D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)

D’Agostino v. Federal Ins. Co., 969 F.Supp.2d 116 (2013)
969 F.Supp.2d 116
United States District Court,
D. Massachusetts.
Miia C. D’AGOSTINO, Plaintiff,
v.
FEDERAL INSURANCE COMPANY, et al.,
Defendants.
Civil Action No. 12–11628–DJC. | Sept. 10, 2013.
Synopsis
Background: Beneficiary of trust brought action in state court
against insurer of real property owned by trust, claiming that
insurer breached its contractual obligations by failing to pay
all of the amounts due under the policy. Insurer removed suit
to federal court. Thereafter insurer moved to enforce the
settlement agreement allegedly reached by parties, and parties
filed cross-motions for sanctions.
Holdings: In adopting report and recommendation of United
States Magistrate Judge Dein, the District Court, Denise J.
Casper, J., held that:
[1]
although insured made property insurer a valid offer of
settlement of insurance dispute, and insurer’s response to the
offer was timely, the response was a counteroffer, which was
never accepted in full by the insured, and therefore, there was
no enforceable settlement agreement;
[2]
sanctions against property insurer were not warranted on
basis of insurer’s failure to confer with insured before filing
her motions for protective order; and
[3]
imposition of sanctions against insured’s counsel were not
warranted.
Motions denied.
West Headnotes (10)
[1]
Compromise and Settlement
Enforcement
Court has an inherent power to supervise and
enforce settlement agreements entered into by
parties to an action pending before the court.
Cases that cite this headnote
[2]
Enforcement
Party to a settlement agreement may seek to
enforce the agreement’s terms when the other
party refuses to comply.
[3]
Contracts
Offer and acceptance in general
Contracts
Acceptance varying from offer
In order to form a contract under
Massachusetts law, an offer must be matched
by an acceptance; a counteroffer proposing a
term that is materially different from that
contained in the original offer constitutes a
rejection of the offer and negates any
agreement.
[4]
Contracts
Certainty as to Subject-Matter
Contracts
Necessity of assent
While it is not required that all terms of the
agreement be precisely specified, and the
presence of undefined or unspecified terms
will not necessarily preclude the formation of
a binding contract under Massachusetts law, in
order for an enforceable contract to exist, the
parties must have reached an agreement on all
of the essential terms.
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1

[5]
Contracts
Offer and acceptance in general
Under Massachusetts law, an offer is the
manifestation of willingness to enter into a
bargain made in such a way as to justify the
other person in understanding that his assent
will conclude the agreement.
[6]
Contracts
Acceptance of Offer and Communication
Thereof
Under Massachusetts law, court must look to
the objective facts and conduct of the parties
in assessing the timeliness of an acceptance of
an offer.
[7]
Insurance
Requisites and Validity of Settlement or
Release
Although insured made property insurer a
valid offer of settlement of insurance dispute,
and insurer’s response to the offer was timely,
the response was a counteroffer, which was
never accepted in full by the insured, and
therefore, there was no enforceable settlement
agreement under Massachusetts law; although
release sent by insurer was consistent with
insured’s offer to the extent it provided for a
$1.15 million payment to insured and the
release of insured’s claims against insurer, it
contained numerous additional material terms
beyond those set forth in the insurer’s
settlement offer as the release contained
provisions which had not been included in the
original offer, and which sought to impose
significant obligations upon the insured such
as strict confidentiality requirements,
including an obligation to forfeit the entire
amount of the $1.15 settlement payment if
insured were to violate its terms, even absent
evidence of any harm to the insurer, and an
indemnity provision. Restatement (Second) of
Contracts § 59.
[8]
Necessity of writing
In Massachusetts, absence of a written
contract alone is not sufficient to defeat
enforcement of a settlement agreement.
[9]
Federal Civil Procedure
Failure to respond; sanctions
Sanctions against property insurer were not
warranted on basis of insurer’s failure to
confer with insured before filing her motions
for protective order; insurer had a good faith
basis for its assertion that the parties entered
into a binding settlement agreement, and its
decision to resist insured’s efforts to obtain
further discovery, and to await a ruling from
court before complying with insured’s
demands for additional information were
justified.
[10]
Dismissal, vacation and default judgment
motions
Sanctions motions
While the wisdom of seeking a default against
property insurer at a time when its motion to
enforce a settlement agreement was pending
was questionable, imposition of sanctions
against insured’s counsel were not warranted;
furthermore, insurer’s decision to seek
sanctions on basis for insured’s motion for
default was not improper given insured’s
repeated indications that the parties were at
least on the verge of completing a settlement,
and therefore insured was not entitled to

reimbursement of attorney fees incurred in
connection with insurer’s sanctions motion.
Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A.
Attorneys and Law Firms
*118 Yvonne W. Chan, Brian W. Cook, Anthony M. Feeherry,
Jennifer Locke, Goodwin Procter, LLP, Alexandra R. Power,
Melick, Porter & Shea, LLP, Jennifer C. Sheehan, Hamel,
Marcin, Dunn & Reardon, P.C., Boston, MA, for Defendants.
Richard A. Goren, Boston, MA, for Plaintiff.
Opinion
DENISE J. CASPER, District Judge.
The Court, pursuant to 28 U.S.C. § 636(b)(1), has made a de
novo determination of those portions of the Report &
Recommendation of June 17, 2013 (Dein, J.), D. 63, and
specific proposed findings or recommendations to which the
Defendant Federal Insurance Company (“Federal”) has
objected. In making this determination, the Court has
considered Federal’s objections, D. 78, and D’Agostino’s
reply to those objections, D. 83.
Federal raises no objections regarding the recommendations
about the denial of sanctions, but does object to both to the
magistrate judge’s legal conclusion that the parties had not
reached a settlement agreement and certain factual findings
made in that analysis.
This Court agrees with the magistrate judge’s legal analysis
and ultimate conclusion that Federal’s February 6, 2013 e-mail
attaching its seven-page release was not an acceptance of
D’Agostino’s settlement, but a counteroffer that was never
accepted by D’Agostino despite Federal’s objections to
contrary. D. 78 at 6–13. D’Agostino’s settlement offer of
January 17, 2013 proposed settlement for $1.15 million, a
release from Ms. D’Agostino, the retention of D’Agostino’s
ability to continue to litigation against Bank of America and,
significantly, took issue with Federal’s suggestion that she
should indemnify the insurer from any claims the bank may
make. D. 63 at 6. The February 6, 2013 response attached a
release that included not only such a provision, stated in
general terms, and, aside from other standard contract
provisions, also contained a detailed confidentiality provision
that, if D’Agostino violated, she would forfeit the settlement
amount as liquidated damages. D. 63 at 11–12. That is, as of
February 6, 2013, the parties had not reached a meeting of the
minds about the material terms of the agreement, where
Federal’s release included at least one term that was contrary
to D’Agostino’s offer and, given this difference, it cannot be
said that the subsequent conduct was merely to memorialize
an *119 agreement already reached as was the situation in
Hansen v. Rhode Island’s Only 24 Hour Truck & Auto Plaza,
Inc., 962 F.Supp.2d 311, 315–16, Docket No. 12–cv–10477–
NMG, 2013 WL 2491054, at *4 (D.Mass. June 7, 2013), a
recent case upon which Federal relies in its objections, or that
they were subsidiary to the material terms of an agreement
already reached as Federal now contends. D. 78 at 2.
This Court also rejects Federal’s objections to several of the
magistrate judge’s factual findings. This Court concludes that
the factual findings made by the magistrate judge regarding
the course of negotiation between the parties was neither
unsupported nor incomplete. First, that D’Agostino’s counsel
was still reviewing the Release (for possible revision) does not
negate the judge’s conclusion that the plaintiff had not yet
accepted the February 6th counteroffer. Second, the magistrate
judge’s paraphrasing of D’Agostino’s counsel’s affidavit that
he had informed Federal on February 15th that the release was
not acceptable when in fact he referenced the agreement is not
material where the release was to be part of the parties’
agreement and contained the terms to which the parties would
be bound. Third, the objection to the magistrate judge’s
characterization of abandonment of post-counteroffer
settlement efforts by plaintiff does not change the ultimate
conclusion because, even if, as Federal contends, D’Agostino
had not completely abandoned settlement efforts, this Court
still agrees with the analysis that there was a counteroffer and
no acceptance of that counteroffer as discussed above. Fourth,
that the parties may have contemplated involving a neutral
third party to finalize the release cuts both ways and does not
make Federal’s position more persuasive; i.e., it is equally
supportive of the view, consistent with the magistrate judge’s
ultimate conclusion, that the parties had not yet reached an
enforceable agreement, but might negotiate to one with the aid
of a neutral arbiter as it is of Federal’s position that it
evidenced the parties’ intention to finalize an agreement
already reached.
For all of these reasons and having considered these objections
and having rejected them for the reasons stated, the Court
ADOPTS the Report and Recommendation and DENIES the
emergency motion to enforce the settlement agreement (D.
27), DENIES the motions for protective orders (D. 25 and D.
26) and DENIES the parties’ respective motion and request for
sanctions and fees (D. 55). (Hourihan, Lisa)
REPORT AND RECOMMENDATION ON
DEFENDANT’S EMERGENCY MOTION TO ENFORCE
SETTLEMENT AGREEMENT AND ORDER ON

DEFENDANT’S MOTIONS FOR PROTECTIVE ORDER
AND FOR SANCTIONS
DEIN, United States Magistrate Judge.
I. INTRODUCTION
The plaintiff, Miia C. D’Agostino (“D’Agostino”), was the
sole beneficiary of the Bruno D’Agostino Trust (“Trust”),
which owned a multifamily residential property located at 72–
74 Lexington Avenue in Cambridge, Massachusetts (the
“Property”). The Property was insured under the terms of a
policy (“Policy”) that had been issued by the defendant,
Federal Insurance Company (“Federal”), to Bank of
America, N.A. (“Bank of America” or “Bank”), the trustee of
the Trust. On December 9, 2008, the Property sustained
substantial damage as a result of a fire. Although Federal made
certain payments to the plaintiff in order to compensate her for
losses sustained as a result of the fire, the parties were unable
to reach an agreement *120 regarding the amount of additional
compensation, if any, to which D’Agostino is entitled under
the Policy. Accordingly, D’Agostino brought the instant action
against Federal, claiming that the defendant breached its
contractual obligations by failing to pay all of the amounts due
under the Policy. She also has asserted claims against Federal,
pursuant to Mass. Gen. Laws ch. 93A and Mass. Gen. Laws
ch. 176D, for unfair and deceptive acts or practices.1
The matter is presently before the court on Federal’s two
Motions for Protective Order (Docket Nos. 25 and 26), as well
as on Federal’s Emergency Motion to Enforce Settlement
Agreement (Docket No. 27) and its Motion for Sanctions
Pursuant to Rule 11(c)(2) (Docket No. 55). By its motions,
Federal contends that the parties reached a binding settlement
agreement during the course of negotiations between their
respective counsel.2
Accordingly, Federal is seeking an order
enforcing the parties’ agreement, as well as a protective order
relieving Federal of any obligation to respond to or otherwise
engage in discovery. In addition, Federal is seeking an order
imposing sanctions against plaintiff’s counsel for his actions in
filing an Application for Entry of Default against Federal
following its failure to respond to the plaintiff’s Second
Amended Complaint. Federal argues that such sanctions are
warranted because, at the time he filed the Application,
plaintiff’s counsel knew not only that Federal had been
vigorously defending the action, but also that Federal’s
dispositive motion to enforce a settlement agreement had been
filed and was pending before the court. Therefore, according
to Federal, there was no legal or factual support for a default,
and no legitimate purpose for filing the Application.
D’Agostino denies that the parties ever reached a final
settlement, or that they entered into an enforceable agreement.
She also contends that Federal has had no legitimate basis for
withholding discovery or for seeking a protective order, and
she requests that the court sanction Federal by directing it to
compensate D’Agostino for the expenses she has incurred as a
result of having to oppose Federal’s motions and pursue
discovery from the defendant. With respect to Federal’s
motion for sanctions, D’Agostino argues that her Application
for Entry of Default met all the requirements of Fed.R.Civ.P.
55(a) and otherwise complied with the law, and that it is
Federal’s motion for sanctions which is improper under the
Rules of Civil Procedure. Accordingly, she requests that the
court deny Federal’s motion and award D’Agostino her
reasonable attorney’s fees incurred in connection with the
motion for sanctions.
The parties have submitted numerous exhibits, as well as an
affidavit from plaintiff’s counsel. Additionally, the parties
presented oral arguments at a hearing before this court on
April 5, 2013. The material facts are not in dispute, and neither
of the parties has requested an evidentiary hearing. After
consideration of *121 the parties’ submissions and their oral
arguments, and for the reasons detailed below, this court finds
that although the parties had agreed on a number of critical
points relating to a settlement, they never reached agreement
on all of the terms which defendant had deemed at the time to
be essential. Therefore, this court recommends to the District
Judge to whom this case is assigned that “Defendant Federal
Insurance Company’s Emergency Motion to Enforce
Settlement Agreement” (Docket No. 27) be DENIED. In light
of this court’s conclusion that no enforceable settlement
agreement existed, Federal’s two motions for a protective
order (Docket Nos. 25 and 26) are hereby DENIED. Finally,
this court finds that sanctions are not warranted against either
party at this time. Therefore, “Defendant Federal Insurance
Company’s Motion for Sanctions Pursuant to Rule 11(c)(2)”
(Docket No. 55), as well as the plaintiff’s requests for
sanctions and for reimbursement of attorney’s fees, also are
DENIED. Federal shall file a responsive pleading to the
Second Amended Complaint within 14 days of the date of this
decision.
II. STATEMENT OF FACTS3
D’Agostino filed the instant litigation against Federal in state
court, and on August 31, 2012, Federal removed the matter to
this court on the basis of diversity of citizenship. (See Docket
No. 1). In December 2012, following the parties’ production
of their initial disclosures, the parties engaged in mediation,
which was unsuccessful. (See Goren Aff. ¶¶ 8, 10, 13).
However, counsel for the parties continued to communicate,
both over the phone and through email correspondence,
regarding a possible settlement. (See id. ¶¶ 13, 16; Def. Ex. A
at 1–13). The fundamental question raised by the defendant’s
motions is whether the parties reached an enforceable
settlement agreement during the course of those
communications.

The record demonstrates that on January 16, 2013, plaintiff’s
counsel, Richard Goren, contacted Federal’s counsel,
Alexandra Power and Jennifer Sheehan, and suggested, among
other things, that the parties arrange a time to discuss “a
possible resolution with Chubb.”4
(Def. Ex. A at 1). Counsel
for the parties spoke by telephone the following day regarding
the possibility of a settlement. (Goren Aff. ¶ 16). Significantly,
during the conversation, Attorney Goren emphasized that as a
condition to any settlement, D’Agostino would need to retain
the ability to pursue claims against Bank of America, which
was not a party to the lawsuit, for alleged breach of its
fiduciary duties to the Trust. (Id.). He also expressed some
concern about whether a settlement with Chubb would bar
D’Agostino’s potential claims against the Bank under the
doctrine of res *122 judicata. (Id.). For their part, Federal’s
attorneys indicated that as part of any settlement, the
defendant would require an agreement from D’Agostino to
indemnify Chubb from any claims or liabilities arising out of
or relating to the litigation. (Id.).
D’Agostino’s Settlement Proposal
Following counsel’s conversation, Attorney Power asked to
see D’Agostino’s settlement demand in writing, and on
January 17, 2013, Attorney Goren sent the following email to
Chubb’s counsel:
The Plaintiff offers to settle solely with Chubb for $1.15
Million in cash payable at close of settlement. Chubb would
get a release from Ms D’Agostino both individually, as
beneficiary of the Bruno D’Agostino trust and as successor
in interest to the Bruno D’Agostino trust.
The Plaintiff must be able to continue to litigate with Bank
of America.
I find it odd, to say the least, that in our conversation earlier
today you insisted that in such a separate settlement my
client would have to indemnify Chubb from any claims the
bank may make.
You will recall my email leading to our discussion today in
haec verbae:
Please produce immediately the documents Chubb contends
comprise the insurance policy contract on the D’Agostino
Trust Property.
In our conversation, you adamantly insisted you would not
do so, going on that you had produced the policy in your
initial disclosures. I reminded you that your production was
not batestamped. I reminded you that I had attached
documents that some percipient witnesses indicated were
part of the contract. But Chubb refuses to identify the
documents it contends comprise the contract of insurance.
Yet with breathtaking chutzpah Chubb suggests it is
appropriate for the plaintiff to hold chubb harmless from
obligations to the bank. Put yourself in the other side’s
shoes.
The offer of settlement is not open ended time wise. It is
open to be accepted until Monday January 21st at noon.
(Def. Ex. A at 6–7). Thus, D’Agostino proposed a settlement
conditioned upon Federal’s agreement to pay her $1.15 million
in cash and the plaintiff’s ability to assert claims against Bank
of America. Moreover, the plaintiff indicated that she would
not be willing to enter into any settlement which would
require her to indemnify Chubb for any obligations that it
might have to the Bank or for any claims that the Bank might
assert against it.
On January 18, 2013, Federal’s counsel, Attorney Power,
wrote to Attorney Goren and informed him that the January 21
deadline for responding to D’Agostino’s settlement offer was
a federal holiday, and that the defendant would need at least
one week to determine an appropriate response. (Id. at 8).
Attorney Goren responded in an email dated January 20, 2013.
(Id. at 10). Therein, plaintiff’s counsel stated, “Ms.
D’Agostino always is interested in hearing from Chubb. You
should let me know whether Chubb will settle at $1.15 Million
for a release of Chubb; after all that was that (sic) was
demanded at the mediation.” (Id.).
In late January, D’Agostino once again confirmed that she
would be willing to accept a response to her settlement
demand even though the original deadline of January 21 had
passed. Thus, on Friday, January 25, 2013, Federal’s attorney
notified Attorney Goren that she expected to have a response
from her client on Monday, and that she appreciated the
plaintiff’s patience. (Id. at 12). Attorney Goren replied that
same day stating, “I will look forward to hearing from you.”
(Id. at 13). Several days later, on January 28, *123 2013,
Attorney Goren sought an extension of time to respond to a
pending motion that Federal had filed with the court while he
awaited word from the defendant. As Attorney Goren wrote in
an email to Federal’s counsel dated January 28, 2013:
While I await word from you as to Chubb’s response to the
plaintiff’s settlement proposal, I note on my calendar that
tomorrow is the last day to file an opposition to Chubb’s
January 15, 2013 Motion to Stay.
I am inclined to put off a response to your motion but will
only do so with your agreement.
Please advise as soon as possible, ideally in the next hour or
so, so that I can plan accordingly.
If the response is to be put off, I will prepare and file a joint

motion putting off the response date to say one week.
(Id. at 14; Goren Aff. ¶ 20). Federal replied that it would
assent to an extension, and Attorney Goren filed a joint motion
for an extension of time to respond to Federal’s motion.
(Docket No. 19). Therein, counsel advised the court that “there
is good cause for this short extension as [the parties] continue
to discuss a settlement.” (Id.).
In another communication dated January 28, 2013, Attorney
Power informed Attorney Goren that Federal was still working
on D’Agostino’s settlement demand, but that she expected to
have a response within the next few days. (Def. Ex. A at 23).
Again, Attorney Goren responded that “I will wait for Chubb’s
response.” (Id.). He also notified the defendant that
D’Agostino would be moving to amend her complaint in order
to add Bank of America as a defendant, and he served Federal
with a supplemental demand letter pursuant to Mass. Gen.
Laws ch. 93A. (Id. at 23–25). By her letter, the plaintiff
alleged, in essence, that Bank of America and Chubb, acting
individually and in combination, had engaged unfair and
deceptive conduct which deprived D’Agostino of insurance
proceeds to which she was entitled under the Policy. (See id. at
26–50).
Subsequently, on February 4, 2013, the plaintiff served
interrogatories on Federal and noticed the deposition of Brown
and Dupont Forensic Consultants, LLC (“Brown and
Dupont”), a firm that had been retained by Federal to assist it
in valuing certain of the plaintiff’s damages from the fire. (Id.
at 51–66; Def. Mot. to Enforce (Docket No. 27) ¶ 16).
However, in his email accompanying the discovery materials,
Attorney Goren stated, “I look forward to Chubb’s response to
settlement proposal albeit its dilatory nature.” (Def. Ex. A at
51). Thus, D’Agostino remained willing to accept a response
to her settlement offer notwithstanding the delay and her
decision to pursue discovery.
Federal’s Response to Plaintiff’s Settlement Proposal
The next communication between the parties occurred on
February 6, 2013, when Federal’s counsel, Attorney Power,
sent the following email to Attorney Goren:
In response to your client’s demand for
(sic) to resolve the above referenced
matter, attached please find a release for
your client’s execution. We would
appreciate it if your client could execute
the release as soon as possible so that
we can avoid having to seek another
extension on your opposition to our
motion to stay.
(Id. at 67).
Attached to Attorney Power’s email was a seven-page
document, consisting of eighteen separate paragraphs, entitled
“Confidential Release and Settlement Agreement”
(“Release”). (Def. Ex. B). The *124 first paragraph of the
Release provided, among other things, for the payment of
$1.15 million from Federal to D’Agostino. (See id. ¶ I). It also
provided, in substance, that D’Agostino would release and
discharge Federal “and all of its heirs, executors,
administrators, estates, officers, directors, shareholders,
employees, agents, servants, attorneys, assigns, affiliates,
subsidiaries and divisions, predecessors and successors in
interest, trustees and legal representatives, and any and all
persons, firms and corporations in which Federal ... may have
an interest, and their insurers (hereinafter collectively referred
to as ‘RELEASEES’)” from any claims that she has or may
have against Federal in the future relating to the fire which
occurred at the Property. (See id.). As described below, Federal
argues that the inclusion of these provisions in the Release
constituted an acceptance of D’Agostino’s settlement offer
and resulted in an enforceable settlement agreement, while
D’Agostino contends that Federal’s inclusion of numerous
additional terms rendered the Release a counteroffer which
was never accepted by the plaintiff.
In addition to the provisions regarding payment and discharge
of liability, the Release addressed such issues as the use of the
Release in judicial proceedings, choice of law, termination of
the litigation, and non-disparagement. (See id. ¶¶ VII–VIII, X,
XIII). While some of these provisions contained standard
contract terms, other provisions contained more substantive
obligations. For example, but without limitation, the Release
included a detailed confidentiality clause under which
D’Agostino and her attorney would agree, in part,
that her representations and promises of
strict confidentiality, as set forth above,
go to the essence of and form a valuable
part of the consideration for
RELEASEES to make the Settlement
Payment and enter into this Agreement,
and should [D’Agostino] violate the
strict confidentiality provisions in this
paragraph, [D’Agostino] shall pay to
RELEASEES the amount of the
Settlement Payment, $1,150,000, as
liquidated damages for breaching this
Agreement.
(Id. ¶ XII). Additionally, the Release contained an
indemnification clause which provided as follows:
[D’Agostino] expressly stipulates and
agrees, in consideration for the
aforesaid payment, to indemnify,

defend, and forever hold harmless the
RELEASEES against any and all
further claims, actions, or demands that
hereafter are asserted against the
RELEASEES on account of the
occurrences of December 9, 2008
and/or the claims which were alleged or
which could have been alleged or
asserted by [D’Agostino] in the above-
referenced Civil Action.
(Id. ¶ III). Therefore, despite Attorney Goren’s insistence that
D’Agostino was unwilling to enter into a settlement
agreement which would require her to indemnify Chubb for
any claims that the Bank might assert against it, the Release
contained language which could potentially impose such an
obligation on the plaintiff.
Plaintiff’s Response to the Release
Attorney Goren responded to the proposed Release in an email
to Federal’s counsel dated February 6, 2013. (Def. Ex. A at 69;
Goren Aff. ¶ 25). Therein, D’Agostino’s counsel thanked
Attorneys Power and Sheehan for transmitting the $1.15
million release, but expressed confusion as to whether Chubb
had accepted his client’s settlement offer. (Id.). As Attorney
Goren wrote:
When I glanced at the release it was not
completely clear to me whether Chubb
had accepted Ms. D’Agostino’s
settlement proposal ... So before I put
pen *125 to paper in reworking the
form of release, I seek assurance of
Chubb’s intent. Ms. D’Agostino’s
settlement offer of $1.15 Million was
explicitly conditioned upon her being
able to pursue the bank for damages.
(Id.). He then quoted the settlement proposal that had been set
forth in the first two paragraphs of his January 17, 2013 email
to Chubb’s attorneys, and stated, “[i]f that is not acceptable to
Chubb, I will not waste my time in drafting.” (Id.).
Federal’s counsel replied immediately to Attorney Goren’s
email, stating, “[a]s the release reads, Federal Insurance
Company is the only named ‘Releasee.’ ” (Def. Ex. A at 72;
Goren Aff. ¶ 26). However, she did not address any of the
additional terms contained in the Release. (See id.).
The next significant communication between the parties
occurred on February 11, 2013, when Attorney Power
contacted Attorney Goren regarding a subpoena and Notice of
Deposition that D’Agostino had served on Brown and Dupont.
(See Def. Ex. C at 7–21). In her email to the plaintiff’s
counsel, Attorney Power stated, “it is my understanding that
our matter is respectively settled and that any depositions will
not be going forward as scheduled. Please confirm by
response to this email.” (Def. Ex. C. at 7). Thus, Federal
believed that the parties had reached an agreement which
would resolve all of D’Agostino’s claims against it.
Attorney Goren replied to Attorney Power’s email on
February 12, 2013, stating in relevant part as follows:
I do believe the plaintiff is about to conclude a settlement
with Chubb. However, the plaintiff will be continuing the
litigation with Bank of America and among other things
anticipates filing her rule 15 motion to amend and to add
Bank of America as a defendant.
I anticipate getting a draft settlement agreement to you in
the next few days; and I cannot imagine not wrapping up
our deal well before the deposition. While the plaintiff’s
claims against Chubb will be dismissed with prejudice, the
case itself will continue. Depending on when the bank is
brought in, I may continue the date for testimony.
(Id. at 37). Accordingly, as of mid-February 2013, Attorney
Goren also believed that the parties had come to an
understanding, and that after the parties finalized a written
settlement agreement, the claims against Federal would be
“dismissed with prejudice[.]” What remained unclear at that
time was whether and to what extent D’Agostino would be
willing to accept the terms of Federal’s proposed Release.
The record shows that subsequently, D’Agostino not only
rejected Federal’s Release, but also abandoned further efforts
to finalize a settlement. Thus, on February 15, 2013, Attorney
Goren spoke to Attorney Sheehan and informed her that the
proposed Release was not acceptable. (Goren Aff. ¶ 29).
Moreover, although he notified Federal’s counsel that he had
prepared a draft of a settlement agreement, Attorney Goren
declined to forward the draft to the defendant for review. (See
Def. Ex. C at 42–49). Instead, on February 19, 2013, Attorney
Goren sent Federal’s counsel a letter in which he stated, “[o]n
February 6, 2013, Chubb emailed to the plaintiff a
‘Confidential Release and Settlement Agreement’ pursuant to
which Chubb would pay Ms. D’Agostino a total of $1.15
Million on the conditions and terms set forth therein.
Including this page signed by me and the following constitute
plaintiff’s response.” (Id. at 45). The so-called “response”
included a request that Chubb produce the Policy, as well as a
series of questions seeking Chubb’s views as to its obligations
under the Policy and *126 the nature of the contractual
relationship, if any, between Chubb and Bank of America as it
related to the plaintiff’s claims. (See id. at 46–49). According
to Attorney Goren, the questions were aimed at assessing “the
reasonableness of Chubb’s February 6th settlement proposal as
well as its acceptability to [D’Agostino.]” (Id. at 46).
Therefore, notwithstanding his prior statements that “the

plaintiff is about to conclude a settlement with Chubb” and
that “the plaintiff’s claims against Chubb will be dismissed
with prejudice,” Attorney Goren refused to discuss the terms
of a final settlement agreement. (See id. at 37).
Thereafter, counsel for the parties continued to communicate
about the possibility of finalizing a written agreement, but
their communications grew increasingly contentious and
ultimately broke down. (See, e.g., id. at 53–54, 67–68, 76–77).
Additionally, the parties disagreed about the propriety of
pursuing discovery and other litigation related activities in
light of the status of their negotiations. D’Agostino insisted
that no settlement had been reached, and she proceeded to
seek discovery relating to her claims against Federal. (See id.
at 67–68, 78–89, 91–120; Goren Aff. ¶¶ 31, 38). She also
eventually moved for the entry of default against Federal after
the defendant failed to respond to the filing of a Second
Amended Complaint. (See Docket No. 46). Federal responded
to the plaintiff’s discovery efforts by filing its two motions for
protective order, and subsequently its motion to enforce the
parties’ alleged settlement agreement. Federal also opposed
the motion for entry of default, which was denied. (See Docket
Entry dated 05/13/2013). By its motions, Federal asserts that
the parties reached a binding settlement agreement on
February 6, 2013, when Federal sent D’Agostino the proposed
Release containing its agreement to pay D’Agostino $1.15
million and naming Federal as the only releasee. For her part,
D’Agostino asserts that there is not and never has been an
agreement to settle with Chubb, and that there is no basis for
delaying the litigation. (See Def. Ex. C at 134; Goren Aff. ¶
37).
Additional factual details relevant to this court’s analysis are
set forth below where appropriate.
III. ANALYSIS
A. Standard of Review
[1] [2]
The critical issue raised by Federal’s motions is whether
the parties reached an enforceable settlement agreement. The
court has “an inherent power to supervise and enforce
settlement agreements entered into by parties to an action
pending before the court.” Dankese v. Defense Logistics
Agency, 693 F.2d 13, 16 (1st Cir.1982). “Thus, a party to a
settlement agreement may seek to enforce the agreement’s
terms when the other party refuses to comply.” Fid. & Guar.
Ins. Co. v. Star Equip. Corp., 541 F.3d 1, 5 (1st Cir.2008).
Where, as here, the material facts are not in dispute, it is up to
the court to determine whether a binding agreement has been
reached. See Moore v. La–Z–Boy, Inc., 639 F.Supp.2d 136, 140
(D.Mass.2009) (“Whether a purported contract contains the
necessary elements for enforceability is (ordinarily) a question
of law reserved for the court.”) (citing Schwanbeck v.
Federal–Mogul Corp., 412 Mass. 703, 709, 592 N.E.2d 1289
(1992)). Because this matter arises under the court’s diversity
jurisdiction, the question of whether the parties entered into an
enforceable settlement agreement must be determined in
accordance with Massachusetts contract law. See Fid. & Guar.
Inc. Co., 541 F.3d at 5 (applying Massachusetts contract law in
diversity action involving *127 challenge to enforcement of a
settlement agreement).
[3] [4]
In order to form a contract under Massachusetts law, “[a]n
offer must be matched by an acceptance. A counteroffer
proposing a term that is materially different from that
contained in the original offer constitutes a rejection of the
offer and negates any agreement.” Kennedy v. JP Morgan
Chase Nat’l Corp., No. 10–CV–11324–RGS, 2011 WL
1576569, at *2 (D.Mass. Apr. 26, 2011) (internal citation
omitted). Moreover, “[i]t is axiomatic that to create an
enforceable contract, there must be agreement between the
parties on the material terms of that contract, and the parties
must have a present intention to be bound by that agreement.”
Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878,
724 N.E.2d 699, 703 (2000). Thus, while “[i]t is not required
that all terms of the agreement be precisely specified, and the
presence of undefined or unspecified terms will not
necessarily preclude the formation of a binding contract[,]” in
order for an enforceable contract to exist, the parties must
have reached an agreement on all of the essential terms. See
id. As described below, although the parties agreed on certain
essential matters, they failed to reach agreement on all the
material terms of a settlement. Therefore, this court concludes
that each of the defendant’s motions should be denied.
B. Failure to Reach an Enforceable Settlement Agreement
Federal contends that an enforceable settlement agreement
was created on February 6, 2013, when its counsel sent
Attorney Goren the Release for his client’s execution. In
particular, the defendant argues that because the Release
contained an agreement by Federal to pay D’Agostino $1.15
million, and provided for the release of the plaintiff’s claims
against Federal, it constituted an acceptance of the plaintiff’s
settlement offer and resulted in a binding contract. (See Def.
Emer. Mot. (Docket No. 27) at 12–18). D’Agostino denies
that any binding agreement occurred on February 6 or at any
other time during the course of the parties’ communications.
According to D’Agostino, no settlement could have been
reached because the plaintiff’s proposed compromise did not
constitute an “offer,” and because any alleged offer had
expired by February 6, 2013. (See Pl. Opp. Mem. (Docket No.
34) at 11–14). She also contends that the Release was a
counteroffer rather than an acceptance because it contained
significant additional terms beyond those set forth
D’Agostino’s proposal, and she argues that the Release cannot
be enforced because it was never executed by the plaintiff.
(See id. at 7–11, 14–15). For the reasons that follow, this court
finds that the plaintiff made Federal a valid offer of settlement,

and that Federal’s response to the offer was timely. However,
because this court also finds the response was a counteroffer,
which was never accepted in full by the plaintiff, this court
concludes that there is no enforceable settlement agreement.
Existence of an Offer
[5]
A threshold issue raised by the plaintiff is whether there was
ever a settlement offer. Under Massachusetts law, “[a]n offer
is the manifestation of willingness to enter into a bargain made
in such a way as to justify the other person in understanding
that his assent will conclude the agreement.” I & R Mech., Inc.
v. Hazelton Mfg. Co., 62 Mass.App.Ct. 452, 455, 817 N.E.2d
799, 802 (2004). D’Agostino argues that in this case, there
was no manifestation of the plaintiff’s willingness to enter into
a deal because the proposal set forth in Attorney Goren’s
January 17, 2013 email to Federal was merely “an *128
invitation to Chubb to creatively address plaintiff’s
complicated legal concerns.” (Pl. Opp. Mem. at 13).
Therefore, she asserts that the proposal was not sufficiently
complete and definite to constitute a valid offer. (See id. at 13–
14).
This court finds that the plaintiff’s characterization of her
proposal lacks merit, and that the proposal constituted a firm
offer to enter into a settlement agreement. In his January 17
email, Attorney Goren described the plaintiff’s proposal as an
“offer[ ] to settle” and set forth explicit conditions for reaching
a bargain. As described above, those conditions included a
cash payment of $1.15 million from Federal to Chubb, which
would be due “at close of settlement,” as well as the
requirement that the plaintiff retain the ability “to continue to
litigate with Bank of America.” (See Def. Ex. A at 6–7).
Moreover, at the end of the email, Attorney Goren warned
Federal that “[t]he offer of settlement is not open ended time
wise” and “is open to be accepted until Monday January 21st
at noon.” (Id. at 7). This unambiguous language was more
than adequate to convey D’Agostino’s willingness to strike a
bargain and to justify Federal’s conclusion that its acceptance
would result in an agreement.
The plaintiff’s suggestion that her proposal was nothing more
than an invitation to discuss the plaintiff’s legal concerns is
belied by the plain language of the January 17, 2013 email.
Not only did the email convey explicit settlement terms, but it
also lacked mention of any legal concerns. While Attorney
Goren demanded that Chubb produce the documents it
contended comprised the Policy on the Property, and accused
Chubb of “breathtaking chutzpah” for suggesting that
D’Agostino agree to indemnify Chubb for any obligations to
the Bank, there is nothing in his email to suggest that there
were any complicated legal matters that needed to be resolved
or that D’Agostino wanted to discuss any such matters with
the defendant. (Id. at 6–7). The only reasonable reading of the
email is that it reflected a desire to resolve the litigation by
entering into a settlement agreement. The plaintiff’s effort to
characterize it as something other than a settlement offer lacks
any support in the record.
Finally, this court is not persuaded by D’Agostino’s argument
that Attorney Goren’s January 17 email “is not an ‘offer’
because it does not specify ‘the completeness of the terms of
the suggested bargain.’ ” (Pl. Opp. Mem. at 13 (citation
omitted)). That argument is based on comment c to the
Restatement (Second) of Contracts § 26 (1981), which
specifically addresses price quotations and has no apparent
relevance to the facts of this case. As comment c reads:
c. Quotation of price. A “quotation” of price is usually a
statement of price per unit of quantity; it may omit the
quantity to be sold, time and place of delivery, terms of
payment, and other terms. It is sometimes associated with a
price list or circular, but the word “quote” is commonly
understood as inviting an offer rather than as making one,
even when directed to a particular customer. But just as the
word “offer” does not necessarily mean that an offer is
intended, so the word “quote” may be used in an offer. In
determining whether an offer is made relevant factors
include the terms of any previous inquiry, the completeness
of the terms of the suggested bargain, and the number of
persons to whom a communication is addressed.
(emphasis added). However, this case does not involve a price
quotation, and there is nothing in the January 17, 2013 email
indicating that D’Agostino’s proposal was intended as an
invitation to make an *129 offer rather than a firm offer of
settlement. Therefore, this court finds that Attorney Goren’s
January 17, 2013 communication constituted a valid
settlement offer.
Timeliness of Federal’s Response
[6]
D’Agostino also argues that there can be no agreement
because any offer had expired and could not be accepted on
February 6, 2013, when Chubb responded by sending the draft
Release. (Pl. Opp. Mem. at 11–13). “It is hornbook law that an
offeree’s power of acceptance vanishes at the time specified in
the offer, and if no deadline is prescribed, at the end of a
reasonable time.” Mathewson Corp. v. Allied Marine Indus.,
Inc., 827 F.2d 850, 853 (1st Cir.1987) (quotations and citations
omitted). It also is settled that the court must look to the
objective facts and conduct of the parties in assessing the
timeliness of an acceptance. See id. (it is an “established
principle that contracts depend on objective manifestations of
consent” (quotations and citation omitted)). This court finds
that the objective facts presented in this case demonstrate that
Federal’s response to D’Agostino’s settlement offer was
timely.

The plaintiff argues that Federal’s response was untimely
because any offer of settlement expired on January 21, 2013 at
noon. (Pl. Opp. Mem. at 11). As described above, the original
offer provided that “it [was] not open ended time wise” and
was only “open to be accepted until Monday January 21st at
noon.” (Def. Ex. A at 7). However, the undisputed facts also
establish that throughout the latter part of January and into
February 2013, Attorney Goren repeatedly agreed to keep the
settlement offer open despite the defendant’s stated inability to
meet the January 21 deadline and its repeated delays in
formulating a response to the plaintiff’s proposal. (See Def.
Ex. A at 8, 10, 12–13, 23, 51). In fact, on January 28, 2013,
Attorney Goren filed a motion in which he informed the court
that the parties were continuing to negotiate a settlement. (See
Docket No. 19). Even as late as February 4, 2013, Attorney
Goren sent an email to Federal’s counsel in which he stated
that he “look[ed] forward to Chubb’s response to settlement
proposal albeit its dilatory nature.” (Def. Ex. A at 51).
Therefore, the evidence establishes that D’Agostino waived
the January 21 deadline, and that Federal’s response, which
came only two days after Attorney Goren’s February 4
communication, occurred within a reasonable time. See
McCarthy v. Tobin, 429 Mass. 84, 88–89, 706 N.E.2d 629, 633
(1999) (finding that defendant’s words and conduct signified
her waiver of deadline for signing purchase and sale
agreement, and that plaintiff’s subsequent tender of the signed
agreement was timely).
Nature of Federal’s Response
[7]
D’Agostino also argues that to the extent there was an offer,
there was no agreement by the parties because Federal never
accepted the offer. Instead, according to D’Agostino,
Federal’s transmittal of a Release containing “different terms
constituted a counter-offer and thereby terminated the
defendant’s power to accept the original offer.” (Pl. Opp.
Mem. at 4 (quotations and citations omitted)). This court
agrees that the defendant’s decision to send a Release
containing additional material terms rendered its response a
counteroffer which could only become binding upon the
plaintiff’s acceptance. It is undisputed that on February 6,
2013, Federal replied to D’Agostino’s settlement offer by
sending her a seven-page Release, along with an email
requesting that the plaintiff “execute the release as soon as
possible [.]” (See Def. Ex. A at 67; Def. Ex. B). Although the
Release was consistent with the plaintiff’s offer to the extent it
provided for a $1.15 million payment to D’Agostino and *130
the release of the plaintiff’s claims against Federal, it
contained numerous additional terms beyond those set forth in
the plaintiff’s settlement offer. (See Def. Ex. B). “A reply to an
offer which purports to accept it but is conditional on the
offeror’s assent to terms additional to or different from those
offered is not an acceptance but is a counter-offer.”
Restatement (Second) of Contracts § 59 (1981). See also
McGurn v. Bell Microproducts, Inc., 284 F.3d 86, 89 (1st
Cir.2002) (plaintiff’s alteration of defendant’s offer letter
“constituted a rejection of that offer and created a
counteroffer”). By asking D’Agostino to sign a document that
was conditional upon D’Agostino’s assent to numerous
additional terms, Federal rejected the plaintiff’s offer and
created a counteroffer. See Ismert & Assocs., Inc. v. New
England Mut. Life Ins. Co., 801 F.2d 536, 541 (1st Cir.1986)
(defendant rejected plaintiff’s offer and created a counteroffer
by transmitting to plaintiff a release that differed from the
release proposed by the plaintiff, along with a letter seeking
plaintiff’s signature on the substituted release).
Federal acknowledges that the Release contained various
additional terms. Nevertheless, it argues that the Release
constituted an acceptance because it expressed Federal’s
agreement on the only two material terms that had been
articulated by the plaintiff, and all other matters were merely
subsidiary. (Def. Emer. Mot. at 16). This argument is not
persuasive. Where the parties have reached agreement on all
material matters, the existence of unresolved subsidiary
matters will not preclude enforcement of the contract. See
Goren v. Royal Investments Inc., 25 Mass.App.Ct. 137, 141,
516 N.E.2d 173, 176 (1987). Here, however, the Release
contained certain additional terms that were essential to a
settlement and could not be characterized as “subsidiary.”
Therefore, Federal’s response to D’Agostino’s offer did not
create a binding agreement. See Cmty. Builders, Inc. v. Indian
Motorcycle Assocs., Inc., 44 Mass.App.Ct. 537, 556, 692
N.E.2d 964, 976–77 (1998) (“It is not enough if parties
negotiating have agreed upon certain important terms if there
has been no agreement on other essential elements of the
undertaking” (quoting Geo. W. Wilcox, Inc. v. Shell E.
Petroleum Prod., Inc., 283 Mass. 383, 390, 186 N.E. 562, 565
(1933))).
As described above, the Release was not limited to standard,
boilerplate provisions. It also contained provisions which had
not been included in the original offer, and which sought to
impose significant obligations upon the plaintiff. For example,
the Release contained a lengthy confidentiality provision that
imposed strict requirements on the plaintiff, including an
obligation to forfeit the entire amount of the $1.15 settlement
payment if she were to violate its terms, even absent evidence
of any harm to the defendant. (See Def. Ex. B ¶ XII).
Moreover, as set forth in the Release, the plaintiff’s
“representations and promises of strict confidentiality ... go to
the essence of and form a valuable part of the consideration
for [Federal] to make the Settlement Payment and enter into
this Agreement[.]” (Def. Ex. B ¶ XII). Accordingly, the
express language of the document demonstrates that the
confidentiality provision was an “essential and inducing
feature of the contract” and was therefore material to a
settlement agreement. See Kennedy, 2011 WL 1576569, at *3
n. 5 (explaining that “[i]n the law of contracts, a material term

is ‘an essential and inducing feature of the contract[ ].’ ”)
(quoting Buchholz v. Green Bros. Co., 272 Mass. 49, 52, 172
N.E. 101, 102 (1930)).
This court also finds that Federal’s inclusion of an indemnity
provision introduced a material term which rendered the *131
Release a counteroffer. As detailed above, the indemnity
provision would have required D’Agostino to indemnify
Federal against claims relating to the December 9, 2008 fire at
the Property. (See Def. Ex. B ¶ III). Therefore, as the plaintiff
argues, “[i]f the Bank were to make a claim against Chubb as
a result of plaintiff’s claims against the Bank, under the Draft
Release Chubb would be entitled to indemnification from
plaintiff.” (Pl. Opp. Mem. at 10). However, Attorney Goren
had made it clear at the time he conveyed the plaintiff’s
settlement offer on January 17, 2013 that D’Agostino was
unwilling to enter into an agreement which would require her
to indemnify Chubb for any claims which Bank of America
might assert against Chubb or any obligations that Chubb
might have to the Bank. (Def. Ex. A at 6). He reiterated this
position following his receipt of the Release, in a letter to
Federal’s counsel dated February 22, 2013. As Attorney Goren
wrote in his letter, “[i]n previous communications I believe I
made clear, and I repeat herein, there will be no separate
settlement with Chubb pursuant to which Ms. D’Agostino will
hold Chubb harmless from any claims or liabilities from third
parties.” (Def. Ex. C at 68). Thus, the proposed Release varied
materially from D’Agostino’s original offer, thereby making it
a counteroffer.5
To the extent Federal now contends that it did not consider
these matters essential to a settlement with the plaintiff and
would have been willing to dispense with them in order to
reach an agreement, its argument is insufficient to support
enforcement of a settlement agreement. “It is ... a basic rule of
contract law that both the offer and acceptance must be
communicated if a binding agreement is to be formed.”
Kennedy, 2011 WL 1576569, at *3 n. 6. If Federal actually
believed at the time it sent the Release that the additional
terms contained therein were immaterial, it could have
conveyed that information to the plaintiff or simply accepted
the offer on the terms set forth in Attorney Goren’s January
17, 2013 email correspondence. Instead, Federal sent the
Release to D’Agostino’s counsel and asked that the plaintiff
“execute the release as soon as possible[.]” (Def. Ex. A at 67).
Because the Release contained material matters beyond those
addressed in D’Agostino’s offer, Federal effectively rejected
the offer and terminated its power to accept it. See Ismert &
Assocs., Inc., 801 F.2d at 541 (“A counter-offer made upon
receipt of an offer generally terminates the party’s power to
accept the original offer.”).
Plaintiff’s Response to the Counteroffer
Having determined that Federal’s February 6, 2013 response
to D’Agostino’s offer amounted to a counteroffer, the question
remains as to whether the parties reached a meeting of the
minds with respect to the essential terms of a settlement. The
evidence shows that plaintiff’s counsel initially viewed
Federal’s response as an acceptance of the offer, and
manifested an intent to be bound by the terms of the Release
to the extent that it called *132 for a $1.15 million payment to
D’Agostino and dismissal of the plaintiff’s claims against
Federal with prejudice. However, because the record also
demonstrates that there was no meeting of the minds with
respect to all of the material terms contained in the defendant’s
counteroffer, this court is constrained to conclude that no
binding agreement was reached.
[8]
As an initial matter, to the extent the plaintiff argues that
there can be no enforceable agreement because D’Agostino
never signed the Release, her argument is not persuasive. (See
Pl. Opp. Mem. at 14). The absence of a written contract alone
is not sufficient to defeat enforcement of a settlement
agreement. See Quint v. A.E. Staley Mfg. Co., 246 F.3d 11, 15
(1st Cir.2001) (finding that plaintiff “cannot escape the
consequences of her agreement because she spoke but did not
write”). “If ... the parties have agreed upon all material terms,
it may be inferred that the purpose of a final document which
the parties agree to execute is to serve as a polished
memorandum of an already binding contract.” Goren, 25
Mass.App.Ct. at 140, 516 N.E.2d at 175. Thus, the issue is
whether the parties agreed upon all material terms
notwithstanding the absence of a signed agreement.
The record reveals that the parties did agree on the amount of
the settlement payment and the dismissal of Federal from the
litigation. Thus, after receiving Federal’s response to the offer
on February 6, 2013, Attorney Goren thanked Federal’s
counsel “for transmitting the $1.15 Million release.” (Def. Ex.
A at 69). He also requested confirmation, before he “put pen to
paper in reworking the form of release,” as to whether Federal
had also accepted the condition that D’Agostino be able to
pursue Bank of America for damages. (Id.). On February 12,
2013, after confirming that Federal was the only entity named
as a Releasee in the Release, Attorney Goren sent another
email to Federal’s attorneys in which he expressed his belief
that D’Agostino was “about to conclude a settlement with
Chubb” and stated that “I cannot imagine not wrapping up our
deal well before the deposition” of Brown and Dupont. (Def.
Ex. C at 37). He also indicated that he would be “getting a
draft settlement agreement to [Federal] within the next few
days” and confirmed that while the plaintiff intended to pursue
claims against Bank of America, “the plaintiff’s claims against
Chubb will be dismissed with prejudice[.]” (Id.). It is apparent
from the language of these emails that as of February 12,
2013, Attorney Goren viewed the Release as an acceptance of
D’Agostino’s settlement offer, and believed that the parties
only needed to work out the terms of a final written agreement
in order to wrap up the “deal.” Therefore, the parties reached a

meeting of the minds with respect to the amount of the
settlement payment and the dismissal of Federal from the
litigation with prejudice.
Attorney Goren’s later communication, in which he claimed
that D’Agostino needed more information in order to assess
“the reasonableness of Chubb’s February 6th settlement
proposal” was disingenuous at best. (See Def. Ex. C at 46). It
is undisputed that it was Attorney Goren who first reached out
to Federal in order to discuss “a possible resolution with
Chubb,” and that it was the plaintiff who made the initial
written settlement offer. (Def. Ex. A at 1, 6–7). It is also
undisputed that Attorney Goren continued to hold the
settlement offer open well after the original deadline expired.
(See id. at 10, 12–14, 23, 51). The suggestion that D’Agostino
needed more information before she could determine the
reasonableness of any settlement is entirely inconsistent with
the actions of her counsel. It is also inconsistent with the
statements made *133 by Attorney Goren in his February 6
and February 12 email communications.
Unfortunately for Federal, however, this court cannot
conclude that the parties reached a binding agreement. Despite
Attorney Goren’s expressed belief that the parties had a
“deal,” his email communications were insufficient to
constitute an acceptance of Federal’s counteroffer.
Significantly, Attorney Goren did not address the contents of
the proposed Release in either his February 6 or his February
12 email, and he never indicated that D’Agostino would be
willing to accept the additional material terms contained
therein. (See Def. Ex. A at 69; Def. Ex. C at 37). Instead, on
February 15, 2013, Attorney Goren contacted Federal’s
counsel and told her that the Release was unacceptable.
(Goren Aff. ¶ 29). Therefore, this court cannot find as a matter
of law that there was an agreement on all the material terms of
a settlement. Compare Fecteau Benefits Group, Inc. v. Knox,
72 Mass.App.Ct. 204, 213, 890 N.E.2d 138, 146 (2008)
(affirming lower court’s determination that parties’ email
exchange resulted in a binding settlement agreement where
“the e-mail exchange included all material terms, a deadline
for acceptance, and acceptance without equivocation”).
Accordingly, Federal is not entitled to relief on its motion for
enforcement of a settlement agreement or on its motions for a
protective order, and is not relieved of its obligations to
respond to the Second Amended Complaint or otherwise
participate in discovery.6
C. D’Agostino’s Request for Sanctions
In connection with her opposition to the motions for a
protective order, D’Agostino requests that the court impose
sanctions on the defendant in the form of an order directing
Federal to reimburse the plaintiff for the expenses she incurred
as a result of Federal’s motions and her efforts to obtain
discovery. (Pl. Opp. Mem. at 20–27). The plaintiff argues that
such sanctions are warranted because the defendant failed to
confer with the plaintiff before filing her motions for
protective order, to turn over coverage information as required
by Mass. Gen. Laws ch. 176D, or to comply with
D’Agostino’s repeated requests for discovery. (See id.). Based
on the record before it, this court finds that no sanctions are
warranted.
[9]
As an initial matter, the record indicates that Federal has
produced coverage information, and that D’Agostino has been
able to obtain Policy information from Bank of America as
well. (See Goren Aff. ¶¶ 5, 10, 27). The record also
demonstrates that the parties engaged in significant settlement
negotiations, and that for much of the time the action has been
pending in this court, Federal has had a reasonable expectation
that the matter would be resolved without the need for further
discovery. Moreover, not-with-standing this court’s conclusion
that the parties failed to reach agreement on the material terms
of a settlement, this court finds that Federal had a good faith
basis for its assertion that the parties entered into a binding
agreement in February 2013. Its decision to resist the
plaintiff’s efforts to obtain further discovery, and to await a
ruling from this court before complying with D’Agostino’s
demands for additional information, were justified.
*134 Finally, it is far from clear that Federal failed to confer
with the plaintiff before filing her motions for protective
order.7
Even if it were assumed that Federal neglected to do so,
this court would not find that sanctions were warranted. The
undisputed facts demonstrate that by the time Federal filed its
motions, the parties’ negotiations had broken down and their
communications had grown contentious. Accordingly, Federal
acted appropriately when it sought the court’s intervention,
and the plaintiff’s request for sanctions is denied.
D. Federal’s Motion for Sanctions
[10]
Finally, Federal has moved for sanctions against Attorney
Goren, pursuant to Fed.R.Civ.P. 11, based on the plaintiff’s
filing of an Application for Entry of Default in which
D’Agostino requested that the Clerk enter a default against
Federal pursuant to Fed.R.Civ.P. 55(a). D’Agostino filed the
Application after Federal failed to respond to the Second
Amended Complaint. This court denied the Application, and
ruled that Federal was not required to file a responsive
pleading pending a ruling on her Emergency Motion to
Enforce Settlement Agreement. (Docket Entry dated
05/21/2013).
Federal argues that the Application was frivolous because, at
the time Attorney Goren filed it, he knew that Federal had
vigorously defended the claims against it throughout the
litigation, and knew that Federal’s Emergency Motion to
Enforce Settlement, which was potentially dispositive of
D’Agostino’s claims against Federal, was pending before the

court. (Def. Mot. for Sanctions (Docket No. 55) at 1–2).
Accordingly, Federal seeks an order imposing sanctions upon
plaintiff’s counsel pursuant to Fed.R.Civ.P. 11(b). D’Agostino
argues that the Application for Entry of Default met all
necessary requirements, and was proper in light of the
defendant’s failure to file an answer or defensive motion to the
amended complaint, or to seek permission from the court not
to do so. (Pl. Opp. to Sanctions (Docket No. 59) at 1–2, 9–15).
She also argues that Federal’s motion for sanctions is baseless
and lacks compliance with the applicable Rules. (Id. at 16).
Therefore, D’Agostino not only opposes the motion, but also
requests that the court sanction Federal by awarding her
reasonable attorney’s fees incurred by D’Agostino in
connection with Federal’s motion. (Id. at 16–17).
After consideration of the parties’ arguments, both parties’
requests for sanctions are denied. While the court questions
the wisdom of seeking a default against Federal at a time when
its motion to enforce a settlement agreement was pending, this
court is not prepared at this stage to impose sanctions against
plaintiff’s counsel. Additionally, this court finds that Federal’s
decision to seek sanctions was not improper given the
circumstances presented in this case, including D’Agostino’s
repeated indications that the parties were at least on the verge
of completing a settlement. Therefore, D’Agostino has not
shown that she is entitled to an award of attorney’s fees.
IV. CONCLUSION
For all the reasons described herein, this court recommends to
the District *135 Judge to whom this case is assigned that
“Defendant Federal Insurance Company’s Emergency
Motion to Enforce Settlement Agreement” (Docket No. 27) be
DENIED.8
Moreover, in light of this court’s conclusion that no
enforceable settlement agreement existed, Federal’s two
motions for a protective order (Docket Nos. 25 and 26) are
hereby DENIED. Finally, this court finds that sanctions are not
warranted against either party at this time. Therefore,
“Defendant Federal Insurance Company’s Motion for
Sanctions Pursuant to Rule 11(c)(2)” (Docket No. 55), as well
as the plaintiff’s requests for sanctions and for reimbursement
of attorney’s fees, also are DENIED. Federal shall file a
responsive pleading to the Second Amended Complaint within
14 days of the date of this decision.
June 17, 2013

Footnotes
1 On March 27, 2013, D’Agostino amended her complaint in order to allege new facts against Federal and to assert claims against
Bank of America. However, at the time of the events giving rise to the dispute at the heart of the present motions, Bank of
America was not yet a party to the litigation.
2 In its earlier motion for a protective order, Federal argued that the parties were continuing to negotiate a settlement, and that
their resources would be better spent finalizing an agreement instead of conducting discovery. (See Docket No. 25 at 4–6).
Subsequently, however, Federal stated that the parties had reached an enforceable settlement, and that it was entitled to a
protective order while the parties finalized the terms of a release agreement. (See Docket No. 26 at 4–7).
3 The facts are derived from pleadings filed in this case; the exhibits attached to Federal’s Emergency Motion to Enforce
Settlement Agreement (Docket No. 27) (“Def. Ex. ––––”); the exhibits attached to the Plaintiff’s Combined Opposition to
Federal’s Two Motions for Protective Order and its Emergency Motion to Enforce Settlement Agreement (Docket No. 34) (“Pl.
Ex. ––––”); and the Affidavit of Richard A. Goren (Docket No. 35) (“Goren Aff.”), as amended by the plaintiff’s Notice of
Errata (Docket No. 41). Additionally, this court has considered the exhibits attached to Federal’s motions for protective order.
However, because those documents are also included among the exhibits attached to the defendant’s Emergency Motion to
Enforce Settlement Agreement, there is no need to cite to them separately.
4 Although Federal is the writing company for the Policy and the named defendant in this case, the plaintiff has used the name
“Chubb” to refer to the defendant in its correspondence. Accordingly, this court has used the names “Federal” and “Chubb”
interchangeably for purposes of this decision.
5 The plaintiff argues that the Release contained additional terms, including the requirement that D’Agostino execute a
Stipulation of Dismissal with prejudice and that she release Federal’s “affiliates,” which also were material and made the
Release a counteroffer. (Pl. Opp. Mem. at 7–10). The plaintiff asserts that these provisions were inconsistent with the
requirement that she retain the ability to pursue claims against Bank of America because a dismissal with prejudice could
potentially preclude her claims against the Bank pursuant to the doctrine of res judicata, and because the inclusion of
“affiliates” could arguably be interpreted to include the Bank. (Id.). In light of this court’s determination that there were other
material terms in the Release which rendered it a counteroffer, it unnecessary at this time to address the merits of these
arguments.
6 In light of this court’s conclusion that Federal is not entitled to a protective order because the parties never reached a binding
settlement agreement, this court declines at this time to address the other arguments raised by the plaintiff in opposition to the
motions for protective order.
7 In his Affidavit, Attorney Goren stated that Federal failed to confer, as required by Local Rule 37.1, prior to filing its motions
for protective order. (Goren Aff. ¶¶ 35, 39–40). However, among the attachments that Federal submitted with its motions were
certifications stating that Federal did confer with the plaintiff in an effort to resolve its disputes, prior to filing the motions for
protective order. (See Docket No. 25–8 attached to Docket Nos. 25 and Rule 26(c) Certification attached to Docket No. 26).
Therefore, the evidence relating to whether Federal complied with Local Rule 37.1 is disputed.
8 The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings
and recommendations must file a written objection thereto with the Clerk of this Court within 14 days of the party’s receipt of
this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings,
recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the
United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude
further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v.
Valencia–Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604–605 (1st Cir.1980);
United States v. Vega, 678 F.2d 376, 378–79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas
v. Arn, 474 U.S. 140, 153–54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199
F.3d 1, 3–4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150–51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc.,
138 F.3d 1, 4 (1st Cir.1998).

D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)

D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)

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