Conde v. Sensa Products
Filing
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ORDER granting 100 Motion to Excuse Personal Appearance of Susan Stokes at the Early Neutral Evaluation. Signed by Magistrate Judge William V. Gallo on 07/07/2017. (ja1)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JOSE CONDE, et al.,
Case No.: 14-CV-51-JLS-WVG
Plaintiff,
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ORDER GRANTING PLAINTIFF'S
EX PARTE RENEWED REQUEST
FOR EXCUSAL FROM THE EARLY
NEUTRAL EVALUATION
CONFERENCE
v.
SENSA, et al.,
Defendant.
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[ECF No. 100]
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I. INTRODUCTION
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Before the Court is Plaintiff Susan Grace Stokes’ unopposed ex parte Renewed
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Request for Excusal from the Early Neutral Evaluation (“ENE”) Conference scheduled for
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2:00 p.m. on July 10, 2017. (ECF No. 100.) For the reasons stated below, Plaintiff’s request
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is GRANTED.
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II. BACKGROUND
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On June 2, 2015, the Court issued a Notice and Order scheduling an ENE Conference
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for June 29, 2015. (ECF No. 35.) After continuing the ENE Conference to July 16, 2015 at
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the parties’ request, Plaintiff Stokes filed a request to appear telephonically at the July 2015
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ENE Conference. (See ECF No. 47.) Plaintiff’s initial request was denied by the Court
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because the vague “time and expense” reasons offered did not come close to meeting the
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Court’s “extraordinary circumstances” requirement for excusal from in person appearance
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at the ENE Conference. (ECF No. 45 at 5-6, citing Judge Gallo’s Chambers Rules, II.)
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Accordingly, the Court denied the request. (Id. at 6.)
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On July 14, 2015, Plaintiff filed a Renewed Request for Excusal from the July 2015
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ENE Conference. (ECF No. 47.) That Request was accompanied by a sworn declaration
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by Plaintiff indicating she had “nine (9) surgeries” to her back and was “presently
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undergoing treatment.” (ECF No. 47-4.) Plaintiff further stated that “[t]he pain associated
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with this medical condition prevents me from travelling to California.” (Id.) Attached to
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Plaintiff’s declaration was an x-ray and a handwritten statement signed by Plaintiff’s
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physician indicating that Plaintiff is “physically unable to travel by plane, bus, or train.”
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(Id.) This note was signed on July 14, 2015. (Id.) Given the declaration made under penalty
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of perjury, the Court found that Plaintiff met the “extraordinary circumstances” set forth in
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the Court’s rules and excused Plaintiff’s personal appearance from the ENE Conference.
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(See ECF No. 48.) The case has since been litigated extensively, resulting in an Answer to
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the Third Consolidated Complaint being filed on May 24, 2017. (ECF No. 94.)
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On May 30, 2017 the Court issued a Notice and Order scheduling an ENE
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Conference for 2:00 p.m. on July 10, 2017. (ECF No. 95.) On June 26, 2017, Plaintiff filed
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an ex parte Request for Excusal from the current ENE Conference. (ECF No. 97.) This
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request was accompanied by a sworn declaration that also included the exact x-ray and
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handwritten statement signed by her physician that was first presented to the Court two
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years before. (ECF No. 97-1.) Given this outdated information, the Court denied the request
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without prejudice. (ECF No. 98.) Plaintiff filed a Renewed Request for Excusal on July 3,
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2017, similarly requesting to be excused from the July 10, 2017 ENE Conference. (ECF
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No. 100.)
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III. DISCUSSION
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The Court’s Civil Chambers Rules state:
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The Court will not grant requests to excuse a required party from personally
appearing [at an ENE Conference or Settlement Conference], absent
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extraordinary circumstances. Distance or cost of travel alone does not
constitute an “extraordinary circumstance.”… Such requests may [] be made
by submitting the request in writing at least fourteen (14) days before the
scheduled [ENE Conference]. The request must be filed on the docket through
CM/ECF.
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Judge Gallo’s Chambers Rules II(E) (emphasis in original). Additionally, the Notice and
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Order scheduling the ENE Conference advised the parties that “[a]ll parties … must be
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present in person and legally and factually prepared to discuss settlement of the case.”
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(ECF No. 95 at 2, emphasis in original.)
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The Court finds that Plaintiff has met the extraordinary circumstances standard set
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out in the Court’s rules. Plaintiff has filed a declaration and exhibits in support of her
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request. Plaintiff’s declaration indicates she cannot travel due to ongoing treatment for
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numerous back surgeries. (ECF No. 100-1 at 2.) Additionally, Plaintiff’s doctor states that
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Plaintiff is “quite debilitated” and “is prohibited from traveling long distances.” (Id. at 3.)
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Both documents are dated July 3, 2017. Given this updated information, the Court
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concludes Plaintiff has met the extraordinary circumstances standard and she is excused
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from personal appearance at the July 10, 2017 ENE Conference.
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IV. CONCLUSION
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Plaintiff’s Request for Excusal from the ENE Conference is GRANTED. Plaintiff
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Stokes shall be available via telephone at all times from 2:00 p.m. until she is notified of
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the conclusion of the ENE Conference by her counsel.
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The Court further notes that Plaintiff Stokes has yet to make a personal appearance
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in the matter. As the named plaintiff in a purported class action, Stokes is required to
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“adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Her protracted
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absence from this jurisdiction while the litigation unfolds concerns the Court. There is no
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substitute for personal attention and appearance. Telephonic participation may be
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appropriate on a short term or temporary basis, but not as a complete alternative to her
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personal involvement at critical stages, such as settlement conferences. As such, Stokes
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should begin to mentally and physically prepare herself to participate in person at the
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Mandatory Settlement Conference.1
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IT IS SO ORDERED.
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Dated: July 7, 2017
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The Court notes that as of the date of this order, the Mandatory Settlement Conference has not yet been
set.
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