Pokorny et al v. Quixtar Inc et al

Filing 252

ORDER Appointing Special Master. Signed by Judge Samuel Conti on 12/27/2012. (sclc2, COURT STAFF) (Filed on 12/27/2012)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 10 For the Northern District of California United States District Court 9 JEFF POKORNY, LARRY BLENN, and KENNETH BUSIERE, on behalf of themselves and those similarly situated, 11 Plaintiffs, 12 v. 13 14 QUIXTAR INC., et al., 15 Defendants. 16 17 18 I. ) Case No. 07-cv-0201-SC ) ) ORDER APPOINTING SPECIAL ) MASTER ) ) ) ) ) ) ) ) ) SCOPE OF ORDER 1. Order Applicable to All Related Cases. This Order is 19 binding on all parties and their counsel in the instant case and in 20 any cases subsequently made part of these proceedings, and shall 21 govern each case in the proceedings unless the Court states by 22 further Order that this Order relates only to specific cases. 23 2. Appointment of Special Master. Pursuant to Federal Rule 24 of Civil Procedure 53, the Court's Order of November 30, 2012 (ECF 25 No. 246 ("Nov. 30 Order")) and section 6.1.2 of the parties' 26 Amended Settlement Agreement (ECF No. 162-2 ("ASA")), and with the 27 consent of the parties, the Court hereby appoints the Honorable 28 James Larson, United States Magistrate Judge (Retired), of JAMS, as 1 a Special Master to assist the Court in this litigation 2 (hereinafter "Special Master"). 3 4 5 II. BASIS FOR APPOINTMENT UNDER RULES 53(a) AND 53(b)(1) 3. Basis for Appointment. The Special Master is hereby 6 appointed pursuant to Rule 53(a)(1) to perform duties consented to 7 by the parties (Rule 53(a)(1)(A)), to make findings of fact on 8 issues to be decided by the Court because appointment is warranted 9 by an exceptional condition, namely, the volume of special hardship United States District Court For the Northern District of California 10 11 claims requiring evaluation (Rule 53(a)(1)(B)(i)). 4. No Grounds for Disqualification. Pursuant to Rule 12 53(a)(2) and 53(b)(3), the Special Master shall file an affidavit 13 with this Court that states that he has no relationship to the 14 parties, counsel, action, or Court that would require 15 disqualification of a judge under 28 U.S.C. ยง 455. 16 course of these proceedings, the Special Master and the parties 17 shall notify this Court immediately if they become aware of any 18 potential grounds that would require disqualification. 19 5. Fairness Considerations. During the Pursuant to Rule 53(a)(3), the 20 Court has considered the fairness of imposing the likely expenses 21 of the Special Master on the parties. 22 appointment and use of the Special Master will materially advance 23 the litigation, thereby achieving considerable cost-savings to all 24 parties. 25 specifically contemplates appointment of a Special Master, that the 26 parties have consented to the Special Master's appointment, and 27 that they have agreed to arrange the Special Master's compensation, 28 as discussed in paragraph 13 herein. The Court believes that the Moreover, the Court notes that the parties' ASA 2 The Court will protect 1 against unreasonable expenses and delay through regular 2 communication with the Special Master. 3 6. Pursuant to Rule Proper Notice Given to All Parties. 4 53(b)(1), the Court, in its November 30 Order, gave the parties 5 notice of its intent to appoint the Special Master and an 6 opportunity to be heard with respect to such appointment before 7 issuing this Order. 8 9 United States District Court For the Northern District of California 10 III. SPECIAL MASTER'S DUTIES, AUTHORITY, AND COMPENSATION 7. Diligence. Pursuant to Rule 53(b)(2), the Court hereby 11 directs the Special Master to proceed with all reasonable diligence 12 in performing his duties. 13 8. Scope of Special Master's Duties. Pursuant to Rule 14 53(b)(2)(A), the Special Master shall assist the Court with matters 15 such as: determining whether a particular person is covered by an 16 arbitration agreement; if so, determining which arbitration 17 agreement applies; determining whether the terms of the arbitration 18 agreement are enforceable; determining where and before whom 19 arbitration shall occur, if at all; determining the order in which 20 cases shall be arbitrated; resolving motions now pending before 21 this Court, as well as future motions; determining any issue of law 22 or fact necessary to discharging the foregoing duties, subject to 23 review as provided in paragraphs 15 through 19; and other matters 24 in which the Court wishes to utilize his services. 25 26 27 28 9. Scope of Special Master's Authority. The Special Master shall have the authority provided in Rule 53(c) and 53(d). 10. Procedure for Motions Submitted to Special Master. Motion practice before the Special Master, if any, shall be 3 1 conducted pursuant to the Local Rules and General Orders of this 2 Court. 3 orders governing procedures for motion practice. 4 provide to the Special Master three sets of all motion papers he is 5 to consider, directing the papers to his attention at: JAMS, Two 6 Embarcadero Center, Suite 1500, San Francisco, California. 7 The Special Master may, in his discretion, issue other 11. Ex Parte Communications. The parties shall Pursuant to Rule 53(b)(2)(B), 8 the Special Master may communicate ex parte with the Court at any 9 time, without providing notice to the parties. The Special Master United States District Court For the Northern District of California 10 may communicate ex parte with any party or its counsel, as the 11 Special Master deems appropriate, for the purposes of ensuring the 12 efficient administration and management of this litigation, 13 including the making of informal suggestions to the parties to 14 facilitate compliance with Orders of this Court. 15 communications shall not, however, address the merits of any 16 substantive issue, except that, if the parties seek assistance from 17 the Special Master in resolving a dispute regarding a substantive 18 issue, the Special Master may engage in ex parte communications 19 with a party or counsel regarding the merits of the particular 20 dispute, for the purpose of mediating or negotiating a resolution 21 of that dispute, but only with the prior permission of those 22 opposing counsel who are pertinent to the particular dispute. 23 12. Such ex parte Preservation of Materials and Preparation of Record. 24 Pursuant to Rule 53(b)(2)(C), the Special Master shall maintain 25 orderly files consisting of all documents submitted to him by the 26 parties and any of his written orders, findings, and/or 27 recommendations. 28 file any written orders, findings, and/or recommendations with the Pursuant to Rule 53(e), the Special Master shall 4 1 Court via the Court's Electronic Case Filing system ("ECF"), 2 consistent with Civil Local Rule 5-4 and General Order 45. 3 filing shall fulfill the Special Master's duty to serve his order 4 on the parties. 5 other than his written orders, findings, and/or recommendations 6 shall be filed in accordance with paragraph 17 herein. 13. 7 Such Any records of the Special Master's activities Compensation. Pursuant to Rule 53(b)(2)(E) and 53(g), 8 the parties shall confer with the Special Master to set his rates 9 and the proportion of his fees and expenses that each party shall United States District Court For the Northern District of California 10 bear. 11 other personnel to assist in completion of the duties set forth in 12 this Order, and the Special Master shall be reimbursed for payments 13 made to such personnel as part of his expenses. 14 shall prepare a monthly invoice for his fees and expenses, which he 15 shall provide to counsel. 16 The Special Master may hire or employ, at a reasonable rate, 14. The Special Master Such invoices shall be paid promptly. Special Master's Reports to Court. Pursuant to Rule 17 53(f), the Special Master shall report to the Court as directed by 18 the Court. 19 20 21 IV. ACTION ON SPECIAL MASTER'S ORDERS, REPORTS, OR RECOMMENDATIONS 15. Scope of Section. Pursuant to Rules 53(b)(2)(D) and 22 53(g), the procedures described in paragraphs 16 through 19 herein 23 shall govern any action on the Special Master's orders, reports, 24 and/or recommendations. 25 16. Time Limits for Review. Time shall be computed in 26 accordance with Federal Rule of Civil Procedure 6(a). 27 wishing to file objections to or a motion to adopt or modify the 28 Special Master's orders, reports, and/or recommendations must file 5 Any party 1 such objections or motion with the Court within fourteen (14) days 2 from the day the Special Master filed the order, report, and/or 3 recommendation via ECF. 4 the opposing party shall have seven (7) days to respond, and the 5 moving/objecting party shall have seven (7) days to reply. 6 of objection, the Special Master's order shall remain in effect 7 until the Court rules on the objection. 8 9 17. If any party files an objection or motion, Filing the Record for Review. In case The party filing the objection or motion shall submit with such objection or motion any United States District Court For the Northern District of California 10 record necessary for the Court to review the Special Master's 11 order, report, and/or recommendation, including any transcripts of 12 proceedings before the Special Master and any documents submitted 13 by the parties in connection with the Special Master's order, 14 report, and/or recommendation. 15 constitute grounds for the Court to overrule the objection or deny 16 the motion. 17 18. Failure to provide the record shall Standard for Court's Review. Pursuant to Rule 53(f)(3), 18 in the absence of a stipulation to a higher standard (see ECF No. 19 248), the Court shall review de novo any findings of fact made or 20 recommended by the Special Master. 21 any conclusions of law made or recommended by the Special Master. 22 The Court will set aside the Special Master's ruling on a 23 procedural matter only for an abuse of discretion. 24 19. The Court shall review de novo Court's Actions on Special Master's Orders. Pursuant to 25 Rule 53(g)(1), in acting on an order, report, or recommendation of 26 the Special Master, the Court shall afford each party an 27 opportunity to be heard and, in its discretion, may receive 28 evidence, and may adopt or affirm; modify; wholly or partly reject 6 1 or reverse; resubmit to the Special Master with instructions; or 2 make any further orders it deems appropriate. 3 4 IT IS SO ORDERED. 5 6 7 Dated: December 27, 2012 UNITED STATES DISTRICT JUDGE 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?