Gornick v. California Department of Corrections, et al.
Filing
126
ORDER signed by Chief Judge B. Lynn Winmill on 9/23/2011 setting Settlement Conference for 9/29/2011 at 10:00 AM at Pelican Bay State Prison before Magistrate Judge Nandor J Vadas. (Lundstrom, T)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
FRESNO DIVISION
PAUL A. GORNICK SR.,
Case No. 1:06-CV-00296-BLW-LMB
Plaintiff,
ORDER
v.
CALIFORNIA DEPT. OF
CORRECTIONS, J. PAYNE,
DOCANTO, BRANDON, SGT. DICKS,
et al.,
Defendants.
IT IS ORDERED that a settlement conference shall be held in this action on
Thursday, September 29, 2011, at 10:00 a.m. before United States Magistrate Judge
Nandor J. Vadas at Pelican Bay State Prison.
Mandatory Appearance Requirement
Plaintiff shall attend in person, along with Defendants’ lead counsel and a person
with full and unlimited authority to negotiate and enter into a binding settlement on
Defendants’ behalf. Those in attendance must be prepared to discuss the claims, defenses,
and damages. Governmental entities may request permission to appear through litigation
counsel only, but the individual with full and unlimited authority must be immediately
ORDER- 1
available to discuss and modify settlement authority.1 The parties must be prepared to
fully explore all settlement options. The failure of any counsel, party or authorized person
subject to this order to appear in person will result in the immediate imposition of
sanctions. Sanctions will include, but will not be limited to, the attorney fees and travel
costs of the other parties in the case. In addition, the conference will not proceed and will
be reset to another date.
In cases where a party is incarcerated at the time of the scheduled conference,
defense counsel shall provide a copy of the order to the correctional institution’s security
personnel.
Preparing for the Conference
Counsel for the Department of Correction must give notice of the conference to all
Defendants who have made an appearance as of the date of this order. All conference
discussions will be informal, off the record, privileged, and confidential. In preparation
for the conference, the parties shall submit a settlement conference brief to chambers,
through their counsel where applicable, on or before September 27, 2011 at 4:30 p.m.
Defendants shall send the settlement brief to njvpo@cand.uscourts.gov. If possible,
1
The term “full authority to settle” means that the individuals attending the mediation
conference must be authorized to fully explore settlement options and to agree at that time to any
settlement terms acceptable to the parties. G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d
648, 653 (7th Cir. 1989). The individual must also have “unfettered discretion and authority” to change the
settlement position of the party. Pitman v. Brinker Int’l.,Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003). The
purpose behind requiring the attendance of a person with full settlement authority is that the parties’ view
of the case may be altered during the face to face conference. Pitman at 486. An authorization to settle for a
limited dollar amount or sum certain is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 596-97
(8th Cir. 2001).
ORDER- 2
Plaintiff should fax his statement to Judge Vadas at (707) 441-1659, or mail it to him at
the Federal Building, 514 H Street, 2nd Floor, Eureka, CA 95501.2
Plaintiff’s settlement brief must include the following:
1. A brief description of the case and the claims asserted;
2. A specific demand for settlement addressing all relief or remedies sought; and
3. A brief description of any previous settlement efforts.
Defendants’ settlement brief must include the following:
1. A brief description of the Defendants’ position concerning Plaintiff’s
allegations and a list of defenses;
2. A specific and current response to Plaintiff’s requests for relief in the Complaint
and the Defendants’ specific offer of settlement;
3. A budget of litigation costs between now and the time of trial; and
4. A brief description of any previous settlement efforts.
A general statement that a party will “negotiate in good faith” is not a specific demand or
offer as contemplated by this Order. The settlement conference briefs are limited to five
(5) pages and must not include exhibits, attachments or incorporate by reference the
pleadings on file in the case. Defendants’ counsel shall also bring a settlement
agreement form for use in memorializing the parties’ agreement.
2
Because of the short time frame in which this conference was set to accommodate the parties, Plaintiff
may lack adequate notice of the order setting the settlement conference in this case to prepare a settlement
conference brief. Plaintiff shall comply with the order to the extent it is possible to do so. If, at the time of the
conference, Judge Vadas has not received Plaintiff’s brief, Plaintiff shall provide a copy to Judge Vadas at that time
for his review.
ORDER- 3
All information provided during the conference is considered confidential and
privileged, and the parties may request that the briefs be destroyed at the end of the
conference. No oral statement, written document, or other material considered during the
mediation procedure may be used against any party to this litigation. The ADR provider
shall not be called to testify regarding the settlement conference proceedings.
Request to Vacate Conference
If the case settles in its entirety before the scheduled date of the conference,
counsel and any unrepresented parties must still appear in person, unless a joint motion to
vacate the conference date is submitted no less than twenty-four (24) hours before the
scheduled conference.
Inquiries about the Conference
Questions regarding the settlement conference may be directed to Linn Van Meter,
Administrative Law Clerk, at (707) 455-3612
DATED: September 23, 2011
Honorable B. Lynn Winmill
Chief U. S. District Judge
ORDER - 4
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