Spencer v. Sherman

Filing 23

ORDER Setting Settlement Conference, signed by Magistrate Judge Gary S. Austin on 9/19/2018: Settlement Conference set for 1/29/2019 at 09:30 AM in Bakersfield, 510 19th Street before Magistrate Judge Jennifer L. Thurston. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD B. SPENCER,

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1:17-cv-00479-AWI-GSA-PC

Plaintiff,
vs.

ORDER SETTING SETTLEMENT
CONFERENCE

STUART SHERMAN,
Defendant.

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Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. The Court has determined

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that this case will benefit from a settlement conference. Therefore, this case will be referred to

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Magistrate Judge Jennifer L. Thurston to conduct a settlement conference at the U. S. District

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Court, 510 19th Street, Bakersfield, California 93301 on January 29, 2019 at 9:30 a.m.

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The court will issue the necessary transportation order in due course.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. This case is set for a settlement conference before Magistrate Judge Jennifer L.

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Thurston on January 29, 2019 at 9:30 a.m. at the U. S. District Court, 510 19th Street,

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Bakersfield, California 93301.

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2. A representative with full and unlimited authority to negotiate and enter into a binding

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settlement shall attend in person.1

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3. Those in attendance must be prepared to discuss the claims, defenses and damages.

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The failure of any counsel, party or authorized person subject to this order to appear in

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person may result in the imposition of sanctions. In addition, the conference will not

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proceed and will be reset to another date.
4. At least 21 days before the settlement conference, plaintiff SHALL submit to

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defendant, by mail, a written itemization of damages and a meaningful settlement

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demand, which includes a brief explanation of why such a settlement is appropriate,

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not to exceed ten pages in length. Thereafter, no later than 14 days before the

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settlement conference, defendant SHALL respond, by telephone or in person, with an

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acceptance of the offer or with a meaningful counteroffer, which includes a brief

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explanation of why such a settlement is appropriate. If settlement is achieved, defense

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counsel is to immediately inform the courtroom deputy of Magistrate Judge Thurston.

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While the exercise of its authority is subject to abuse of discretion review, “the district court has the
authority to order parties, including the federal government, to participate in mandatory settlement
conferences… .” United States v. United States District Court for the Northern Mariana Islands, 694 F.3d 1051,
1053, 1057, 1059 (9th Cir. 2012)(“the district court has broad authority to compel participation in mandatory
settlement conference[s].”). 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), cited with approval in Official Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1396 (9th Cir. 1993).
The individual with full authority to settle must also have “unfettered discretion and authority” to change the
settlement position of the party, if appropriate. Pitman v. Brinker Int’l., Inc., 216 F.R.D. 481, 485-86 (D. Ariz.
2003), amended on recon. in part, Pitman v. Brinker Int’l., Inc., 2003 WL 23353478 (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, 216 F.R.D. at 486. An authorization to
settle for a limited dollar amount or sum certain can be found not to comply with the requirement of full
authority to settle. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 596-97 (8th Cir. 2001).
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5. If settlement is not achieved informally, each party shall provide a confidential
settlement statement no later than January 22, 2019 to [e-mail].
6. Plaintiff shall mail his confidential settlement statement Attn: Magistrate Judge

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Jennifer L. Thurston, U.S. District Court, 510 19th Street, Suite 200, Bakersfield,

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California 93301 so it arrives no later than January 22, 2019. The envelope shall be

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marked “CONFIDENTIAL SETTLEMENT CONFERENCE STATEMENT.” Parties

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are also directed to file a “Notice of Submission of Confidential Settlement Statement”

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(See L.R. 270(d)).

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Settlement statements should not be filed with the Clerk of the Court nor served on

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any other party. Settlement statements shall be clearly marked “confidential” with

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the date and time of the settlement conference indicated prominently thereon.

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The confidential settlement statement shall be no longer than five pages in length,

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typed or neatly printed, and include the following:

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a. A brief statement of the facts of the case.

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b. A brief statement of the claims and defenses, i.e., statutory or other grounds upon

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which the claims are founded; a forthright evaluation of the parties’ likelihood of

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prevailing on the claims and defenses; and a description of the major issues in

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dispute.

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c. A summary of the proceedings to date.

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

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trial.

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e. The relief sought.

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f. The party’s position on settlement, including present demands and offers and a

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history of past settlement discussions, offers, and demands, and
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g. A brief statement of each party’s expectations and goals for the settlement

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conference, including how much a party is willing to accept and/or willing to pay.

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IT IS SO ORDERED.
Dated:

September 19, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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