Dillingham v. Emerson
Filing
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ORDER Referring Case to Post-Screening ADR and STAYING CASE for 120 Days signed by Magistrate Judge Barbara A. McAuliffe on 04/30/2020. Settlement Conference set for 8/25/2020 at 09:30 AM in Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JERRY DILLINGHAM,
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Case No. 1:18-cv-00507-AWI-SAB (PC)
Plaintiff,
v.
N. EMERSON, et al.,
Defendants.
ORDER REFERRING CASE TO POSTSCREENING ADR AND STAYING CASE
FOR 120 DAYS
Date: August 25, 2020
Time: 9:30 a.m.
Place: Courtroom 8 (BAM) Before the
Honorable Barbara A. McAuliffe
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Plaintiff Jerry Dillingham is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Because it takes years to get to trial, the Court has identified this case as an appropriate
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case for post-screening ADR (Alternative Dispute Resolution), which is an effort to resolve such
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cases more expeditiously and less expensively. No claims, defenses or objections shall be waived
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by the parties’ participation. In appropriate cases, defense counsel form the California State
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Attorney General’s Office has agreed to participate in these early settlements.
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As set forth in the screening order, Plaintiff has stated a cognizable civil rights claim. But,
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stating a cognizable claim does not mean Plaintiff will prevail at trial. Thus, the Court stays this
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action for a period of 120 days to allow the parties to investigate Plaintiff’s claims, meet and
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confer, and then participate in a settlement conference.
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Therefore, this case will be referred to Magistrate Judge Barbara A. McAuliffe to conduct
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a settlement conference at the United States Courthouse in Fresno, California on August 25, 2020
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at 9:30 a.m. The Court will issue the necessary transportation order in due course.
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In issuing this order, there is a presumption that this case will proceed to a settlement
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conference.1 However, if after investigating Plaintiff’s claims and speaking with Plaintiff, and
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after conferring with others, defense counsel in good faith finds that a settlement conference
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would be a waste of resources, defense counsel may move to opt out of this early settlement
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conference. A written notice to opt out must be filed within 30 days of the date of the issuance of
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this order.
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The parties shall each submit to Judge McAuliffe a confidential settlement conference
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statement, as described below, to arrive at least seven days prior (one week) to the conference.
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The Court puts the parties on notice that if Plaintiff has any outstanding criminal
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restitution obligation, fines and/or penalties, these settlement negotiations shall not be geared
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towards what the restitution obligation is, but what the value the of the case itself is to each side,
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irrespective of any outstanding restitution obligation.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1.
This action is STAYED for 120 days to allow the parties an opportunity to settle
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their dispute before the discovery process begins. Except as provided herein or by
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subsequent court order, no other pleadings or other documents may be filed in this
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case during the stay of this action. The parties shall not engage in formal
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discovery, but may engage is informal discovery to prepare for the settlement
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conference.
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2.
This case is set for a settlement conference before Magistrate Judge Barbara A.
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McAuliffe on August 25, 2020, at 9:30 a.m., at the United States Courthouse
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located at 2500 Tulare Street, Fresno, California.
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If the case does not settle, the Court will then issue the Discovery and Scheduling Order.
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A representative with full and unlimited authority to negotiate and enter into a
binding settlement shall attend in person.
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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
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appear in person may result in the cancellation of the conference and the
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imposition of sanctions. The manner and timing of Plaintiff’s transportation to and
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from the conference is within the discretion of CDCR.
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5.
Defendants shall provide a confidential settlement statement to the following email
address: bamorders@caed.uscourts.gov. Plaintiff shall mail his confidential
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settlement statement to U.S. District Court, 2500 Tulare Street, Fresno, California,
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93721, “Attention: Magistrate Judge Barbara A. McAuliffe.” The envelope
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shall be marked “Confidential Settlement Statement”. Settlement statements shall
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arrive no later than August 18, 2020. Parties shall also file a Notice of
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Submission of Confidential Settlement Statement (See Local Rule 270(d)).
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Settlement statements should not be filed with the Clerk of the Court nor served
on any other party. Settlement statements shall be clearly marked “confidential”
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with the date and time of the settlement conference indicated prominently thereon.
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6.
The confidential settlement statement shall be no longer than five pages in length,
typed or neatly printed, and include the following:
a. A brief statement of the facts of the case.
b. A brief statement of the claims and defenses, i.e., statutory or other grounds
upon which the claims are founded; a forthright evaluation of the parties’
likelihood of prevailing on the claims and defenses; and a description of the
major issues in dispute.
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c. An estimate of the cost and time to be expended for further discovery, pretrial,
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and trial.
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d. 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.
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e. 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
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pay.
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f. If the parties intend to discuss the joint settlement of any other actions or
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claims not in this suit, give a brief description of each action or claim as set
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forth above, including case number(s), if applicable.
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If a settlement is reached at any point during the stay of this action, the parties
shall file a Notice of Settlement in accordance with Local Rule 160.
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If the defense counsel wishes to “opt- out” of this settlement for the reasons stated
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above, counsel must do so within thirty (30) days of this order by filing a “Notice
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of Opt-Out and Request to Vacate Settlement Conference.”
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The parties remain obligated to keep the court informed of their current address at
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all times during the stay and while the action is pending. Any change of address
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must be reported promptly to the court in a separate document captioned for this
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case and entitled “Notice of Change of Address.” See Local Rule 182(f).
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A failure to follow these procedures may result in the imposition of sanctions by
the court.
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IT IS SO ORDERED.
Dated:
April 30, 2020
UNITED STATES MAGISTRATE JUDGE
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