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77 Construction Co. v. Uxb International, Inc.

United States District Court, W.D. Virginia, Roanoke Division

March 4, 2015



GLEN E. CONRAD, Chief District Judge.

Pending before the court is a motion filed by defendant UXB International, Inc. ("UXB") entitled a "Motion to Enforce Settlement Agreement and for Summary Judgment on Settled Claims." Dkt. No. 127. UXB argues that the parties reached a settlement agreement during a February 6, 2014 settlement conference and requests that the court enforce the terms of that agreement and compel plaintiff's performance under it. In the alternative, UXB requests summary judgment on those disputed issues in the underlying litigation that would have been resolved or rendered moot by the Settlement Agreement. See Dkt. No. 128 at 2.

In response, plaintiff 77 Construction Company ("77 Construction") "admits it entered into a Settlement Agreement" and "concedes it has not been able to substantially complete its obligations before November 24, 2014, when UXB filed its motion."[1] But it argues that UXB's motion should nonetheless be denied on several grounds. For example, it contends that the period for performance is not expressly stated in the settlement agreement and thus that it is not technically in breach. Relatedly, 77 Construction argues that it has performed and that UXB should not be excused from performing its obligations under the agreement. In the alternative, 77 Construction contends that the settlement is not a complete or enforceable contract because it was an agreement to negotiate at a later time. Finally, 77 Construction argues that summary judgment is not an appropriate remedy because UXB has not established the absence of disputed material facts.

Just as it offers arguments in the alternative, 77 Construction also asks for relief in the alternative. First, it requests that the court find the agreement enforceable, and grant an additional 90-day stay and enter an amended scheduling order so that the parties can perform under it. In the alternative, it requests that the court find the settlement is not complete or enforceable and restore the case back on the docket for litigation. As to both options, it additionally requests that the court deny UXB's motion for summary judgment.

For the reasons set forth herein, the court concludes that the agreement between the parties is a mere agreement to agree and is not an enforceable settlement as to the claims between them. Accordingly, the court will deny UXB's motion to enforce the agreement and its motion for summary judgment.


In general terms, this case involves a dispute between a government contractor, UXB, and one of its sub-contractors, 77 Construction, over work performed by 77 Construction at Bagram Air Base in Afghanistan, where UXB had a contract with the United States government to provide for mine clearance and other related projects. 77 Construction argues that it is entitled to payment for work it performed under its contract with UXB. UXB counters that 77 Construction submitted invoices for work using improper billing practices and otherwise submitted invoices that were not properly documented as required by its contract and by applicable government regulations. See generally Dkt. No. 39 at 1-3 (prior memorandum opinion addressing a motion to quash and setting forth basic background of case). UXB has also filed a counterclaim.

In January 2014, the parties had filed motions for summary judgment and a number of other motions, including motions relating to experts, and argued those motions before Senior United States District Judge James C. Turk, to whom this case was assigned. At the time, the case was set for trial beginning February 5, 2014. At the parties' request, Judge Turk postponed the trial and referred the case to mediation before United States Magistrate Judge Robert S. Ballou, who conducted a settlement conference on February 6, 2014.

At the conclusion of the settlement conference, the magistrate judge had the parties and counsel confirm certain agreements on the record, and a court reporter transcribed that portion of the mediation. When he began, the magistrate judge stated,

We have convened today for the purposes of a mediation. The parties have worked very hard and reached an agreement today to resolve some matters and to continue to work to resolve other matters. We wanted to memorialize this agreement on the record today, understanding that the lawyers will be putting together a more formal agreement later on. But the purpose of putting this on the record is to have an enforceable agreement coming out today.

Dkt. No. 116, Transcript ("Tr.") at 3.

He then proceeded to set forth the terms of the agreement. In pertinent part, the parties agreed to the following terms:

1. the parties will agree to a 90-day stay of the litigation (with court approval) during which time: (a) the parties will jointly request that the Army Corps of Engineers provide a position regarding the invoices disallowed by UXB; and (b) UXB will not make "its final certification of costs under the prime contract unless directed to do so by the corps or by ...

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