Free Order - District Court of California - California

Case 3:08-cv-00842-JM-BLM

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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 22 23 24 25 26 27 28 an JOHN C. SIEGMAN, an individual, ) ) Plaintiff, ) ) v. ) ) PITNEY BOWES INC., a Delaware ) corporation doing business as ) Pitney Bowes Group 1 Software, ) and DOES 1 through 20, ) inclusive, ) ) Defendants. ) ) ) Case No. 08cv0842-JM (BLM) NOTICE AND ORDER SETTING EARLY NEUTRAL EVALUATION CONFERENCE AND REQUIRING COMPLIANCE WITH FED. R. CIV. P. 26(a)(1)(A) THROUGH (D), INCLUSIVE 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 June 16, 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

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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. 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

1

"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. Id.

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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 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 Required: No later than five (5) to the government official having ultimate settlement

court days prior to the ENE, the parties shall submit confidential statements no more than ten (10) pages2 in length directly to the chambers of the Honorable Barbara L. Major. These confidential Each

statements shall not be filed or served on opposing counsel. party's confidential statement must include the following: a. counterclaims

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

regarding the asserted claims; b. 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

at 486.

A limited or a sum certain of authority is not adequate.

See Nick v. Morgan's

Foods, Inc., 270 F.3d 590, 595-97 (8th Cir. 2001).
2

The parties shall not append attachments or exhibits to the ENE statement.

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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 c. 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. assumed that all parties will negotiate in good faith. 5. New Parties Must be Notified by Plaintiff's Counsel: It is

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 be considered unless submitted in writing no less than seven (7) days prior to the scheduled conference. /// /// /// /// /// /// /// ///

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7.

Compliance with Federal Rule 26(a)(1)(A)-(D): In preparation

for the Early Neutral Evaluation Conference and to assist with timely resolution of this action, the parties shall meet and make the

disclosures required by Fed. R. Civ. P. 26(a)(1)(A) through (D), inclusive. The meeting shall occur no later than June 2, 2008. Failure to comply

Plaintiff's counsel shall coordinate said meeting.

with this Order may result in the imposition of sanctions. DATED: May 13, 2008

BARBARA L. MAJOR United States Magistrate Judge

COPY TO: HONORABLE JEFFREY T. MILLER 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. Judgements 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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