Nailing v. Fosterer et al

Filing 105

ORDER signed by Magistrate Judge Craig M. Kellison on 05/01/13 ordering this case is set for a settlement conference before Magistrate Judge Jennifer L. Thurston on 06/10/13 at 1:30 p.m. at the U.S. District Court, 510 19th street, Bakersfield, Calif ornia 93301. Defendants' motion to vacate the dispositive motion filing deadline pending mediation 104 is granted. Plaintiff's motion for an extension of the dispositive motion filed deadline 101 is denied as unnecessary. Each party shall provide a confidential settlement conference statement to Sujean Park, so they arrive no later than 06/03/13. (cc: ADR Director and JLT) (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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XAVIER DMETRI NAILING,

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Plaintiff,

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No. 2:09-CV-2475-MCE-CMK

vs.
B.D. FOSTERER, et al.,

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ORDER OF REFERRAL FOR
SETTLEMENT WEEK AND SETTING
SETTLEMENT CONFERENCE

Defendants.

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/

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Plaintiff is a former state prisoner proceeding pro se with an action under 42 U.S.C.

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§1983. This case will be referred to Magistrate Judge Jennifer L. Thurston for the court’s

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Settlement Week Program to conduct a settlement conference June 10, 2013 at 1:30 p.m. at the

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U. S. District Court, 510 19th Street, Bakersfield, California 93301.

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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 June10, 2013, at 1:30 p.m. at the U. S. District Court, 510 19th Street, Bakersfield,

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California 93301.

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2. Defendants’ motion to vacate the dispositive motion filing deadline pending

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mediation (Doc. 104) is granted.

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3. Plaintiff’s motion for an extension of the dispositive motion filing deadline
(Doc. 101) is denied as unnecessary.

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4. Defendants’ lead counsel shall attend in person. A person with full and

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unlimited authority to negotiate and enter into a binding settlement on defendants’ behalf shall

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participate in the settlement conference, but may participate via teleconference.1

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

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

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

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be reset to another date.

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6. Each party shall provide a confidential settlement conference statement to

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Sujean Park, 501 I Street, Suite 4-200, Sacramento, California 95814, or via e-mail at

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[e-mail], so they arrive no later than June 3, 2013 and file a Notice of

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Submission of Confidential Settlement Conference Statement (See Local Rule 270(d)).

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

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

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and time of the settlement conference indicated prominently thereon.

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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. Pittman 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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The confidential settlement statement shall be no longer than three pages in
length, 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

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grounds upon 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 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,

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pretrial, and trial.

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e. The relief sought.

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

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offers and a history of past settlement discussions, offers, and demands.

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g. A brief statement of each party’s expectations and goals for the
settlement conference.

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DATED: May1, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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