United States District Court, D. Colorado
ORDER GRANTING JOINT MOTION FOR APPROVAL OF
SETTLEMENT AND DISMISSAL
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE
the Court is the parties' Joint Motion for Approval of
Settlement and for Dismissal (the “Motion”). (ECF
No. 22.) The parties submitted a revised Settlement Agreement
and Release (the “Settlement Agreement”) for the
Court's consideration on November 1, 2018. (ECF No. 24.)
For the reasons discussed below, the Court grants the Motion
and dismisses the action with prejudice.
11, 2018, Plaintiff Daimeon Mosley (“Mosley”)
filed this action against Defendant Ross Dress for Less, Inc.
(“Ross”) for declaratory and injunctive relief
alleging violations of Title III of the Americans with
Disabilities Act of 1990, 42 U.S.C. §§ 12181 et
seq. (“ADA”). (ECF No. 1.) Mosley has
permanent paralysis and requires assistance of a mobility
device. (Id. ¶ 7.) Ross is a clothing store
with locations at 7506 E. 36th Ave., Denver CO, 80238; 150 S.
Abilene St., Aurora, CO, 80012; and 455 S. Wadsworth Blvd.,
Lakewood, CO, 80226 (collectively, the “Stores”).
(Id. ¶ 18.) Mosley alleges that he encountered
barriers at the Stores in violation of the ADA and its
implementing regulations. (Id.)
August 2, 2018, the parties filed the present motion asking
the Court to approve the Settlement Agreement, retain
jurisdiction to enforce the Settlement Agreement, and dismiss
the case. (ECF Nos. 22; 24.) The parties conditioned the
Settlement Agreement on Court approval of the same. (ECF No.
24 at 4-5.) Ross agrees to entry of the Settlement Agreement
but denies any liability, act of wrongdoing, or violation of
the ADA. (Id. at 4.) Under the terms of the
Settlement Agreement, Ross agrees to make modifications to
the Stores to increase accessibility within twelve months of
the effective date of the settlement. (Id. at 2,
7-8.) Ross also agrees to pay Plaintiff's attorneys'
fees and costs. (Id. at 4.) In return, Mosley agrees
to release any claims against Ross related to the Stores
arising under Title III of the ADA. (Id. at 3.) The
parties seek dismissal with prejudice. (ECF No. 22 at 1.)
Motion states that the parties move to dismiss under Rule
41(b). (ECF No. 22 at 1.) Subsection (b) governs involuntary
dismissal by a defendant when a plaintiff fails to prosecute
or comply with the procedural rules or a court order.
Fed.R.Civ.P. 41(b). The Court thus construes the joint motion
as one under Rule 41(a)(1)(A)(ii) because it is signed by all
parties who have appeared in the case.
stipulation of dismissal under Rule 41(a)(1)(A)(ii) is
typically self-executing and strips the court of jurisdiction
over the merits. De Leon v. Marcos, 659 F.3d 1276,
1283 (10th Cir. 2011). However, in certain cases, the Court
may retain jurisdiction over a case “to enable a court
to function successfully, that is, to manage its proceedings,
vindicate its authority, and effectuate its decrees.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 380 (1994); McKay v. United States, 207
Fed.Appx. 892, 894 (10th Cir. 2006). Thus, “[i]f the
parties wish to provide for the court's enforcement of a
dismissal-producing settlement agreement, they can seek to do
so, ” and dismissal under Rule 41(a)(1)(A)(ii)
conditioned on court approval and retention of jurisdiction
is not self-executing. Kokkenen, 511 U.S. at 381. In
such a case, “the court is authorized to embody the
settlement contract in its dismissal order or, what has the
same effect, retain jurisdiction over the settlement
contract[ ] if the parties agree.” Id. at
381-82. Courts have acknowledged their ability to retain
jurisdiction over settlement agreements in ADA cases where
the parties have asked the court to do so. See,
e.g., Disability Advocates & Counseling Grp.,
Inc. v. E.M. Kendall Realty, Inc., 366 Fed.Appx. 123,
125 (11th Cir. 2010); K.C. ex rel. Erica C. v.
Torlakson, 762 F.3d 963, 967 (9th Cir. 2014).
Court has reviewed the Motion and Settlement Agreement. The
parties request that dismissal be conditioned on the
Court's retention of jurisdiction over the parties'
settlement agreement. (ECF No. 24 at 4-5.)
of the foregoing, the Court finds that an order dismissing
all claims asserted by Mosley against Ross should be entered.
The Court expressly retains jurisdiction over the
parties' Settlement Agreement (ECF No. 24), the terms of
which are hereby incorporated into this Order. Therefore, the
Court GRANTS the Motion and all claims are hereby ...