Plaintiff Reginald Michaud appeals from the district court’s dismissal of his action after he refused to proceed with a settlement approved by his attorney and ordered by the court. 1 Alleging that the defendants, police officers of the Town of Fort Kent, Maine, had subjected him to harassment, verbal abuse and beatings on or about May 26, 1982, plaintiff in 1983 filed this action under 42 U.S.C. § 1983. 2 The case was thereupon called for trial before a jury on several occasions, but was continued because of plaintiffs unavailability, caused in part by his brushes with the law in several states. These led, at certain times, to his detention out of state and alsо to the threat of arrest in various venues including Maine.
The most recent trial date was set in July 1989, before a visiting judge. At this time, defendants moved to dismiss based on the plaintiffs failure to prosecute, his continued unavailability for trial, and the allegedly frivolous and fraudulent nature of the lawsuit. (Defendants’ attorney’s affidavit reported Michaud’s former wife as stating that he had fabricated his bruises and the allegations of beatings.) Defendants’ motion to dismiss was heard by the court during a telephone conference on July 5, 1989. However, before the court could rule on the dismissal motion, attorney for plaintiff, Murrough O’Brien, advised the court on July 6, 1989 that Michaud had finally agreed to settle the case for $3,000. The same day, the court entered an order dismissing the action without costs and “without prejudice to the right, upon good cause shown within sixty (60) days, to reopen the action if settlement is not consummated.”
On August 21, 1989, the court received a lengthy, somewhat incoherent, handwritten lettеr from plaintiff himself, reporting that his attorney “no longer wishes to represent me or my interests if indeed he ever did.”
By letter of December 12, 1989, addressed to the visiting judge who had issued the settlement order, Attorney O’Brien confirmed that on July 6 he had transmitted the $3,000 settlement offer to plaintiff in a telephone call, plaintiff being then incarcerated in Concord, New Hampshire, and that plaintiff had then “agreed to the figure prоposed.” On July 26, O’Brien continued, plaintiff called him and repudiated his earlier offer to settle, and refused to accept the tendered draft and execute the settlement documents. In an accompanying copy of a letter dated August 2 from O’Brien to plaintiff, O’Brien noted that plaintiff had said his original decisiоn to settle was flawed as he was withdrawing from drugs at the time of acceptance, a factor he did not then communicate to counsel. Mr. O’Brien advised plaintiff that he had the right to reopen the case for good cause shown, and urged him to act within the 60-day period (i.e., by September 4, 1989) if he wished to attempt to reopen. Mr. O’Brien concluded his letter to plaintiff by stating that he did not wish to continue as plaintiff’s counsel in the matter and that plaintiff must act on his own.
On March 28, 1990, the regularly assigned district judge called a conference of counsel in his chambers. Present were defendants’ attorney and Mr. O’Brien. The latter represented, “[tjhere is no dispute” that his client had agreed on July 6 to settle for $3,000. By July 26, however, plaintiff notified O’Brien of his repudiation of the settlement, alleging that on July 6 he had been in the process of withdrawing from drugs and was not then in his right mind, or had lacked the capacity to settle the case. Mr. O’Brien also represented, in response to the court’s inquiry, that Mi-chaud was still in jail, in New Hampshire, awaiting trial, with outstanding detainers from Pennsylvania and Connecticut. O’Brien also said that Michaud was a fugitive from Maine, where he faced an un-served five-day sentence.
The district court thereupon made a finding that Michaud “has agreed to a settlement in the cаse.” The court then entered an order allowing the plaintiff two weeks to complete the $3,000 settlement, if plaintiff failed to do so, the court indicated it would dismiss the case with prejudice.
On April 3, 1990, the court received a letter from Michaud dated March 30, 1990, protesting the court’s requirement to settle. Michaud statеd in the letter that when O’Brien had offered him the $3,000 settlement stating that he could have the check by “morning,” Michaud had told O’Brien, “Yes, I am tired and sick of this ordeal but 3,000 was not sufficient, as I’d spent ten times that amount with the various aspects of this injustice.” Michaud also stated in the letter, “I simply implored him to ask
Michaud did not completе the $3,000 settlement as provided in the court’s order. Accordingly, after the two weeks had passed without action, the court dismissed the case with prejudice on April 26, 1990. Plaintiff now appeals from the dismissal, being represented on appeal by a different attorney.
On appeal, plaintiff argues that the district court erred in ordering acceptance of the settlement where plaintiff was not present at the in-chambers hearing, where testimony was not taken with regard to his authorization of the settlement, and the court acted solely on the basis of the settlement counsel’s representations.
We commenсe with the question of whether O’Brien was authorized to enter into a settlement. We have previously held that an attorney, merely by virtue of his employment, lacks authority to compromise,
Luis C. Forteza e Hijos, Inc. v. Mills,
Applying these principles here, if it were adequately established that Michaud authorized Attorney O’Brien to settle on July 6, the settlement would be binding and Mi-chaud’s later repudiation ineffective. The question boils down to whether the district court’s finding to this effect can stand where based exclusively on the representation of Michaud’s former counsel, Michaud himself being neither present nor invited to speak to the authorization issue.
The district court was aware of the need to determine whether Michaud had authorized the July 6, 1989, settlement. It inquired carefully into the events of the settlement at the meeting with counsel, and on the basis of Attorney O’Brien’s representatiоns that “There is no dispute,” the court expressly found that Michaud “has agreed to a settlement in this case.”
The problem with this finding, as Mi-chaud now contends, is that it was made without Michaud’s testimony or any prior notice to him that the question of his authorization was about to be determined and that his input would be welcome.
Defendants argue that since an attorney has presumptive authority to settle a case, and since a settlement had been agreed to by counsel and was reflected in the July, 1989, order, Michaud acquired the burden of establishing that his attorney lacked authority. This, defendants say, he has never met. Thus, while Michaud’s letter of August 26, 1989 indicated profound dissatisfaction with the settlement and with his attorney’s representation, and was treated as a motion to reopen, it nowhere claimed specifically that Michaud had not, in fact, authorized O’Brien to settle on July 6. It was only after the March 28, 1990, in-chambers conference with counsel — following the court’s ruling that Michaud comply with the purported settlement — that Mi-chaud wrote a letter to the court intimating that he had never actually authorized O’Brien to settle.
It is tempting on these facts to affirm the district court’s actions. Given Mi-chaud’s continued unavailability at the time of the chambers conference on Marсh 28, 1990, and his former attorney’s express
But given Michaud’s request to reopen the settlement, we conclude that error was committed in confirming the settlement without first offering to Michaud a reasonable opportunity to be heard on the issue of whether or not he had originally authorized Mr. O’Brien to settle.
It is apparent from Michaud’s August 26, 1989, letter to the court, and from Attorney O’Brien’s subsequent letter to the visiting judge, that by the time of the lobby conference on March 28, 1990, O’Brien had informed Michaud that O’Brien did not wish to continue as Michаud’s counsel and that Michaud must act on his own. Profound distrust and dissatisfaction clearly reigned on both sides. Under these circumstances, we do not believe that O’Brien’s statement as to what occurred could bind Michaud, given especially the latter’s prompt denial, in his March 30, 1990, letter, of ever having authorized a settlement. In circumstances where a former attorney and his client dispute the giving of authority, courts generally require the holding of an evidentiary hearing on the question of authorization.
See Garabedian,
Circumstances here, to be sure, are further clouded by two problems: (1) Michaud did not make it clear prior to the March 28, 1990, lobby conference that he denied having authorized the settlement; (2) Michaud was in jail, and, therefore, not readily available, possibly rendering his appearance impossible.
As for (1), however, Michaud was never informed that the issue of authorization was about to be determined and that he should appear. When Michaud learned that the settlement would be enforced, he immediately wrote the court (on March 30, two days following the lobby conference) to deny having granted O’Brien authority. Without 'his having been offered any prior opportunity to make his views on the issue of authority known, we find it hard to fault him for not speaking out sooner on that subject.
As for Michaud’s unavailability because of imprisonment, this is a more difficult matter. It is within thе sound discretion of the district court whether to order state authorities to bring a prisoner before the court for purposes of pursuing a civil action commenced by the prisoner.
Poole v. Lambert,
Here, however, the district court afforded Michaud no opportunity to be heard, nor did it tender some reasonable alternative in
In reaching this result, we are aware of defendants’ alternative argument that we should affirm the dismissal on the grounds of Michaud’s failure to prosecute. Defendants emphasize the antiquity of the case, Michaud’s prior failures to appear, and other factors, including his purported perjury. Michaud’s alleged defaults along these lines must, however, be evaluated more carefully than we can do on this record. Whether his earlier failures to appear coupled with his recent actions reflect such a lack of diligence as to warrant dismissal for failure to prosecute requires a more complete assembly of the facts and circumstances.
Compare Holt v. Pitts,
We simply hold that the court erred in finding that plaintiff authorized Mr. O’Brien to settle without first tendering to plaintiff a reasonable opportunity to testify on that issue, or to present his version in some other appropriate way, assuming the circumstances were such that аnother avenue would have been appropriate.
Vacated and remanded for proceedings not inconsistent herewith.
Notes
. We understand that plaintiff Reginald Mi-chaud is in no way related to the defendant Kenneth Michaud.
. The Town of Fort Kent, which was one of the original defendants, filed a motion for summary judgment in July 1986. Thе motion was granted by the court in October 1987.
. While, like several other circuits, we here apply federal law to the issue of an attorney's authority to settle a civil action brought under federal law, e.g.
Fennel v. TLB Kent Co.,