Brisbin v. Vulcan Materials Company

Filing 48

ORDER re SETTLEMENT CONFERENCE signed by Magistrate Judge Sheila K. Oberto on 3/7/2013. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN C. BRISBIN,

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CASE NO. 1:11-cv-00568 AWI SKO

Plaintiff,

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v.

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ORDER re SETTLEMENT CONFERENCE

CALMAT CO.,

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Defendant.

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________________________________

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AND RELATED ACTIONS

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This case had been scheduled for a Settlement Conference on March 8, 2013. (Doc. 40.)

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Pursuant to the Court's December 6, 2012, Order re Settlement Conference, the parties were

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required to submit Confidential Settlement Conference Statements ("Settlement Statements") to

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the Court by no later than five (5) business before the Settlement Conference, i.e., by no later

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than March 1, 2013. (See Doc. 36, 1:25-2:3.)

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On February 28, 2013, Defendant/Counter-Claimant Calmat DBA Vulcan Materials

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Company ("Calmat") submitted its Settlement Statement, and on March 1, 2013,

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Counter-Defendant Western Surety Company ("Western Surety") submitted its Settlement

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Statement. (See Docs. 45, 46.) Plaintiff/Counter-Defendant John C. Brisbin, an individual and

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DBA Construction Development Systems, ("Brisbin") did not submit a Settlement Statement,

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and thus failed to comply with the Court's December 6, 2012, Order re Settlement Conference.

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On March 6, 2013, an informal telephonic conference regarding the scheduled March 8,

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2013, Settlement Conference was held in chambers and off the record before Magistrate Judge

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Sheila K. Oberto. Due to Brisbin's failure to comply with the requirements set forth in the

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Court's December 6, 2012, Order re Settlement Conference, the Settlement Conference scheduled

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for March 8, 2013, was CONTINUED to March 29, 2013, at 9:30 a.m. in Courtroom 7 at the

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U.S. District Court, 2500 Tulare Street, Fresno, California, 93721, before Magistrate Judge

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Sheila K. Oberto.

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Consideration of settlement is a serious matter that requires thorough preparation prior to
the settlement conference. Accordingly, IT IS HEREBY ORDERED that:

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1.

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A settlement conference is more likely to be productive if, before the conference, the

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parties exchange written settlement proposals. Brisbin failed to provide a written settlement

Pre-settlement Conference Exchange of Demand and Offer

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proposal and failed to respond to Calmat's settlement demand as required in the Court's

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December 6, 2012, Order re Settlement Conference. (See Doc. 36, 1:17-24.)

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Accordingly, counsel for Brisbin SHALL provide to counsel for Calmat, by no later than

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March 12, 2013, a written itemization of damages and a settlement demand with a brief summary

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of the legal and factual basis supporting the demand, as well as a written response and offer to

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the settlement demand made by Calmat.

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By no later than March 19, 2013, counsel for Calmat shall submit a written response to

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the demand and offer made by counsel for Brisbin with a brief summary of the legal and factual

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basis supporting the response.

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2.

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Brisbin SHALL send a Settlement Statement and Calmat SHALL send a revised

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Settlement Statement to the following email address: [e-mail], by no later

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than March 22, 2013. Additionally, each party shall file a Notice of Submission of Confidential

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Settlement Conference Statement (See Local Rule 270 (d)). Western Surety is not required to

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resubmit a Settlement Statement unless there are revisions to the contentions set forth in its prior

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Settlement Statement.

Submission and Content of Confidential Settlement Conference Statements

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Settlement Statements must be typed and double spaced. Each Settlement Statement
shall include the following:

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a.

A brief summary of the core facts, allegations, and defenses.

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b.

A summary of the proceedings to date.

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c.

An estimate of the cost and time to be expended for further discovery,

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pretrial, and trial.

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d.

The nature of the relief sought.

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e.

An outline of past settlement efforts including information regarding the

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"Pre-settlement Conference Exchange of Demand and Offer" required

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above (including the itemization of damages), and a history of past

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settlement discussions, offers, and demands.

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f.

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A statement of each party’s expectations and goals for the Settlement
Conference.

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3.

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The attorneys who will try the case and parties with full and complete settlement

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authority are required to personally attend the conference.1 An insured party shall appear by a

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representative of the insurer who is authorized to negotiate, and who has authority to settle the

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matter up to the limits of the opposing parties’ existing settlement demand. An uninsured

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corporate party shall appear by a representative authorized to negotiate, and who has authority to

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settle the matter up to the amount of the opposing parties’ existing settlement demand or offer.

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It is difficult for a party who is not present to appreciate the process and the reasons that

Attendance of Trial Counsel and Parties Required

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Insurance carriers, business organizations, and governmental bodies or agencies whose
settlement agreements are subject to approval by legislative bodies, executive committees, boards
of directors or the like shall be represented by a person or persons who occupy high executive
positions in the party organization and who will be directly involved in the process of approval of
any settlement offers or agreements. To the extent possible, the representative shall have the
authority, if he or she deems it appropriate, to settle the action on terms consistent with the
opposing party's most recent demand.

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may justify a change in one’s perspective toward settlement. Accordingly, having a client with

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authority available by telephone is not an acceptable alternative, except under the most

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extenuating circumstances.2 Absent truly good cause, i.e., a medical emergency, a party's failure

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to personally appear at the Settlement Conference as ordered may result in the imposition of

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sanctions.

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The Court expects both the lawyers and the party representatives to be fully prepared to

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participate. The Court encourages all parties to keep an open mind in order to reassess their

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previous positions and to discover creative means for resolving the dispute.

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4.

Issues to Be Discussed

The parties shall be prepared to discuss the following at the settlement conference:

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a.

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Goals in the litigation and problems they would like to address in the
settlement conference and understanding of the opposing side’s goals.

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b.

The issues (in and outside the lawsuit) that need to be resolved.

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c.

The strengths and weaknesses of their case.

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d.

Their understanding of the opposing side’s view of the case.

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e.

Their points of agreement and disagreement (factual and legal).

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f.

Any financial, emotional, and/or legal impediments to settlement.

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g.

Whether settlement or further litigation better enables the accomplishment

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of their respective goals.

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h.

Any possibilities for a creative resolution of the dispute.

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5.

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The parties are expected to address each other with courtesy and respect, and are

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Statements Inadmissible

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Out of town or out of state travel and the purchase of an airplane ticket are not
extenuating circumstances.

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encouraged to be frank and open in their discussions. Statements made by any party during the

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settlement conference are not to be used in discovery and will not be admissible at trial.

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IT IS SO ORDERED.

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Dated:
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March 7, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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