Vann v. Massage Envy Franchising, LLC et al

Filing 25

Third Amended NOTICE AND ORDER for Early Neutral Evaluation Conference. Early Neutral Evaluation set for 4/17/2014 09:00 AM in Courtroom 2A before Magistrate Judge William V. Gallo. The ENE set for May 12, 2014 at 9:00 AM is vacated. Signed by Magistrate Judge William V. Gallo on 3/19/2014.(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TERRENCE ALLAN VANN,
et al.,

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Plaintiffs,
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v.
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MASSAGE ENVY FRANCHISING,
LLC, et al.,

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Defendants.

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Civil No.13-2221-BEN(WVG)
THIRD AMENDED
NOTICE AND ORDER
FOR EARLY NEUTRAL
EVALUATION CONFERENCE

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IT IS HEREBY ORDERED that an Early Neutral Evalua-

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tion ("ENE") of your case will be held on April 17, 2014,

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at 9:00 AM before United States Magistrate Judge William

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V. Gallo, United States Courthouse, Courtroom 2A, Second

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Floor, 221 West Broadway, San Diego, California. The ENE

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set for May 12, 2014 at 9:00 AM is vacated.
The

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following

are

mandatory

guidelines

for

the

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parties preparing for the Early Neutral Evaluation Confer-

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ence.

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1. Purpose of the Conference

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The purpose of the ENE is to permit an informal

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discussion between the attorneys, parties and the settle-

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ment judge of every aspect of the lawsuit in an effort to

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achieve an early resolution of the case.

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discussions will be informal, off the record, privileged

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and

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parties is responsible for arranging for the appearance of

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an interpreter at the conference.

confidential.

Counsel

for

All conference

non-English

speaking

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2. Personal Appearance of Parties Is Required:

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All parties, adjusters for insured defendants, and

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other representatives of a party having full and complete

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authority1 to enter into a binding settlement, and the

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principal attorneys responsible for the litigation, must

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be present in person and legally and factually prepared to

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discuss settlement of the case. See S.D. Cal. Civ. L. R.

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16.1(c).

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3. Full Settlement Authority Required

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In addition to counsel who will try the case, a

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party or party representative with full settlement author-

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ity must be present for the conference.

In the case of a

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"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, 485-86 (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. The person with full settlement authority must be able to
negotiate a settlement without being restricted by any predetermined level
of authority. Nick v. Morgan's Foods, Inc., 270 F.3d 590 (8th Cir. 2001).

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corporate entity, an authorized representative of the

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corporation who is not retained outside counsel must be

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present and must have discretionary authority to commit

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the company to pay an amount up to the amount of the

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plaintiff's prayer (excluding punitive damage prayers).

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The purpose of this requirement is to have representatives

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present who can settle the case during the course of the

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conference without consulting a superior.

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Counsel for a government entity may be excused from

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this requirement so long as the government attorney who

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attends the ENE conference (1) has primary responsibility

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for handling the case; and (2) may negotiate settlement

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offers which the attorney is willing to recommend to the

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government official who has ultimate settlement authority.
Unless

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there

are

extraordinary

circumstances,

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persons required to attend the conference pursuant to this

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Order shall not be excused from personal attendance.

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Requests for excuse from attendance for extraordinary

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circumstances shall be made in writing at least one week

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before

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conference will be grounds for sanctions.

the

conference.

Failure

to

appear

at

the

ENE

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4.

Settlement Proposal and Response Required

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No later than fifteen (15) days before the scheduled

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ENE Conference, Plaintiff(s) shall submit to Defendant(s)

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a written settlement proposal. No later than ten (10) days

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before the scheduled ENE Conference, Defendant(s) shall

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submit a response to Plaintiff(s)' settlement proposal.

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All parties shall be prepared to address in their ENE
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Statements, and discuss at the ENE Conference, the settle-

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ment proposal and the response.

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5.

ENE Statements Required

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The Court requires that the parties file ENE State-

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ments, which may be confidentially submitted within the

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party's discretion.

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prior to the ENE, the parties shall submit directly to the

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undersigned's chambers statements of five pages or less

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which outline the nature of the case, the claims, the

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defenses, and the parties' positions regarding settlement

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of, and attempts to settle the case.

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comply with Judge Gallo's Chambers Rules.

No later than five (5) court days

All briefs must

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The parties shall meet and confer in good faith

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prior to the Early Neutral Evaluation Conference, and

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verify that they have done so in their respective Early

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Neutral Evaluation Conference statements, outlining the

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substance of their discussions and negotiations.
6. Case Management Under The Federal Rules of Civil

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Procedure

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In the event the case does not settle at the ENE

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Conference, the parties shall also be prepared to discuss

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the following matters at the conclusion of the conference.
a.

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Any anticipated objections under Federal Rule of

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Civil Procedure 26(a)(1)(E) to the initial disclosure

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provisions of Federal Rule of Civil Procedure 26(a)(1)(A-

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D);

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b.

The scheduling of the Federal Rule of Civil

Procedure 26(f) conference;
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c.

The date of initial disclosure and the date for

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lodging

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conference; and,

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d.

the

discovery

plan

following

the

Rule

26(f)

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.

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7.

Time Allotted

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The Court generally allots two (2) hours for ENEs.

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Counsel should be

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point.

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writing in the party's ENE statement, accompanied by a

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short explanation.

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prepared to be succinct and to the

Requests for additional time must be made in

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New Parties Must Be Notified by Plaintiff's

Counsel

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Plaintiff's counsel shall give notice of the ENE

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Conference to all parties responding to the Complaint

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after the date of this Notice.

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9.

Requests to Continue an ENE Conference

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Civil Local Rule 16.1(c) requires that an ENE take

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place within 45 days of the filing of the first answer.

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Requests to continue ENE conferences are rarely granted.

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Counsel seeking to reschedule an ENE must first confer

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with opposing counsel.

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written ex parte requests to continue an ENE conference

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when extraordinary circumstances exist that make a contin-

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uance appropriate.

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long distance to appear at the ENE conference is not an

The Court will consider formal,

In and of itself, having to travel a

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extraordinary circumstance.

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stances, requests for continuances of the ENE conference

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may not be considered unless submitted in writing no less

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than

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conference.

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Rules for additional guidance regarding the areas which

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must be addressed in the request.

seven

(7)

calendar

Absent extraordinary circum-

days

prior

to

the

scheduled

Please refer to the undersigned's Chambers

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Questions regarding this case may be directed to the

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Magistrate Judge's Research Attorney at [phone].

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Please consult the undersigned's Chambers Rules, available

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on the Court's website, before contacting chambers with

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any question(s).

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IT IS SO ORDERED.

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DATED: March 19, 2014

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

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