Upon de novo rеview this Report and Recommendation is hereby adopted. Plaintiffs motion to enforce the settlement is DENIED; defendant’s motion for summary judgment is ALLOWED. The clerk is ordered to enter judgment for defendant. So ordered.
REPORT AND RECOMMENDATION WITH REGARD TO PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT AGREEMENT (Docket No. W and DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Docket No. 50)
August 15, 1997
NEIMAN, United States Magistrate Judge.
I. INTRODUCTION
This matter concerns Kevin O’Rourke (“Plaintiff’)’s motion to enforce a professed settlement agreement against Jason Incorporated (“Defendant”). Plaintiff asserts, among other things, that Defendant had agreed to settle his complaint and that the doctrine of judicial estoppel should apply. Denying that a settlement agreement had ever been finalized, Defendant in turn has moved for summary judgment, contending that the statute of limitations precludes any relief.
Defendant’s motion for summary judgment hаs been referred to this Court for a report and recommendation pursuant to Rule 3 of the Rules of United Sates Magistrates of the United States District Court for the District of Massachusetts. 28 U.S.C. § 636(b)(1)(B). Because Plaintiffs motion also entails a potentially dispositive issue, the Court has addressed that motion pursuant to Rule 3 as well. For the reasons indicated below, the Court recommends that Plaintiffs motion to enforce the settlement be denied and that Defendant’s motion for summary judgment be granted.
II. BACKGROUND
There is no genuine dispute as to the following facts, many of which were explored *44 in the Court’s August 23, 1996 report and recommendation regarding Defendant’s previous motion for summary judgment. (See Docket No. 35.)
At the time of the accident underlying this lawsuit, Plaintiff was employed by the Springfield Resource Recovery Plant in Agawam, Massachusetts. As a shift supervisor and engineer, he monitored and maintained the plant’s boilers. On July 14, 1991, Plaintiff investigated a malfunction in a boiler. The hopper doors on the boiler in question were hinged at the bottom and opened from top to bottom by way of two sets of nuts and washers. Plaintiff unscrewed the nuts securing the doors in an attempt to cool down the system to facilitate further investigation. When Plaintiff began to unscrew the nuts on one particular door, he observed leaking water and turned away. Pressure within forced the hopper door to swing open, causing Plaintiff to sustain first and second degree burns on his legs and back from scalding water. The injuries required- immediate hospitalization and ongoing treatment.
Plaintiffs product liability complaint against Defendant — who assertedly designed and manufactured the hopper doors — was filed on July 15, 1994. Although the injury had in fact occurred on July 14, 1991, the complaint averred that Plaintiff was injured on July 16, 1991. The complaint, as plead, therefore fell within one day of the applicable three year statutes of limitations. See M.G.L. ch. 260, § 2A; M.G.L. ch. 106, § 2-318. In turn, Defendant’s answer indicated that it was “without knowledge or information sufficient to form a belief as to the truth of [this] allegation.” Plaintiffs pre-trial memorandum, filed on December 6, 1995, also asserted that his injury occurred on July 16, 1991. Defendant’s pre-trial memorandum, filed December 7, 1995, did not contest this date.
Plaintiffs later court documents also assumed that the accident occurred on July 16, not July 14, 1991. For exаmple, in his February 23, 1996, opposition to Defendant’s original motion for summary judgment, Plaintiff included his responses to Defendant’s interrogatories in which he stated that his injury occurred on July 16, 1991. Likewise in his February 1, 1996, motion to amend his complaint, which sought to add a claim of market share liability, Plaintiff referred to July 16, 1991, as the date of injury. Following the parties’ lead, the Court’s August 23, 1996, report and recommendation accepted as an undisputed fact that Plaintiffs injury occurred on July 16, 1991. District Judge Michael A. Ponsor adopted the recommendation to deny Defendant’s motion for summary judgment and set a jury trial for February 24,1997.
On February 14, 1997, Plaintiff moved to enter and view the Springfield Resource Recovery Plant. In his motion, Plaintiff, for the first time in court documents, referred to his injury as having ocсurred on July 14, 1991. As it happened, that same day, February 14, 1997, Plaintiffs counsel, with the approval of Defendant’s counsel, contacted the clerk’s office and reported that the parties had reached an oral settlement agreement. The proposed agreement involved a compromise of the statutory lien held by the worker’s compensation insurer as required by M.G.L. ch. 152, § 15. Plaintiffs counsel requested a hearing before Judge Ponsor in order to obtain approval of the settlement. The clerk scheduled the hearing for the afternoon of February 24, 1997, the originally scheduled trial date.
On the morning of the scheduled hearing date, Plaintiffs counsel, after reviewing the draft release prepared by Defendant’s counsel, advised Defendant’s counsel that the injury occurred on July 14, 1991, not July 16, 1991. Defendant’s counsel thereupon refused to sign the petition for approval of settlement, which already had been endorsed by the worker’s compensation insurer. The parties appeared in court that afternoon and reported that the matter was not settled. Judge Ponsor scheduled a status conference for March 3, 1997, at which time he ordered that Plaintiffs proposed motion to enforce the settlement agreement and Defendant’s proposed motion to dismiss be filed by March 21, 1997. The Court addresses these two motions in turn.
III. MOTION TO ENFORCE SETTLEMENT
Plaintiff essentially makes four arguments why the parties’ purported settlement should *45 be enforced: (1) he has an enforceable oral contract with Defendant to settle the case for a specific amount; (2) he did not actively deceive Defendant as to the date of the accident; (3) the doctrine of judicial estoppel should be employed to enforce the parties’ agreement; and (4) Defendant is being contradictory regarding its knowledge of the date of injury. These arguments are addressed below after a discussion of two preliminary matters.
First, the Court notes that both parties rely on the Restatement (Second) of Contracts and draw no distinction between contracts entered into by parties themselves and those entered into by the parties’ counsel. Nevertheless, from the facts presented,.it is appаrent that each party’s attorney had actual authority to enter a binding settlement.
Compare Michaud v. Michaud,
Second, the Court queries whether the parties, through counsel, contemplated that their oral agreement would be reduced to writing. At least two documents in this, vein have been called to the Court’s attention: (1) the release drafted by Defendant’s counsel, which was never signed by Plaintiff because of the incorrect date; and (2) the petition for approval of settlеment which, as described, was not signed by Defendant’s counsel when he realized that the date of the accident, which he assumed was July 16, was in fact July 14,1991.
In the Court’s opinion, the failure of the respective parties to execute either one of these documents does not void any underlying agreement. Neither party claims an intent not to have been bound absent fully executed documents.
Compare Winston v. Mediafare Entertainment Corp.,
1.
.Conceding that there was no written agreement, Plaintiff first claims that he has an enforceable oral contract with Defendant to settle the case for a specific amount. Defendant asserts, in response, that there was never a meeting of the minds.
As the parties are aware, the formation of an agreement requires a bargain in which there is a manifestation of mutual assent, i.e., a meeting of the minds to the exchange and consideration.
See
Restatement (Second) of Contracts § 17(1) cmt c.
See also Trifiro v. New York Life Ins. Co.,
Even if there is a meeting of the minds, however, a contract may be voidable based on a mutual mistake. “A mistake is a belief that is not in accord with the facts.” Restatement (Second) of Contracts § 151. Thus:
Where a mistake of both parties at the time of contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake....
Id.,
§ 152(1).
See LaFleur v. C.C. Pierce Co.,
(a) the risk is allocated to him by agreement of the parties, or
(b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or
(c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.
Restatement (Second) of Contracts § 154.
Here, the oral settlement agreement was based on a materially mistaken fact — that the injury occurred on July 16, 1991. Applying the Restatement to the facts before thе Court, it is evident that (i) the parties’ mistake relates to a basic mutual assumption (the date of the injury), (ii) the parties’ agreement itself does not allocate the risk, and (in) Defendant would not have performed otherwise.
Did Defendant, in any event, as Plaintiff impliedly argues, bear the risk of the mistake pursuant to § 154(b)? In this regard, in its answer to Plaintiffs complaint, Defendant not only claimed to be without knowledge of the date of injury, but raised the statute of limitations as an affirmative defense. Defendant then had more than sufficient time, through the process of discovery, to determine the actual date of injury. Given that Plaintiffs complaint, on its face, was filed within one day of the expiration of the statute of limitations, Defendant should have been particularly vigilant for any discrepancy regarding this date. In fact, when Plaintiffs counsel brought the inaccuracy to the attention of Defendant’s counsel — when discussing the draft release — Defendant’s counsel immediately understood its import.
Moreover, in July of 1995, as Plaintiff points out, Defendant’s counsel forwarded to Plaintiffs counsel copies of the records of Plaintiffs employer which had been obtained by Defendant in response to its deposition notice. These records described Plaintiffs injury as having occurred on July 14, 1991, not the July 16,1991, date set forth in Plaintiffs complaint. In addition, on August 8, 1995, Defendant conducted Plaintiffs deposition, during which he stated that the injury occurred on July 14, 1991. Defendant also questioned Plaintiff about his time sheet, which again noted the injury as having occurred on July 14, 1991. In sum, the problem of the correct date was obviously brewing for some time.
Compare Dover Pool & Racquet Club, Inc. v. Brooking,
Nonetheless, in the Court’s view, Defendant did not bear the risk of the mistake alone or in isolation. While Defendant bore the burden of
pleading
the statute of limitations as an affirmative defense,
see
Fed. R.Civ.P. 8(c),
Badway v. United States,
The burden of pleading “operates independently of the burden of proof, which, in diversity cases, is governed by state law.” 5
Charles A. Wright & Arthur R. Miller
§ 1272, at 450. In Massachusetts, the burden of proof regarding the statute of limita
*47
tions rests with the plaintiff.
Newburgh v. Florsheim Shoe Co.,
At bottom, Plaintiff had as much, if not more, of a burden regarding the accuracy of the date of injury. As described, however, Plaintiff repeatedly confirmed that July 16, 1991 was the date of injury, even in the face of the same contradictory information available to Defendant. Plaintiff never filed a motion to amend his complaint in order to correct the date. When, for other reasons, Plaintiff did file a motion to amend on January 31, 1996 — a motion which was disallowed by this Court — the proposed complaint reasserted that the injury occurred on July 16, 1991. In fact, Plaintiffs motion to amend was filed after Plaintiffs deposition — at which time the July 14, 1991 date was mentioned — and after production of other documents which cited the correct date. Finally, as described, still other court documents of Plaintiffs, as well as his answers to interrogatories, repeatedly asserted that the injury occurred on July 16,1991.
The commentators to the Restatement (Second) of Contracts specifically recognize that the standards with respect to contractual mistakes confer “considerаble discretion on the court” and “have traditionally been marked by flexibility.” Id., ch. 6 introductory note. “In part, this has been due,” the comment continues,
to the protean character of the situations involved and the circumstance that they are almost inevitably unforeseen by the parties. In part it has been due to the fact that the law of mistake was shaped largely by courts of equity which had broad discretionary powers. This characteristic of flexibility marks the rule stated in this Chapter, as is evidenced by such imprecise language as “materially” (§ 152), “unconscionable” (§ 153) and “bears the risk” (§§ 152,153,154).
Id.
Here, given the essential equitable nature of the relief sought, the Court believes that Defendant did not bear the risk of mistáke alone, if at all. Similarly, given the parties’ mutual roles in fostering the mistake, the Court does not believe it reasonable to judicially allocate the risk solely to Defendant.
Contrast Covich v. Chambers,
2.
Plaintiffs avowed lack of deception, his second argument, does not alter the Court’s conclusion. Either Plaintiffs counsel, throughout the course of this litigation, was as mistaken as Defendant’s counsel regarding the accident date — thereby making the settlement agreement voidable as a mutual mistake — or he became aware of the mistakе sometime prior to reaching settlement, the timing of which would raise uncomfortable issues of deception. Indeed, given the tight statutory time period within which the complaint was filed, Plaintiffs counsel was no doubt aware of the import of an accident date earlier than July 16, 1991, had that come to his attention. Nonetheless, the factual discrepancies described above failed to trigger any action on Plaintiffs counsel’s part until the eleventh hour, just prior to the *48 expected execution of the release and the petition for approval of settlement. In stark contrast, Plaintiff himself — in light of his deposition testimony — appears to have understood all along that July 14 was the operative date.
The question of deception aside, if Plaintiffs counsel — with whom Defendant’s counsel made the settlement agreement — came to know the correct date prior to settlement, the agreement would nonetheless be voidable under the unilateral mistake doctrine. According to the Restatement:
Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake ... and
(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, оr
(b) the other party had reason to know of the mistake or his fault caused the mistake.
Restatement (Second) of Contracts § 153. Here, since Plaintiff, in the person of his counsel, still “had reason to know of the mistake,” Defendant is entitled to void the agreement.
See Torrao v. Cox,
3.
As his third argument, Plaintiff attempts to invoke the doctrine of judicial estoppel as a way to enforce the parties’ agreement. Judicial estoppel “essentially preсlude[s] a party from asserting a legal or factual position ‘inconsistent’ with its position in a prior proceeding.”
Gens v. Resolution Trust Corp.,
Unfortunately for Plaintiff, his counsel’s argument is unavailing. Even assuming application of the doctrine of judicial estoppel in the context of the same, not a succeеding,
2
lawsuit, the doctrine operates only in certain narrow circumstances to protect the integrity of the judicial process.
United States v. Levasseur,
*49
Plaintiffs arguments to the contrary,
Correia
is not “significantly identical to the essential facts” of this case. (Pl.’s Br. (Docket No. 49) at 8.)
4
In
Correia,
the parties set out their settlement in open court and the court then acted. Here, at most, the parties, through Plaintiffs counsel, notified the clerk’s office of settlement and requested that the scheduled trial date — on which there was a second trial scheduled as well — be used instead to seek judicial approval of the settlement. Although not determinative, that request itself bespeaks a lack of finality, at least as far as the Court was concerned. Moreover, this Court is not inclined to equate a telephone call to the clerk’s office, as happened here, with representations'of settlement made in open court, as happened in
Correia. Compare, e.g., Wang Labs, Inc.,
In any ease, Judge Ponsor never approved the settlement. Rather, he gave the parties additional time to work out the problem; barring agreement, they were to prepare for trial. As a result, there was no real disruption of the judicial process. Simply put, the court does not appear to have been inconvenienced by the last-minute activities of the parties. No jury hаd been impanelled, no witness dismissed, and no trial begun. Even had a settlement order issued, Judge Ponsor still had the power to vacate the order to consider whether there was excusable neglect by counsel in failing to inform the court of settlement problems.
See Pratt v. Philbrook,
4.
Plaintiffs final argument — that Defendant is being contradictory regarding its knowledge of the date of injury — is similarly ineffective. Clearly, “intentional self-contradiction” should not be “used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.”
Patriot Cinemas,
In the present matter, there is no evidence that Defendant, although mistaken, was being contradictory. Nor is there any evidence that Defendant has gained any unfair advantage through its mistake. Even Defendant’s concession, for purposes of its original motion for summary judgment, that the accident occurred on July 16, 1991, provided no benefit as that motion was denied.
In sum, the Court finds that (i) the parties were mutually mistaken regarding the date of injury, a mistake seriously compounded by Plaintiffs actions, (ii) judicial estoppel does not apply and (iii) Plaintiffs remaining arguments are without merit. Accordingly, and despite the potentially dire consequences for Plaintiff, see discussion infra, the Court will recommend that Plaintiffs mоtion to enforce the settlement agreement be denied. Plain *50 tiff has pointed to no other doctrine to cause the court to advise otherwise.
IV. MOTION FOR SUMMARY JUDGMENT
In its motion for summary judgment, Defendant contends that Plaintiff filed his complaint after the statute of limitations had run and that his case must thus fail by operation of law. There is, in fact, no dispute that Plaintiff was injured on July 14, 1991, and that the complaint was filed on July 15, 1994, one day late. In response, relying on the discovery rule, Plaintiff claims that he filed his complaint well within the statutory period.
Summary judgment is appropriate where the record reveals no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). A disputed fact is genuinely at issue if “the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.”
Rivera-Muriente v. Agosto-Alicea,
Under Massachusetts lаw, tort actions may be brought “only within three years ... after the cause of action accrues.” M.G.L. ch. 260, § 2A.
See also
M.G.L. ch. 106, § 2-318 (breach of warranty claims must be brought within three years after date of injury and damage occurs). “The determination of when a cause of action ‘accrues’ has generally been left to the courts by the Legislature.”
Anthony’s Pier Four, Inc. v. Crandall Dry Dock Engineers, Inc.,
As the Supreme Court has explained, “[sjtatutes of limitations, which are found and approved in all systems of enlightened jurisprudence, represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.”
United States v. Kubrick,
Plaintiff — looking for any additional time period of more than one day — contends that Defendant’s motion for summary judgment must fail because the “discovery rule” applies to this case. Under the rule, “the action accrues when the injured party knew, or, in the exercise of reasonable diligence, should have known, the factual basis for the cause of action.”
Tagliente v. Himmer,
Typically, “when a person with ordinary wisdom and judgment would be able to know that the conduct or product of another may have harmed him or her, the statutory limitations period has begun to run.”
Riley,
Plaintiff claims that his cause of action did not accrue until he discovered, or reasonably should have discovered, that he was injured because of Defendant’s conduct, regardless of the actual date of injury. Plaintiff thus acknowledges that he was injured on July 14, 1991, but claims he was unable to determine the cause of injury because he immediately went to the hospital, where he remained for fifteen days. Specifically, Plaintiff avows that “[o]n the date of my injury, I knew I was burned by scalding liquid, but I was not aware that the design of the hopper door was in any way the cause of my injuries.” Plaintiff claims not to have known that the design of the hopper door was in any way involved until his return to work in September of 1991. As Plaintiffs counsel asserted at oral argument, the statute of limitations, therefore, did not begin to run until at least September of 1991. Citing
Lareau v. Page,
The discovery rule is easier to apply- in some situations than others. In medical malpractice сases, for example, Massachusetts courts have come to acknowledge that a cause of action does not accrue “until a patient learns, or reasonably should have learned, that he has been harmed as a result of a defendant’s conduct.”
Franklin,
Given the particulars of the present matter, however, Plaintiffs reliance on the discovery rule is unavailing. The consistent theme in cases applying the rule has been the delayed discovery of the harm itself. As the First Circuit recently noted, “[u]nder the Massachusetts discovery rule, the running of the statute of limitations is delayed while the facts, as distinguished from the legal theory for the cause of action, remain
inherently unknowable
to the injured party.”
The Saenger Organization, Inc. v. Nationwide Insurance Licensing Assoc., Inc.,
In
Anthony’s Pier Four,
for example, an action claiming negligence and breach of implied and express warranties, the Supreme Judicial Court held that the statute of limitations did not accrue until the mooring system, specifically designed for plaintiff by the defendant, failed.
Id.,
Nevertheless, Plaintiff maintains that the statute of limitations was suspended until he realized, sometime in September of 1991, that Defendant’s design or manufacture of the hopper doors was the probable cause of his injury. Granted, there is some linkage in the caselaw concerning the discovery rule between a claimant’s awareness of his injury and its prоbable cause. Upon close examination, however, this linkage arises only in those cases when the injury itself is difficult to discover.
Commenting on this very issue, the First Circuit in
Albert
— noting that the Supreme Court in
Kubrick
“did not specifically address the issue of whether a plaintiff needed to know of the injury’s cause for the purpose of determining accrual”- — adopted the reasoning of other courts that the statute of limitations began to run when plaintiff “knew, or should have known, of their [his] hearing loss
and
its cause.”
Albert,
Here, however, Plaintiff does not claim that his injury manifested itself on any date other than July 14, 1991. Moreover, the facts regarding Plaintiffs injury were readily available to him. In these circumstances, the Court is convinced that Plaintiff should not be allowed to toll the statute of limitations until he knew who actually designed or manufactured the hopper door. In addition, there is no evidence that Defendant has hindered Plaintiffs discovery of the cause of action.
The Court recognizes the unfairness of a rule which holds that a statute of limitations has run even before a plaintiff knows or reasonably should have known that he may have been harmed by the conduct of another.
Bowen,
The important point is that a statute of limitations starts to run when an event has occurred which was reasonably likely to put a plaintiff on notice that someone may have caused his injury.
Bowen,
The statute of limitations began to run on July 14, 1991. Since Plaintiffs complaint was filed more than three years after that date, Defendant is entitled to summary judgment.
V. CONCLUSION
For the foregoing reasons, the Court recommends that Plaintiffs motion for enforcement of settlement be DENIED and that Defendant’s motion for summary judgment be ALLOWED. 5
Notes
. Although the language of M.G.L. ch. 152, § 15 enables a court to inquire into the “merits of the settlement,” the purpose of this inquiry appears to be the fair allocation of the settlement proceeds among interested claimants, most particularly the third party insurer. Thus, the Court does not believe that Defendant could have withdrawn from the oral settlement agreement prior to the court's review, as if its settlement agreement, though counsel, was only conditional. This statutory interpretation need not be determinative, however, since, as explained below, the Court believes that the parties' agreement is otherwise voidable.
. For a discussion оf the application of judicial estoppel in the context of a single suit, see Judge William G. Young's opinion in
Wang Labs,
. Acknowledging the appellate court decision in
Correia,
the Supreme Judicial Court, in
East Cambridge Sav. Bank v. Wheeler,
We decline to identify a settlement [in a prior bankruptcy court proceeding] as representing success for the purposes of judicial estoppel. *49 In deciding whether a party should be judicially estopped, we will look to see whether that party is seeking to use the judicial process in an inconsistent way that courts should not tolerate.
Id.
. Indeed, it is unclear whether this Court should even be lоoking at stale law for the application of judicial estoppel. As the district court stated in
Wang Labs,
"[w]hile the majority of circuits that have considered the question have held that state law controls the application of judicial estoppel in diversity cases, those cases involved situations where the federal court was considering whether to judicially estop a party from contradicting a position it had previously taken in a state court proceeding.”
Id.,
. The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation.
See Keating v. Secretary of Health & Human Services,