Free Order Referring Case to Early Neutral Evaluation - District Court of California - California

Case 3:08-cv-01110-DMS-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 an v. JILL LINDSTEDT dba MCDONALD'S #1557; MCDONALD'S CORPORATION, BARBARA HUBBARD, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Case No. 08cv1110-DMS (BLM) NOTICE AND ORDER FOR EARLY NEUTRAL EVALUATION CONFERENCE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

IT IS HEREBY ORDERED that an Early Neutral Evaluation (ENE) of your case will be held on October 9, 2008 at 1:30 p.m. in the chambers of the Honorable Barbara L. Major, United States Magistrate Judge, located at 940 Front Street, Suite 5140, San Diego, California, 92101. The following are mandatory guidelines for the parties preparing for the Early Neutral Evaluation Conference. 1. Purpose of Conference: discussion between The purpose of the ENE is to permit the attorneys, parties, and the

informal

settlement judge of every aspect of the lawsuit in an effort to achieve an early resolution of the case. All conference discussions will be

informal, off the record, privileged, and confidential. Counsel for any non-English speaking party is responsible for arranging for the

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appearance of an interpreter at the conference. 2. Personal Appearance of Parties Required: All parties,

adjusters for insured defendants, and other representatives of a party having full and complete authority to enter into a binding settlement, and 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 at the ENE

conference will be grounds for sanctions. 3. 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

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"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 Pitman v.

discretion and authority" to change the settlement position of a party. 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. at 486. A limited or a sum certain of authority is not adequate. Id.

See Nick v. Morgan's

Foods, Inc., 270 F.3d 590, 595-97 (8th Cir. 2001).

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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 ENE conference (1) has primary responsibility for handling the case, and (2) may negotiate settlement offers which the attorney is willing to recommend authority. 4. Confidential ENE Statements Optional: The parties may, but to the government official having ultimate settlement

are not required to, submit prior to the ENE confidential statements no more than ten (10) pages2 in length directly to the chambers of the Honorable Barbara L. Major. These confidential statements shall not be

filed or served on opposing counsel. 5. New Parties Must be Notified by Plaintiff's Counsel:

Plaintiff's counsel shall give notice of the ENE to parties responding to the complaint after the date of this notice. 6. Requests to Continue an ENE Conference: Local Rule 16.1(c)

requires that an ENE take place within forty-five (45) days of the filing of the first answer. granted. Requests to continue ENEs are rarely

However, the Court will consider formal, written, ex parte

requests to continue an ENE conference when extraordinary circumstances exist that make a continuance appropriate. In and of itself, having to

travel a long distance to appear in person is not "extraordinary." Absent extraordinary circumstances, requests for continuances will not
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The parties shall not append attachments or exhibits to the ENE statement.

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be considered unless submitted in writing no less than seven (7) days prior to the scheduled conference. Based upon the Court's familiarity with cases brought pursuant to the Americans with Disabilities Act, and in the interest of promoting the just, efficient, and economical determination of this action, the Court issues the following orders: 1. All discovery shall be stayed in this case until after the

Rule 26(f) conference; 2. Twenty-one (21) days prior to the ENE, Plaintiff's counsel

shall lodge with Magistrate Judge Major's chambers, and serve on opposing counsel, a statement no more than two (2) pages in length, including the following information: a. An itemized list of the specific issues on the subject

premises which are the basis of the claimed violations under the Americans with Disabilities Act. A recitation of regulations, by The claimed violations must

number, will not satisfy this requirement. be specifically described. b.

A statement of the amount and category of damages claimed

by Plaintiff in this action. c. d. entirety. 3. At least fourteen (14) days prior to the ENE, lead counsel The amount claimed for attorneys' fees and costs; and The Plaintiff's demand for settlement of the case in its

responsible for the case and any unrepresented parties, along with property managers of commercial locations, shall meet and confer in person at the subject premises regarding settlement of: a. b. The premises violations alleged; and Damages, costs, and attorneys' fees claims.

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Plaintiff's counsel shall be responsible for making arrangements for the conference. 4. At least seven (7) days prior to the ENE, counsel shall lodge

with Magistrate Judge Major's chambers a joint statement advising the Court of the status of settlement negotiations and setting forth all issues in dispute, including property issues, Plaintiff's alleged damages, and the claim for attorneys' fees and costs, along with a description of any settlement demands and/or offers exchanged. 5. Plaintiff's counsel shall be prepared to present to the Court

for in camera review at the ENE documentation supporting the amount of attorneys' fees and costs claimed.

DATED:

August 28, 2008

BARBARA L. MAJOR United States Magistrate Judge

COPY TO: HONORABLE DANA M. SABRAW U.S. DISTRICT JUDGE ALL COUNSEL

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NOTICE OF RIGHT TO CONSENT TO TRIAL BEFORE A UNITED STATES MAGISTRATE JUDGE In accordance with the provisions of 28 U.S.C. § 636(c), you are hereby notified that a U.S. Magistrate Judge of this district may, upon the consent of all parties, on Form 1A available in the Clerk's Office, conduct any or all proceedings, including a jury or non-jury trial, and order the entry of a final judgment. Counsel for the plaintiff shall

be responsible for obtaining the consent of all parties, should they desire to consent. You should be aware that your decision to consent or not to consent is entirely voluntary and should be communicated solely to the Clerk of Court. Only if all parties consent will the Judge or Magistrate Judge

to whom the case has been assigned be informed of your decision. Judgments of U.S. Magistrate Judges are appealable to the U.S. Court of Appeals in accordance with this statute and the Federal Rules of Appellate Procedure.

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