United States District Court, D. Nebraska
OCTAVIOUS JOHNSON, DEMETRIUS JOHNSON, JUAQUEZ JOHNSON, SHARON JOHNSON and SHEREE JOHNSON, individuals, Plaintiffs,
CITY OF OMAHA, a political subdivision, et al., Defendants.
E. STROM, United States District Court Judge.
matter is before the Court on defendants’ motion to
enforce the settlement agreement (Filing No. 143).
The plaintiffs filed a letter in response (Filing No.
149). After reviewing the motion, the
defendants’ brief and index of evidence,
plaintiffs’ letter, and the applicable law, the Court
finds as follows.
March 21, 2013, members of the Omaha Police Department were
present at 3321 Seward Street, Omaha, Nebraska, to address
unregistered automobiles located on the street. A dispute
arose between members of the Johnson family and officers on
the scene. One of the plaintiffs, Octavius Johnson
(“Octavius”), was restrained by Officer Bradley
D. Canterbury (“Canterbury”). During the
interaction between Octavius and Canterbury, Juaquez Johnson
(“Juaquez”) began filming the incident with a
video camera. The plaintiffs allege that Juaquez was
approached by officers and followed into the house on 3321
Seward Street. Demetrius Johnson (“Demetrius”) is
also alleged to have been filming the interaction on his cell
phone. When the officers entered the house, Demetrius claims
that he was restrained and that plaintiff Sharon
Johnson’s (“Sharon”) wheelchair was tipped
over by the officers. The Johnsons claim that Officer James
T. Kinsella (“Kinsella”) confiscated the memory
card and video camera that were used by Demetrius and Juaquez
to film the interaction.
members of the Johnson family filed this action against the
City of Omaha, the Omaha Police Department,  and several of
its current and former officers. This Court ruled that
bifurcation was appropriate in this case, and that separate
trials will be held on the individual defendant
officers’ liability claims and the policy claims
against the City of Omaha (Filing No. 75).
April 18, 2016, Magistrate Judge Zwart held a settlement
conference. (See Filing Nos. 137, 138, and 142). All
the plaintiffs were present at the conference with their
counsel. In addition, defendants’ counsel was present.
Magistrate Judge Zwart explained the process of a settlement
conference to the parties. Sharee Johnson made a statement on
behalf of the plaintiffs before the formal settlement
discussions began. The beginning and end of the settlement
conference was on the record.
p.m., Magistrate Judge Zwart went on the record to announce
that the parties had reached a resolution. (Id. at
13). Magistrate Judge Zwart explained that “after this
is on the record and all parties have made their statement on
the record that this is the settlement, that it is a full and
final settlement of the case and there will be no
renegotiation thereafter.” (Id. at 14, lines
Judge Zwart recited the terms of the settlement for the
The parties have agreed based upon the settlement conference
that I have attended and presided over today that the City
will pay an amount of $30, 000 to the plaintiffs and that is
$30, 000 to the plaintiffs as a group, not $30, 000 per
plaintiff but $30, 000 to the plaintiffs as a group, that
that $30, 000 will be in an offer to confess judgment -- oh,
no, it will be a judgment in that amount. The City has also
agreed that it will stipulate to pay $60, 000 toward
attorneys' fees, and so the judgment in this case would
be $30, 000 plus attorneys' fees to be decided by the
Court and that it will -- all parties will waive their costs
in this case for a total package from plaintiff -- or, excuse
me, from the defendant City in the total amount of no more
than $90, 000. The -- each of the individual defendants will
be dismissed with prejudice in this case.
(Id., lines 7-22). Mr. Mumgaard, attorney for the
defendants, explained that the settlement needs to go though
the City Council for a hearing and approval.
Plaintiffs’ counsel, Ms. Vogt, stated that the
settlement terms stated on the record were correct.
(Id. at 16).
Judge Zwart, on the record, asked each plaintiff individually
the following questions: (1) whether they were present and
participated in the settlement conference; (2) whether they
heard and understood the terms of the settlement; and (3)
whether they agreed to those terms (See Id. at
16-18). Each of the plaintiffs answered in the affirmative to
all of the questions. (Id.).
17, 2016, the City Council approved the resolution reached at
the settlement conference (Filing No. 145, Exhibit
2). The Johnson family objected at the City Council meeting
and wanted to back out of the settlement (Filing No.
145, Exhibit 9). The resolution was signed by the
Mayor on May 19, 2016 (Filing No. 145, Exhibit 2).
Counsel for the defendants hand-delivered a certified copy of
the resolution to the plaintiffs’ attorney, with a
cover letter, Rule 68 Offer of Judgment, Acceptance of the
Offer, Motion to Obtain a Judgment, a proposed Judgment
Order, Satisfaction of the Judgment, and a copy of the
City’s check drafted to pay the judgment amount.
(See Filing No. 145, Exhibits 2, 3, 4, 5,
6, 7, and 8).
defendants move this Court to enforce the settlement because
the plaintiffs have failed to execute the settlement
documents. The plaintiffs are challenging the settlement. The
plaintiffs do not feel that every issue was addressed at the
settlement conference. (See Filing No. 149,
at 2). The plaintiffs state three reasons why they are
challenging the settlement agreement. First, the plaintiffs
did not know that the settlement agreement would end the
entire case, because the case was bifurcated. (Id.
at 3). Second, the plaintiffs thought that they needed to
sign the settlement agreement to make it ...