MDY Industries, LLC v. Blizzard Entertainment, Inc., et al
Filed clerk order (Deputy Clerk:EPM ): These cases are under consideration for inclusion in the Mediation Program.
See Fed. R. App. P. 33 and Ninth Cir. R. 33-1.
A settlement assessment conference will be held by telephone on July 8,
2009, at 10:00 a.m. PACIFIC (San Francisco) Time/1:00 p.m. Eastern Time. The briefing schedule previously set by the court remains in effect. [09-15932, 09-16044] (SC)
M D Y Industries, LLC v. Blizzard Entertainment, Inc., et al
F IL E D
U N IT E D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUN 02 2009
MOLLY C. DWYER, CLERK
U . S . C O U R T OF APPE A L S
M D Y INDUSTRIES, LLC, Plaintiff-counter-defendant Appellant, v. B L I Z Z A R D ENTERTAINMENT, INC.; et a l., Defendants-third-partyplaintiffs - Appellees, v. M I C H A E L DONNELLY, Third-party-defendant Appellant.
N o . 09-15932 O R D E R SETTING A S S E S S M E N T CONFERENCE D ate: July 8, 2009 T im e: 10:00 a.m. P acific (San Francisco) Time
M D Y INDUSTRIES, LLC, Plaintiff-counter-defendant Appellee, v. B L I Z Z A R D ENTERTAINMENT, INC.; et a l., Defendants-third-partyplaintiffs - Appellants, v. M I C H A E L DONNELLY, Third-party-defendant Appellee.
N o . 09-16044
These cases are under consideration for inclusion in the Mediation Program. See Fed. R. App. P. 33 and Ninth Cir. R. 33-1. A settlement assessment conference will be held by telephone on July 8, 2 0 0 9 , at 10:00 a.m. PACIFIC (San Francisco) Time/1:00 p.m. Eastern Time. A Circuit Mediator will initiate the telephone call and contact each participant at th e telephone number listed on the attached list. Check the information for co m p leten ess and accuracy. Questions or comments about the conference date or p a r tic ip a n ts should be directed to the Mediation Assistant via fax at (415) 3558 5 6 6 . If the appeals settle or a motion to dismiss pursuant to Fed. R. App. P. 4 2 (b ) is filed prior to the conference, please inform the Mediation Assistant v ia fax immediately.
P r o c ed u r es governing the assessment conference and the Mediation Program a re discussed in the attached memorandum. Counsel are expected to familiarize th em selv es with the information in the memorandum. All participants in the assessm en t conference shall comply with the confidentiality provisions set forth in P a ra g r ap h I. T h e briefing schedule previously set by the court remains in effect.
F O R THE COURT:
B y: Elisa P. Monterola D e p u ty Clerk
09-15932 & 09-16044
LIST OF CONFERENCE PARTICIPANTS MDY INDUSTRIES, LLC Plaintiff!counter!defendant ! Appellant/appellee Lance Venable, Esq. Tel: 602-631-9100 Email: email@example.com Joseph R. Meaney, Esq. Email: firstname.lastname@example.org Fax: 602!631!4529 VENABLE, CAMPILLO, LOGAN & MEANEY, P.C. 1938 East Osborn Rd. Phoenix, AZ 85016
v. BLIZZARD ENTERTAINMENT, INC.; et al. Defendants-third-party Plaintiffs - Appellees/ Appellants Christian Genetski, Esq. Tel: 202-408-6463 Email: email@example.com Shane McGee, Esq. Tel: 202-408-9216 Email: smcgeesonnenschein.com Jacob A. Sommer, Esq. Tel: 202-408-6341 Email: firstname.lastname@example.org Marc Zwillinger, Esq. Tel: 202-408-9171 Email: email@example.com Fax: 202!408!6399 SONNENSCHEIN NATH & ROSENTHAL LLP
Suite 600 East Tower 1301 K Street, N.W. Washington, DC 20005 v. MICHAEL DONNELLY Third!party!defendant ! Appellant/Appellee Lance Venable, Esq. Joseph R. Meaney, Esq. [See above]
U N I T E D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT C IR C U IT MEDIATION OFFICE Jam es R. Browning United States Courthouse P .O . BOX 193939 9 5 Seventh Street S an Francisco, California 94119-3939 (4 1 5 ) 355-7900 (4 1 5 ) 355-8566 (Fax)
P R O C E D U R E S GOVERNING THE CIRCUIT MEDIATION PROGRAM A. P u r p o s e of the Program T o facilitate settlement of the appeal.
T h e Circuit Court Mediators T h e nine Circuit Mediators are full-time employees of the Ninth Circuit. They are experienced litigation attorneys who also have extensive training and ex p erien ce in negotiation, mediation and settlement. C. S c o p e of the Program A ll counseled civil cases filed in this Court, with the exception of certain categ o ries of cases set forth in Ninth Circuit Rules 3-4 and 15-2, are eligible to be in clu d ed in the Program. D. S e le ctio n of Cases for Inclusion in the Program T h e Civil Appeal Docketing Statement. In almost all civil cases, co u n sel must complete and submit to the district court upon the filing of the N o tice of Appeal, or to the Ninth Circuit upon the filing of a Petition for R ev iew , a Civil Appeal Docketing Statement ("CADS"). Specific req u irem en ts for the CADS are set forth in Ninth Circuit Rules 3-4 and 15-2 and Federal Rules of Appellate Procedure, Appendix Form 6. The Court lo o k s to the CADS to help determine if a case is an appropriate candidate for in clu sio n in the Mediation Program and to facilitate case management. A s se ss m e n t Conference. Following review of the CADS, the Court w ill usually conduct a telephonic assessment conference before deciding w h eth er the case should be included in the Program. Counsel are to discuss settlem en t with their principals before the assessment conference. The
in itial assessment conference typically lasts between 30 minutes and one h o u r and includes a discussion of the case's litigation history and possible settlem en t processes and structures. S electio n of cases is based upon a number of factors, including the p arties' interest in participating and the likelihood of settlement. A p p ro x im ately fifty percent of eligible cases are selected. W h ile participation in the Program typically occurs in the pre-briefing stage, co u n sel may ask to be included in the Program at any time. Requests should b e in writing and addressed to the Chief Circuit Mediator. These co m m u n icatio n s will be kept confidential at counsel's request. E. S c h e d u lin g Conferences P rio r to each conference, counsel will receive an order setting the date, time a n d place of the conference, identifying the participants and, if appropriate, in stru ctin g them how to prepare. The Court looks with disfavor on requests to resch ed u le the conference date, except where a date directly conflicts with a p rev io u sly scheduled court appearance or vacation. T h e court will initiate the telephone call and contact each participant at the telep h o n e number listed on the "List of Conference Participants" attached to the o rd er. Counsel should check the information for completeness and accuracy. Please advise the Mediation Office of questions about dates, of any changes or co rrectio n s in participants or telephone numbers or if the appeal settles before the co n feren ce date by fax (415) 355-8566. U n less counsel receive an order scheduling an assessment conference or a n order selecting the appeal for the Program, counsel should assume the a p p ea l has not been selected for inclusion in the Program. In the absence of a n order-resetting or vacating the briefing schedule, counsel must comply w ith the original briefing schedule set by the clerk. F. S e ttle m e n t Procedures E ach case presents unique circumstances and personalities that must be c o n s id e r ed in determining the settlement procedure that provides the optimal ch an ce for resolution. Thus, settlement procedures are determined on a case-tocase basis. The individualized procedure may include an initial conference by telep h o n e or in-person, with attorneys and with or without parties themselves. Customarily, the initial conference provides counsel and the Mediator the o p p o rtu n ity to exchange information and determine a process that might provide
th e greatest opportunity for resolution. Thereafter, the Mediator may conduct fo llo w -u p conferences with parties or attorneys, either in separate or joint sessions, in - p e r so n or on the telephone. In appropriate circumstances, the Mediator may issu e procedural orders to accommodate private mediators or to coordinate the s ettle m e n t process with related proceedings, or may refer a case to a judge, m a g is tr ate , arbitrator or other mediator. G. P r ep a r in g for a Settlement Conference P rio r to the conference, counsel should discuss with their clients what the clien ts believe must be present to achieve a fair settlement, encouraging them to ex p lo re not only their legal positions but also the interests that underlie their p o sitio n s. Counsel should also discuss the risks of litigation, litigation expenses, th e advantages and disadvantages of likely litigated and mediated outcomes, and an assessm en t of the opposition's interests, needs and point of view. In some cases, the Mediator will request mediation statements prior to c o n f e r en c e s. The contents of the statements and whether they will be exchanged w ith the other parties will be determined at the time of the request . H. P articip an ts and Authority G en erally, parties appear at the initial conference through counsel. All c o u n s el intending to file briefs in the case shall participate in the conference. If m o re than one attorney is representing a party, then the attorney with the most d irect relationship with the client for the purpose of settlement discussions must p articip ate. Co-counsel and other attorneys in principal counsel's firm may attend if their presence would be beneficial. Subsequent conferences may also include participation of the parties and r ep r e se n ta tiv e s of insurance carriers or other parties. If telephone conference p articip an ts do not possess the authority to make and respond to settlement p ro p o sals, someone with authority must be readily available. Parties in in-person m e d ia tio n s must be represented by an individual who is fully informed and vested w ith full, discretionary settlement authority. I. C o n fid en tiality of the Process I n order to encourage efficient and frank settlement discussions, the Court ex ercises great care to ensure strict confidentiality of the settlement process. Circuit Rule 33-1 provides that settlement-related information disclosed to a court m ed iato r will be kept confidential and will not be disclosed to the judges deciding th e appeal or to any other person outside the Circuit Mediation Program
p a r tic ip a n ts . Documents and correspondence related to settlement are maintained o n ly in the Circuit Mediation Office and are never made part of the main Ninth C ircu it case file. Should the mediator confer separately with the participants, those d iscu ssio n s shall also be maintained in confidence from the other participants in th e settlement discussions to the extent that the communicating parties request. In addition, parties and their clients who participate in any aspect of the C ircu it Mediation Program are expected to respect the confidentiality of the settlem en t processes and to adhere to the following: (1 ) Unless they indicate otherwise to the mediator at the initiation of any settlem en t discussions, all parties, attorneys and other participants in the settlement d iscu ssio n s are assumed to agree that any written or oral communication made by th e mediator, or any party, attorney, or other participant in the settlement d is c u s s io n s : ( a) may not be used for any purpose in any pending or future p ro ceed in g in this or any other court or administrative forum; and (b ) may not be disclosed to anyone who is not a participant in the m ed iatio n or an authorized agent of a participant. ( 2 ) The nondisclosure provisions of paragraph (1) do not apply if such d is clo s u r e : (a) is agreed upon by all participants in the mediation and the court; or (b ) is made in the context of a subsequent confidential mediation or settlem en t conference with the agreement of all participants and the subsequent third-party neutral. J. A u th o rity of the Mediator O n ce ordered by the Mediator, participation in telephone or in-person co n feren ces is mandatory. The Mediator may order participation of counsel, the p arties themselves, or both. Failure to participate may result in sanctions, in clu d in g dismissal of the appeal. In cases selected for inclusion in the Program, the Mediator is authorized to r u le on certain non-dispositive procedural matters, including the briefing schedule, stays, consolidation and other case management issues. Before participants bring p ro ced u ral motions, they should consult the Circuit Mediator. If the Mediator is u n ab le to resolve a procedural issue with counsel by consensus, counsel will be d irected to file a motion with the Clerk.
If settlement is not reached, the Circuit Mediator will address any ju risd ictio n al issues and work with counsel to develop the most efficient and ex p ed itio u s plan for disposition of the case. This may include limiting the issues, lim itin g briefing and defining the record on appeal, or staying the appeal pending s o m e contingency, such as disposition of a related case. A t the conclusion of the last conference, the Circuit Mediator will issue an o r d e r releasing the case from the Mediation Program. After that point, counsel s h a ll direct all inquiries and filings to the Clerk's office. K. A d d itio n al Information A n y questions concerning the Mediation Program should be raised by c o n ta ctin g the Mediation Office at P.O. Box 193939, 95 Seventh Street, San F ran cisco , CA 94119-3939, fax (415) 355-8566 or phone (415) 355-7900. For g en eral questions concerning the rules and procedures of the Ninth Circuit, please co n tact the Clerk's office at P.O. Box 193939, 95 Seventh Street, San Francisco, C A 94119-3939, (415) 355-8000. All communications must include reference to the Ninth Circuit docket number.
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