Free Terminate Hearings - District Court of California - California

Case 3:08-cv-00640-JAH-BLM

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, et al., MICHAEL HAND, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Case No. 08cv0640-JAH(BLM) ORDER FOLLOWING EARLY NEUTRAL EVALUATION CONFERENCE, SETTING RULE 26 COMPLIANCE AND NOTICE OF SETTLEMENT CONFERENCE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On April 29, 2008 at 2:00 p.m. the Court held a telephonic, attorneys-only Early Neutral Evaluation Conference ("ENE") in the above-entitled action. Settlement of the case could not be reached

at the ENE and the Court therefore discussed compliance with Rule 26 of the Federal Rules of Civil Procedure. issues the following orders: 1. Any objections made to initial disclosure pursuant to Based thereon, the Court

Rule 26(a)(1)(A-D) are overruled, and the parties are ordered to proceed with the initial disclosure process. Any further objections to initial disclosure will be resolved as required by Rule 26; 2. The Rule 26(f) conference shall be completed on or

before May 13, 2008;

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3.

A joint discovery plan shall be lodged with Magistrate

Judge Barbara L. Major on or before May 20, 2008; 4. Initial disclosures pursuant to Rule 26(a)(1)(A-D) shall

occur on or before May 27, 2008; and, 5. A Settlement Conference shall be held on June 4, 2008 at

9:30 a.m. in the chambers of Magistrate Judge Barbara L. Major located at 940 Front Street, Suite 5140, San Diego, CA 92101. All

discussions at the Settlement Conference will be informal, off the record, privileged, and confidential. Counsel for any non-English

speaking party is responsible for arranging for the appearance of an interpreter at the conference. a. parties, Personal Appearance of Parties Required: All

adjusters for insured defendants, and other representa-

tives of a party having full and complete authority to enter into a binding settlement, as well as the principal attorneys responsible for the litigation, must be present in person and legally and factually prepared to discuss settlement of the case. Counsel

appearing without their clients (whether or not counsel has been given settlement authority) will be cause for immediate imposition of sanctions and may also result in the immediate termination of the conference. Unless there are extraordinary circumstances, persons

required to attend the conference pursuant to this Order shall not be excused from personal attendance. Requests for excuse from

attendance for extraordinary circumstances shall be made in writing at least three (3) court days prior to the conference. Failure to

appear in person at the Settlement Conference will be grounds for sanctions.

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b.

Full Settlement Authority Required: In addition to

counsel who will try the case, a party or party representative with full settlement authority1 must be present for the conference. In

the case of a corporate entity, an authorized representative of the corporation who is not retained outside counsel must be present and must have discretionary authority to commit the company to pay an amount up to the amount of the Plaintiff's prayer (excluding punitive damages prayers). The purpose of this requirement is to

have representatives present who can settle the case during the course of the conference without consulting a superior. Counsel for a government entity may be excused from this requirement so long as the government attorney who attends the Settlement Conference

(1) has primary responsibility for handling the case, and (2) may negotiate settlement offers which the attorney is willing to

recommend to the government official having ultimate settlement authority. c. Confidential Settlement Statements Required: No

later than May 28, 2008, the parties shall submit directly to Magistrate Judge Major's chambers confidential settlement statements no more than five (5) pages in length. These confidential

"Full settlement authority" means that the individuals at the settlement conference must be authorized to explore settlement options fully and to agree at that time to any settlement terms acceptable to the parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have "unfettered discretion and authority" to change the settlement position of a party. Pitman v. Brinker Int'l, Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement authority to attend the conference contemplates that the person's view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum certain of authority is not adequate. See Nick v. Morgan's Foods, Inc., 270 F.3d 590, 59597 (8th Cir. 2001).

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statements shall not be filed or served on opposing counsel. party's confidential statement must include the following: (i) and/or counterclaims

Each

A brief description of the case, the claims asserted, and the applicable defenses or

position regarding the asserted claims; (ii) A specific and current demand or offer for settlement addressing all relief or remedies sought. If a specific

demand or offer for settlement cannot be made at the time the brief is submitted, then the reasons therefore must be stated along with a statement as to when the party will be in a position to state a demand or make an offer; and (iii) A brief description of any previous

settlement negotiations, mediation sessions, or mediation efforts. General statements that a party will "negotiate in good faith" is not a specific demand or offer contemplated by this Order. It is assumed that all parties will negotiate in good faith. d. Requests to Continue a Settlement Conference: Any

request to continue the Settlement Conference or request for relief from any of the provisions or requirements of this Order must be sought by a written ex parte application. The application must

(1) be supported by a declaration of counsel setting forth the reasons and justifications for the relief requested, (2) confirm compliance with Civil Local Rule 26.1, and (3) report the position of opposing counsel or any unrepresented parties subject to the Order. Absent extraordinary circumstances, requests for

continuances will not be considered unless submitted in writing no fewer than seven (7) days prior to the scheduled conference. ///

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 DATED:

If the case is settled in its entirety before the scheduled date of the conference, counsel and any unrepresented parties must still appear in person, unless a written joint motion confirming the complete settlement of the case is submitted no fewer than twentyfour (24) hours before the scheduled conference. Parties are hereby warned that failure to comply with this Order may result in the imposition of sanctions. Additionally,

failure to respond to discovery requests or to comply with the Federal Rules of Civil Procedure regarding discovery may result in the imposition of sanctions including monetary sanctions,

evidentiary sanctions and the dismissal or default of your case. IT IS SO ORDERED. April 30, 2008

BARBARA L. MAJOR United States Magistrate Judge

COPY TO: HONORABLE JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE ALL COUNSEL AND PARTIES

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