Kidman

dissenting:

The majority and the district court have valiantly tried to conclude a settlement that may or may not exist. I appreciate the efforts but because the district court’s findings fall short of what is required for our review, I would vacate the judgment, and remand for further proceedings.

We have held that “a district court has the equitable power to enforce summarily an agreement to settle a case pending before it,” but that the “district court may enforce only complete settlement agreements.” Callie v. Near, 829 F.2d 888, 890 (9th Cir.1987) (emphasis in original). A complete settlement agreement is one *74 where the parties have manifested their mutual asset to all the material terms. See Doi v. Halekulani Corp., 276 F.3d 1131, 1136-40 (9th Cir.2002) (holding that district court did not abuse its discretion by enforcing a settlement agreement where the parties placed the material terms of the settlement agreement on the record in open court).

The district court found that the parties had agreed to nine “material terms,” but that “there was specifically no agreement to [four additional] terms.” The district court did not specify whether the four non-agreed-to terms…

MEMORANDUM ***

Richard and Shauna Kidman, dba as RD’s Drive in/Exxon, appeal the district court’s order enforcing a settlement agreement between the Kidmans, four of their *72 employees, and the EEOC. 1 The Kidmans asked their employees at RD’s to sign an English-language-only policy. Four employees refused and brought an action with the EEOC against the Kidmans, alleging violations of Title VII. On September 3, 2003, the parties participated in a settlement conference before a federal magistrate judge. At the end of the day, they represented that they had reached a settlement.

Over the following weeks, however, the parties disputed whether various terms belonged in the agreement. The district court held an evidentiary hearing to determine two issues: whether the parties had reached a settlement on September 3, and if so, the terms of the settlement. After a two-day hearing, the district court issued an order finding that the parties had agreed to a settlement with nine terms.

On appeal, the Kidmans argue that four non-agreed-to terms — terms that they did not want as part of the settlement — were material to the agreement reached during the September 3 conference.…