The Active Network, Inc. v. Electronic Arts, Inc.

Filing 36

Notice and Order for Early Neutral Evaluation Conference. The Early Neutral Evaluation set for July 30, 2010, at 2:00 P.M. is vacated and reset for August 11, 2010 at 2:00 P.M. in Courtroom F before United States Magistrate Judge William V. Gallo. Signed by Magistrate Judge William V. Gallo on 7/21/2010.(knh)

-WVG The Active Network, Inc. v. Electronic Arts, Inc.

Doc. 36

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Early Neutral Evaluation set for July 30, 2010, at 2:00 P.M. is VACATED and reset for August 11, 2010 at 2:00 P.M. before United States Magistrate Judge William V. Gallo, United States Courthouse, Courtroom F, First Floor, 940 Front Street, San Diego, California. The purpose of the Early Neutral Evaluation Conference UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA THE ACTIVE NETWORK, INC., Plaintiffs, v. ELECTRONIC ARTS, INC., Defendants. ) ) ) ) ) ) ) ) ) Civil No.10-CV-1158-BEN(WVG) NOTICE AND ORDER FOR EARLY NEUTRAL EVALUATION CONFERENCE

("ENE")is to permit an informal discussion between the attorneys, parties and the settlement judge of every aspect of the lawsuit in an effort to achieve an early resolution of the case. All confer-

ence discussions will be informal, off the record, privileged and confidential. Counsel for non-English speaking parties is responsible for arranging for the appearance of an interpreter at the 1

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conference. Pursuant to Rule 16.1(c) of the Local Rules of the United States District Court for the Southern District of California, both counsel and the parties who have full and unlimited authority1 to negotiate and enter into a binding settlement shall appear in person at the conference and shall be prepared to discuss the claims, defenses, damages and settlement. Unless there are extraordinary circumstances, persons

required to attend the conference pursuant to this Order shall not be excused from personal attendance. Requests for excuse from

attendance for extraordinary circumstances shall be made in writing at least 48 hours prior to the conference. Where the suit involves

the United States or one of its agencies, only counsel for the United States with full settlement authority need appear. The Court requires that the parties file Confidential ENE Statements. No later than five court days prior to the ENE, the

parties shall submit directly to Judge Gallo's chambers confidential statements of five pages or less which outline the nature of the case, the claims, the defenses, and the parties' positions regarding settlement of the case. In the event the case does not settle at the Early Neutral

"Full authority to settle" means that the individuals at the settlement conference must be authorized to fully explore settlement options and to agree at that time to any settlement terms acceptable to the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir. 1989). The person needs to have "unfettered discretion and authority" to change the settlement position of a party. Pitman v. Brinker Intl., Inc., 216 F.R.D. 481, 485-486 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement authority to attend the conference includes that the person's view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum certain of authority is not adequate. Nick v. Morgan's Foods, Inc., 270 F.3d 590 (8th Cir. 2001).

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Evaluation Conference, the parties shall also be prepared to discuss the following matters at the conclusion of the conference. 1. Procedure Any anticipated objections under Federal Rule of Civil 26(a)(1)(E) to the initial disclosure provisions of

Federal Rule of Civil Procedure 26(a)(1)(A-D); 2. The scheduling of the Federal Rule of Civil Procedure

26(f) conference; 3. The date of initial disclosure and the date for lodging

the discovery plan following the Rule 26(f) conference; and, 4. The scheduling of a Case Management Conference pursuant

to Federal Rule of Civil Procedure 16(b). The Court will issue an appropriate order addressing these issues and setting dates as appropriate. Plaintiff's counsel shall give notice of the ENE to all parties responding to the Complaint after the date of this Notice. Local Rule 16.1(c) requires that an ENE take place within 45 days of the filing of the first answer. conferences are rarely granted. Requests to continue ENE

However, the Court will consider

formal, written ex parte requests to continue an ENE conference when extraordinary circumstances exist that make a continuance appropriate. In and of itself, having to travel a long distance to appear Absent

at the ENE conference is not an extraordinary circumstance.

extraordinary circumstances, requests for continuances of the ENE conference may not be considered unless submitted in writing no less than seven calendar days prior to the scheduled conference. /// /// /// 3

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Questions regarding the ENE in this case may be directed to the Magistrate Judge's Research Attorney at [phone].

July 21, 2010

Hon. William V. Gallo U.S. Magistrate Judge

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