Conde v. Sensa Products

Filing 101

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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