary dismissal “with prejudice” of her claims against Unum
Provident. Id.
Unum Provident opposes plaintiff’s motion. It argues that plaintiff’s motion
should be denied because the signed Settlement Agreement and Release “provides Unum with a
complete defense to any potential claim by [p]laintiff.” Opp. at 2. Moreover, Unum Provident
argues that there was no conflict of interest and that plaintiff fails to establish duress as a matter
of law. Id.
II. LEGAL STANDARD
Counsel for plaintiff and Unum Provident filed a Stipulation of Dismissal with
prejudice on September 4, 2009. Nine months later, on June 8, 2010, plaintiff filed her motion
for rescission or, in the alternative, for reformation. A motion to alter or amend a judgment
under Rule 59(e) of the Federal Rules of Civil Procedure must be filed “no later than 28 days
4
after the entry of judgment.” FED . R. CIV . P. 59(e). By contrast, a motion for relief from a
judgment or order under Rule 60(b) must, for certain claims, be filed within one year or, for
others, be filed “within a reasonable time.” FED . R. CIV . P. 60(c)(1). Unum Provident thus
contends that plaintiff’s motion — filed nine months after the filing of the Stipulation of
Dismissal with prejudice — is governed by Rule 60(b). See Opp. at 2. The Court does not
agree. As the court of appeals’ order suggests, this motion is properly analyzed as a Rule 59(e)
motion to alter or amend a judgment.
Rule 41 of the Federal Rules of Civil Procedure provides that a “plaintiff may
dismiss an action without a court order by filing: . . . a stipulation of dismissal signed by all
parties who have appeared.” FED . R. CIV . P. 41(a)(1)(A)(ii) (emphasis added). The law is clear
that “entry of such a stipulation of dismissal is effective automatically and does not require
judicial approval.” In re Wolf, 842 F.2d 464, 466 (D.C. Cir. 1988) (internal quotations and
citations omitted). Except as provided under Rule 41(a)(1), however, “an action may be
dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.”
FED . R. CIV . P. 41(a)(2) (emphasis added). The Stipulation of Dismissal in this case was signed
only by plaintiff’s counsel and Unum Provident’s counsel — not by Fannie Mae — and it
purported to “dismiss this action with prejudice as to . . . Unum Provident only.” Stipulation of
Dismissal at 1.
Although the parties agreed to dismiss the action against one defendant in the case
on September 4, 2009, there was no final order in the case until May 29, 2010. While the
Settlement Agreement and Release constituted a binding contract when signed on September 4,
2009, the claims and the defendant to which they relate were not effectively dismissed until
5
Judge Robertson implicitly approved the stipulation in his final order. Accordingly, the parties’
Stipulation of Dismissal falls under Rule 41(a)(2) and therefore was not a legally effective
dismissal of the claims against Unum Provident until Judge Robertson issued his final order on
May 29, 2010. It follows that because plaintiff filed her motion on June 8, 2010 — within
twenty-eight days of Judge Robertson’s final order — plaintiff’s motion is a timely Rule 59(e)
motion to alter or amend a judgment. See FED . R. CIV . P. 59(e); see also Order of the United
States Court of Appeals for the District of Columbia Circuit at 1, Nov. 15, 2010 (citing FED . R.
CIV . P. 59(e)).
A motion to alter or amend a judgment “under Rule 59(e) is discretionary with the
court and need not be granted unless the Court finds that there is ‘an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.’” MDB Communications, Inc. v. Hartford Cas. Ins. Co., 531 F. Supp. 2d 75,
79 (D.D.C. 2008) (quoting Ciralsky v. Central Intelligence Agency, 355 F.3d 661, 671 (D.C. Cir.
2004)). “Rule 59(e) motions to alter or amend judgment are ‘not to be used to relitigate matters
already argued and disposed of; they are intended to permit the court to correct errors of fact
appearing on the face of the record, or errors of law.’” Id. (quoting Independent Petroleum Ass’n
of America v. Babbitt, 178 F.R.D. 323, 324 (D.D.C. 1998)). “Such motions are ‘disfavored and
relief from judgment is granted only when the moving party establishes extraordinary
circumstances.’” Id. (quoting Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 28
(D.D.C. 2001)).
6
III. DISCUSSION
Plaintiff alleges that Hogan & Hartson had a conflict of interest that the firm
failed to promptly disclose to her. See Mot. at 1. Plaintiff contends that her attorneys were
“obligated from the outset to disclose the relationship between [Unum Provident’s lead counsel,
David Constine,] and his brother,” Jonathan Constine, a partner at Hogan & Hartson. Id. at 2.
According to plaintiff, this familial relationship created an inherent conflict of interest, requiring
plaintiff’s informed consent. See id. Thus, because Hogan & Hartson allegedly failed to disclose
this familial relationship until approximately two months after attorneys for Hogan & Hartson
entered their appearances on plaintiff’s behalf, the firm allegedly engaged in “misrepresentation
and possibly fraud.” Id.
Plaintiff’s claim lacks merit. The District of Columbia Rules of Professional
Conduct provide that
[a] lawyer related to another lawyer as parent, child, sibling, or
spouse shall not represent a client in a representation directly
adverse to a person who the lawyer knows is represented by the
other lawyer except upon informed consent by the client after
consultation regarding the relationship.
D.C. R. PROF’L CONDUCT 1.8(h). This “disqualification,” however, “is personal and is not
imputed to members of firms with whom the lawyers are associated.” D.C. R. PROF’L CONDUCT
1.8 cmt 15; see also id. 1.7 cmt. 12 (“Disqualification arising from a close family relationship is
not imputed.”). Although Jonathan Constine was in fact a partner at Hogan & Hartson at the
time that the firm represented plaintiff in this case, Unum Provident has produced undisputed
affidavits establishing that Mr. Constine “had no involvement in that representation and did not
participate in that representation in any way whatsoever.” Opp. Ex. A, Jonathan A. Constine Aff.
7
¶ 4, June 22, 2010; see also Opp. Ex. B., Albert W. Turnbull Aff. ¶ 4, June 21, 2010. Plaintiff
has not suggested anything to the contrary. The Court therefore rejects plaintiff’s conflict of
interest claim as it is clearly contrary to established rules of professional conduct.4
Plaintiff also has alleged that she was under duress and coercion when she signed
the Settlement Agreement and Release and that she never agreed to a voluntary dismissal “with
prejudice.” Mot. at 5. Specifically, plaintiff alleges that her attorneys sent a notary public to her
home with the Settlement Agreement and Release and that the notary public then coerced
plaintiff into signing the agreement without giving her the opportunity to read it. See id. Then,
plaintiff alleges that her attorneys “did not have [her] agreement or permission” to dismiss her
claims against Unum Provident “with prejudice.” Id.
“[D]uress is any wrongful threat of one person by words or other conduct that
induces another to enter a transaction under the influence of such fear as precludes him from
exercising free will and judgment . . . .” Dyer v. Bilaal, 983 A.2d 349, 360 (D.C. 2009)
(alteration in original) (internal quotations and citations omitted). “Absent a showing of fraud or
duress, parties are bound by the agreements that they sign, without regard to whether they regret
their decisions after the fact.” Johnson v. Penn Camera Exch., 583 F. Supp. 2d 81, 86 (D.D.C.
2008).
The Court finds that there is no evidence that plaintiff’s execution of the
Settlement Agreement and Release was a product of anything other than her own free will.
4
In addition, according to plaintiff’s own allegations, Hogan & Hartson did in fact
disclose the familial relationship between Jonathan Constine and David Constine “approximately
two months after [her attorneys] had several detailed conversations with” her, Mot. at 2,
presumably in July of 2009. This disclosure was two months before plaintiff signed the
Settlement Agreement and Release, and accepted and deposited the $10,000 check.
8
Plaintiff admits, as she must, that she signed the Settlement Agreement and Release, providing
that “Unum will pay to Duma the total sum of Ten Thousand Dollars and Zero Cents . . . in full
and final compromise and settlement of all her claims against Unum . . . that were made or
which might have been made by Duma . . . .” Settlement Agreement and Release ¶ 1 (emphasis
added); see also id. at 7 (“The parties acknowledge that the execution of this instrument confirms
the termination of any rights Duma had or may have had . . . and any claims arising out of or
related to her claims for ERISA benefits.”). Plaintiff asserts, however, that she “was not allowed
to read [the Settlement Agreement and Release] before signing it” because the notary allegedly
“made that impossible.” Mot. at 6.5 This bare, unsworn allegation comes nowhere near the
standard for a claim of duress. And even assuming that plaintiff was under duress, her claim fails
because she acknowledges that she subsequently read the Settlement Agreement and Release, see
Mot. at 6, and she then accepted and deposited the settlement check for $10,000; she then waited
nine months to file the motion at issue here. See Schmidt v. Shah, 696 F. Supp. 2d 44, 63
(D.D.C. 2010) (“‘[I]t is . . . well-established that a victim of duress may be held to have ratified
the agreement by accepting its benefits.’”) (alteration in original) (quoting Wright v. Foreign
Serv. Grievance Bd., 503 F. Supp. 2d 163, 174 (D.D.C. 2007)); Goldstein v. S & A Rest. Corp.,
622 F. Supp. 139, 145 (D.D.C. 1985) (“While delay in disaffirming a contract may preclude
avoidance of the contract’s operation, . . . the acceptance of benefits under the contract
necessarily bars denial of its validity.”).
5
The Settlement Agreement and Release signed by plaintiff expressly states that
she “carefully read and fully understands all of the provisions,” Settlement Agreement and
Release ¶ 9, and that she was “under no form of duress” when she signed the agreement and
release. Id.
9
With respect to plaintiff’s claim that she never authorized her attorneys to dismiss
her claims against Unum Provident “with prejudice,” Mot. at 5, neither plaintiff nor Unum
Provident has submitted affidavits or declarations concerning conversations between plaintiff and
her counsel about what the Stipulation of Dismissal would say. And the Settlement Agreement
states that upon execution of the agreement and release, an agreed dismissal order would be filed
with the Court “dismissing all claims asserted by Plaintiff in the Lawsuit against Unum . . . .”
Settlement Agreement and Release ¶ 2. It does not say whether the dismissal would be with or
without prejudice.
Nevertheless, as an initial matter, the Court doubts very much that Unum
Provident’s counsel would have advised their client to settle this case and pay Ms. Duma
$10,000 unless Ms. Duma’s claims against Unum Provident were to be dismissed with prejudice.
See Healey v. Labgold, 271 F. Supp. 2d 303, 305 (D.D.C. 2003) (“[D]ismissals with prejudice
are a matter of course in settlement agreements. Why settle a case, pay good money, and leave
oneself exposed to another lawsuit?”). More important, in the Settlement Agreement and
Release, Ms. Duma expressly agreed to “fully, finally and forever settle and release all of the
claims against Unum.” Settlement Agreement and Release ¶ 4 (emphasis added). Given this
clear statement of finality and the overall breadth of the language in the Settlement Agreement
and Release, see id. at 1 (“[T]he parties each desire to resolve and put an end to any
disagreements or disputes between them arising out of any of the matters aforesaid and to settle
any and all claims of Duma which may now exist or have existed in the past.”) (emphasis
added); see also id. ¶ 4 (“[T]he execution of this Agreement shall be and remain in effect as a full
and complete release of the claims asserted in the Lawsuit against Unum . . . .”), any reasonable
10
person would interpret the Settlement Agreement and Release as an agreement to dismiss this
case against Unum Provident with prejudice.
The Court concludes that plaintiff has not established any “‘extraordinary
circumstances’” entitling her to relief under Rule 59(e) of the Federal Rules of Civil Procedure.
MDB Communications, Inc. v. Hartford Cas. Ins. Co., 531 F. Supp. 2d at 79 (quoting
Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d at 28).6
IV. CONCLUSION
For the foregoing reasons, plaintiff’s motion for rescission or, in the alternative,
for reformation of the voluntary dismissal of her claims against defendant Unum Provident
[Dkt. No. 56] will be DENIED. An Order consistent with this Opinion shall issue this same day.
SO ORDERED.
/s/
PAUL L. FRIEDMAN
DATE: March 22, 2011 United States District Judge
6
As discussed, the Court analyzed plaintiff’s motion under Rule 59(e) instead of
Rule 60(b). “[T]he standards that govern Rule 60(b) are even more restrictive.” Taitz v. Obama,
Civil Action No. 10-0151, 2010 WL 4985895, at *1 (D.D.C. Dec. 9, 2010). Thus, plaintiff’s
motion would similarly fail if analyzed under the more restrictive standard of Rule 60(b).
11