Kirchner v. Biter et al

Filing 44

ORDER Referring Case to Post-Screening ADR and STAYING CASE signed by Magistrate Judge Barbara A. McAuliffe on 03/17/2021. Settlement Statement due by 5/14/2021; Settlement Conference set for 5/21/2021 at 09:30 AM in Courtroom 9 (SAB) before Magistrate Judge Stanley A. Boone. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KRISTOPHER KIRCHNER,

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Plaintiff,

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v.

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BITER, et al.,

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Defendants.

Case No. 1:18-cv-00516-AWI-BAM (PC)
ORDER REFERRING CASE TO POSTSCREENING ADR AND STAYING CASE
Hearing:
Date:
Time:
Judge:
Location:

Settlement Conference
May 21, 2021
9:30 a.m.
Stanley A. Boone
via Zoom Videoconference

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Plaintiff Kristopher Kirchner (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Defendants Henderson, Harden, and

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Diaz have filed a motion to dismiss in response to the complaint.

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Because it takes years to get to trial, the Court has identified this case as an appropriate case

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for post-screening ADR (Alternative Dispute Resolution), which is an effort to resolve such cases

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more expeditiously and less expensively. No claims, defenses, or objections shall be waived by the

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parties’ participation. In appropriate cases, defense counsel from the California State Attorney

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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 to allow the parties to investigate Plaintiff’s claims, meet and confer, and then participate in a
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settlement conference.
Therefore, this case will be referred to Magistrate Judge Stanley A. Boone to conduct a video

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settlement conference, via the Zoom videoconferencing application, on May 21, 2021, at 9:30 a.m.

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The Court will issue any necessary transportation order in due course.
Counsel for Defendants shall contact Courtroom Deputy, Mamie Hernandez, at (559) 499-

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5672 or [e-mail] for the video and dial-in information, including any

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necessary passcodes, for all parties. Counsel for Defendants is also required to arrange for Plaintiff’s

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participation by contacting the Litigation Coordinator at the institution where Plaintiff is housed and

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providing the necessary Zoom contact information.

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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 after

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conferring with others, defense counsel in good faith finds that a settlement conference would be a

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waste of resources, defense counsel may move to opt out of this early settlement conference. A

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written notice to opt out must be filed within thirty (30) days of the date of the issuance of this order.
The parties shall each submit to Judge Boone a confidential settlement conference statement,

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as described below, to arrive at least seven days (one week) prior to the conference.
The Court puts the parties on notice that if Plaintiff has any outstanding criminal restitution

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obligation, fines and/or penalties, these settlement negotiations shall not be geared towards what the

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restitution obligation is, but what the value of the case itself is to each side, irrespective of any

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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 to allow the parties an opportunity to settle their dispute before the

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discovery process begins. Except as provided herein or by subsequent court order, no other

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pleadings or other documents may be filed in this case during the stay of this action. The

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parties shall not engage in formal discovery, but may engage in informal discovery to

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If the case does not settle, the Court will then lift the stay and reset the briefing schedule on
Defendants’ motion to dismiss.
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prepare for the settlement conference.

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2. This case is set for a video settlement conference, via the Zoom videoconferencing

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application, before Magistrate Judge Stanley A. Boone on May 21, 2021, at 9:30 a.m.

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

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settlement shall attend via the Zoom videoconferencing application.2

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

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

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in person may result in the cancellation of the conference and the imposition of sanctions.

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The manner and timing of Plaintiff’s transportation to and 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

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address: [e-mail]. Plaintiff shall mail his confidential settlement

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statement to U.S. District Court, 2500 Tulare Street, Fresno, California 93721, “Attention:

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Magistrate Judge Stanley A. Boone.” The envelope shall be marked “Confidential

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Settlement Statement.” Settlement statements shall arrive no later than May 14, 2021.

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Parties shall also file a Notice of Submission of Confidential Settlement Statement (See

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Local Rule 270(d)). Settlement statements should not be filed with the Clerk of the Court

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nor served on any other party. Settlement statements shall be clearly marked

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“Confidential” with the date and time of the settlement conference indicated prominently

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thereon.
6. The confidential settlement statement shall be no longer than five pages in length, typed

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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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In light of the coronavirus (COVID-19) outbreak and the evolving coronavirus protocols, the Court
may issue an order at a later date requiring the parties to appear in person.
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prevailing on the claims and defenses; and a description of the major issues in

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

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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 pay.

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f. If parties intend to discuss the joint settlement of any other actions or claims not in

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this suit, give a brief description of each action or claim as set forth above,

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including case number(s) if applicable.

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7. 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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8. If defense counsel wishes to “opt-out” of this settlement for the reasons stated above,

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counsel must do so within thirty (30) days of this order by filing a “Notice of Opt-Out and

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Request to Vacate Settlement Conference.”

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9. The parties remain obligated to keep the Court informed of their current address at all times

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during the stay and while the action is pending. Any change of address must be reported

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promptly to the Court in a separate document captioned for this case and entitled “Notice

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of Change of Address.” See Local Rule 182(f).

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10. 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:

/s/ Barbara

March 17, 2021

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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