United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT
MARRIOTT HOTEL SERVICES, INC. d/b/a WAIKIKI BEACH MARRIOTT
RESORT & SPA'S MOTION TO ENFORCE SETTLEMENT
Richard L. Puglisi United States Magistrate Judge.
the Court is Defendant Marriott Hotel Services, Inc. d/b/a
Waikiki Beach Marriott Resort & Spa's Motion to
Enforce Settlement Agreement (“Motion”). ECF No.
67. Defendant requests that the Court enforce a settlement
agreement allegedly entered into between the parties
following private mediation on October 4, 2018. Id.
Plaintiff filed his Opposition to the Motion on April 1,
2019. ECF No. 78. Defendant filed its Reply on April 8, 2019.
ECF No. 79. An evidentiary hearing on this matter was held on
April 11, 2019, at 10:00 a.m. Sharon V. Lovejoy, Esq., T.
Reid Coploff, Esq., by telephone, and Sara L. Faulman, Esq.,
by telephone, appeared on behalf of Plaintiff. Eileen C.
Zorc, Esq. appeared on behalf of Defendant. Following the
hearing, the Court directed the parties to submit
supplemental declarations, which were filed on April 17,
2019, and April 24, 2019. ECF Nos. 85, 88. After careful
consideration of the submissions of the parties, the
arguments of counsel, and the record established in this
action, the Court FINDS AND RECOMMENDS that Defendant's
Motion be GRANTED.
on the evidence submitted by the parties, the Court makes the
following findings of fact.
action, Plaintiff asserts individual claims for violation of
the Americans with Disabilities Act (“ADA”) and
individual and collective claims under the Fair Labor
Standards Act (“FLSA”). See ECF No. 1.
The parties engaged in private mediation on October 4, 2018.
See ECF No. 67-2, Decl. of Eileen C. Zorc, ¶ 2;
ECF No. 78-1, Decl. of T. Reid Coploff, ¶ 3. The parties
did not reach an agreement during the mediation session, but
the mediator indicated that she would send a proposal to both
parties and that both parties would have an opportunity to
accept the proposal. Zorc Decl. ¶ 3; Coploff Decl.
¶ 4. The mediator emailed counsel for both parties on
October 14, 2018, with a proposal. Zorc Decl. ¶ 4;
Coploff Decl. ¶ 5. The proposal, excluding the specific
dollar amounts, contained the following “global
● for the ADA claim, $ to Mr. Dharia and $ for
attorney's fees and costs;
● for the [FLSA]/Wage class claim, $ for qualified
claimants and $ for attorney's fees and costs; the time
period covered by these payments for qualified claimants,
shall be January 5, 2012 to January 4, 2018;
● Marriott shall pay for any medical or pension
shortfall in Mr. Dharia's accounts caused by their
failure to make payments while Mr. Dharia was not working;
● Marriott shall be responsible and pay for the claims
administration of the [FLSA]/Wage class claim;
● Payment for the ADA settlement will be made no later
than 30 days after execution of a settlement agreement that
will be initially drafted by Marriott; and
● the settlement agreement shall include
○ any other normal settlement provisions including
releases and indemnifications.
If BOTH of you agree to the terms above, I will let you know
collectively that you have a settlement. If any one
of you indicates NO agreement, I will let you know
collectively that you do not have a settlement. I will not
disclose any parties' position unless you BOTH respond
ECF No. 67-3 at 1-2.
The mediator then sent an email to counsel for both parties
on October 18, 2018, with clarifications to her first email.
ECF No. 67-4. The clarifications were as follows:
The ‘qualified claimants' to whom I referred
included Supervisors and GSAs who did not get paid for
‘linger longer' and ‘upgrade' bonuses.
___ the settlement agreement for the ADA case, should also
include ‘no admissions re ...