Frank v. Macomber et al

Filing 75

ORDER signed by Magistrate Judge Carolyn K. Delaney on 06/08/18 PARTIALLY GRANTING 72 Motion for a telephonic settlement conference. This case is set for a settlement conference before the undersigned to occur on 8/29/18 at 9:30 a.m. in courtroo m 24 before Magistrate Judge Carolyn K. Delaney. The parties are required to file a signed "Waiver of Disqualification," or notice of non-waiver of disqualification, no later than 7/01/18. Plaintiff shall have the choice to attend the set tlement conference in person or by video. Within ten days after the filing date of this order, plaintiff shall return the attached form notifying the court whether he would like to attend the settlement conference in person or by video. If plaintiff chooses to appear by video and video conferencing is not available, he may appear by telephone. If plaintiff does not return the form telling the court how he would like to attend the settlement conference, the court will issue orders for plaintiff t o appear by video. Parties are directed to submit confidential settlement statements no later than August 22, 2018 to [e-mail]. Plaintiff shall mail his confidential settlement statement Attn: Magistrate Judge Carolyn K. Delan ey, USDC CAED, 501 I Street, Suite 4-200, Sacramento, California 95814 so it arrives no later than August 22, 2018. The envelope shall be marked CONFIDENTIAL SETTLEMENT CONFERENCE STATEMENT. Parties are also directed to file a Notice of Submission of Confidential Settlement Statement (See L.R. 270(d)). The deadline for filing dispositive motions is VACATED.. (Plummer, M)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

WARREN FRANK, JR.,

11
12
13
14

No. 2:15-cv-2133 KJM CKD P

Plaintiff,
v.

ORDER SETTING SETTLEMENT

JEFF MACOMBER, et al.,

CONFERENCE

Defendants.

15
16

Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983.

17

On May 11, 2018, plaintiff filed a motion requesting a telephonic settlement conference. (ECF

18

No. 72.) The court has determined that this case will benefit from a settlement conference.

19

Therefore, plaintiff’s motion will be partially granted and a settlement conference will be set

20

before the undersigned to occur at the U.S. District Court, 501 I Street, Sacramento, California

21

95814 in Courtroom #24 on August 29, 2018 at 9:30 a.m.

22
23

Parties will be required to file a signed “Waiver of Disqualification” included below, or
notice of non-waiver of disqualification, no later than July 1, 2018.

24

Plaintiff shall have the option to appear at the settlement conference in person or by video

25

conference. In the event video conferencing capabilities are unavailable, plaintiff may appear by

26

telephone. Plaintiff will be required to return the attached form advising the court how he would

27

like to appear at the settlement conference so the court may issue the appropriate orders. A

28

1

1

separate order and writ of habeas corpus ad testificandum will issue once it has been determined

2

how plaintiff will appear.

3

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

4

1. Plaintiff’s motion for a telephonic settlement conference is partially granted and this

5

case is set for a settlement conference before the undersigned to occur on August 29,

6

2018, at 9:30 a.m. at the U. S. District Court, 501 I Street, Sacramento, California

7

95814 in Courtroom #24.
2. The parties are required to file a signed “Waiver of Disqualification,” or notice of non-

8

waiver of disqualification, no later than July 1, 2018.

9
10

3. Plaintiff shall have the choice to attend the settlement conference in person or by

11

video. Within ten days after the filing date of this order, plaintiff shall return the

12

attached form notifying the court whether he would like to attend the settlement

13

conference in person or by video. If plaintiff chooses to appear by video and video

14

conferencing is not available, he may appear by telephone. If plaintiff does not return

15

the form telling the court how he would like to attend the settlement conference, the

16

court will issue orders for plaintiff to appear by video.
4. Parties are instructed to have a principal with full settlement authority present at the

17
18

Settlement Conference or to be fully authorized to settle the matter on any terms. The

19

individual with full authority to settle must also have “unfettered discretion and

20

authority” to change the settlement position of the party, if appropriate. The purpose

21

behind requiring the attendance of a person with full settlement authority is that the

22

parties’ view of the case may be altered during the face to face conference. An

23

authorization to settle for a limited dollar amount or sum certain can be found not to

24

comply with the requirement of full authority to settle1.

25
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
1

26
27
28

2

1

5. Parties are directed to submit confidential settlement statements no later than August

2

22, 2018 to [e-mail]. Plaintiff shall mail his confidential

3

settlement statement Attn: Magistrate Judge Carolyn K. Delaney, USDC CAED, 501 I

4

Street, Suite 4-200, Sacramento, California 95814 so it arrives no later than August 22,

5

2018. The envelope shall be marked “CONFIDENTIAL SETTLEMENT

6

CONFERENCE STATEMENT.” Parties are also directed to file a “Notice of

7

Submission of Confidential Settlement Statement” (See L.R. 270(d)).

8
9

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

10

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

11

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

12
13

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

14

typed or neatly printed, and include the following:

15
16

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

17

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

18

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

19

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

20

dispute.

21

c. A summary of the proceedings to date.

22

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

23

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).

24
25
26
27
28

3

trial.

1
2

e. The relief sought.

3

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

4
5

g. A brief statement of each party’s expectations and goals for the settlement
conference, including how much a party is willing to accept and/or willing to pay.

6
7
8
9

6. The deadline for filing dispositive motions is vacated. That deadline will be reestablished, if necessary, after the settlement conference.
Dated: June 8, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14

1/sp
fran2133.med

15
16
17
18
19
20
21
22
23
24
25
26
27
28

4

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR EASTERN DISTRICT OF CALIFORNIA

9
10

WARREN FRANK, JR.,

11
12
13
14

No. 2:15-cv-2133 KJM CKD P

Plaintiff,
v.

WAIVER OF DISQUALIFICATION

JEFF MACOMBER, et al.,
Defendants.

15
16

Under Local Rule 270(b) of the Eastern District of California, the parties to the herein

17

action affirmatively request that Magistrate Judge Carolyn K. Delaney participate in the

18

settlement conference scheduled for August 29, 2018. To the extent the parties consent to trial of

19

the case before the assigned Magistrate Judge, they waive any claim of disqualification to the

20

assigned Magistrate Judge trying the case thereafter.

21

By:
Plaintiff

22
23

Dated:_________________

24
25
26

By:
Attorney for Defendant
Dated:_________________

27
28

5

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

WARREN FRANK, JR.,

11

Plaintiff,

12
13

No. 2:15-cv-2133 KJM CKD P

v.
JEFF MACOMBER, et al.,

14

PLAINTIFF’S NOTICE ON TYPE OF
APPEARANCE AT SETTLEMENT
CONFERENCE

Defendants.

15
Check one:

16
17

Plaintiff would like to participate in the settlement conference in person.

18
19

Plaintiff would like to participate in the settlement conference by video/telephone.

20
21
22
23
24
25

Date

Warren Frank, Jr.
Plaintiff pro se

26
27
28

6