Holmes v. Estock et al

Filing 146

ORDER Setting Mandatory Settlement Conference. The videoconference Mandatory Settlement Conference is set for 3/3/2021 at 9:30 AM before Magistrate Judge Barbara Lynn Major. Signed by Magistrate Judge Barbara Lynn Major on 2/24/2021. (tcf)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 10 v. DR. ESTOCK, et al., 11 12 ORDER SETTING MANDATORY SETTLEMENT CONFERENCE Plaintiff, 8 9 Case No.: 16cv2458-MMA(BLM) CHARLES HOLMES, Defendants. On February 16, 2021, Judge Michael M. Anello issued an Order Denying Defendants’ 13 Motion for Summary Judgment. ECF No. 145. 14 to “jointly contact the chambers of the assigned magistrate judge, within ten ( 10) business days 15 of the date this Order is filed, for the purpose of scheduling a settlement conference at the 16 convenience of the magistrate judge.” Id. at 53. On February 24, 2021, after consulting with 17 Plaintiff’s counsel, defense counsel, Ms. Lisa Freund, contacted Magistrate Judge Barbara L. 18 Major’s Chambers regarding counsels’ availability for a settlement conference. In light of Judge 19 Anello’s order and Ms. Freund’s representations, the Court issues the following orders: 20 21 22 1. In the order, Judge Anello directed the parties The Court will hold a videoconference Mandatory Settlement Conference (“MSC”) on March 3, 2021 at 9:30 a.m. 2. The Court will use its official Zoom video conferencing account to hold the MSC. 23 IF YOU ARE UNFAMILIAR WITH ZOOM: 24 download on the Zoom website (https://zoom.us/meetings) or on mobile devices through the Zoom is available on computers through a 25 26 27 28 1 16cv2458-MMA(BLM) 1 installation of a free app.1 Joining a Zoom conference does not require creating a Zoom account, 2 but it does require downloading the .exe file (if using a computer) or the app (if using a mobile 3 device). 4 themselves with Zoom in advance of the MSC.2 There is a cost-free option for creating a Zoom 5 account. 6 3. Participants are encouraged to create an account, install Zoom and familiarize Prior to the start of the MSC, the Court will e-mail each MSC participant an 7 invitation to join a Zoom video conference. Again, if possible, participants are encouraged to 8 use laptops or desktop computers for the video conference, as mobile devices often offer inferior 9 performance. Participants shall join the video conference by following the ZoomGov Meeting 10 hyperlink in the invitation. Participants who do not have Zoom already installed on their 11 device will be prompted to download and install Zoom before proceeding when they 12 click on the ZoomGov Meeting hyperlink. Zoom may then prompt participants to enter the 13 password included in the invitation. All participants will be placed in a waiting room until the 14 MSC begins. 4. 15 Plaintiff’s counsel is responsible for coordinating the appearance of Plaintiff at the 16 MSC. Plaintiff may participate in the MSC telephonically by calling the number provided in the 17 Zoom invitation. Plaintiff’s counsel is responsible for providing Plaintiff and/or his facility with 18 the necessary Zoom information. 19 5. Each participant should plan to join the Zoom video conference at least five 20 minutes before the start of the MSC to ensure that the MSC begins promptly at 9:30 A.M. The 21 Zoom e-mail invitation may indicate an earlier start time, but the MSC will begin at   22 23 24 25 26 27 28 1 Participants should use a device with a camera to fully participate in the video conference. If possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices may offer inferior performance. 2 For help getting started with us/categories/200101697-Getting-Started Zoom, 2 visit: https://support.zoom.us/hc/en- 16cv2458-MMA(BLM) 1 the Court-scheduled time. 2 6. Zoom’s functionalities will allow the Court to conduct the MSC as it ordinarily would 3 conduct an in-person MSC. That is, the Court will begin the MSC with all participants joined 4 together in a main session. After an initial discussion in the main session, the Court will divide 5 participants into separate, confidential sessions, which Zoom calls Breakout Rooms.3 6 Breakout Room, the Court will be able to communicate with participants from a single party in 7 confidence. Breakout Rooms will also allow parties and counsel to communicate confidentially 8 without the Court. 9 10 7. In a No later than February 26, 2021, counsel for each party shall send an e-mail to the Court at efile_Major@casd.uscourts.gov containing the following: a. 11 The name and title of each participant, including all parties and party 12 representatives with full settlement authority, claims adjusters for insured defendants, and the 13 primary attorney(s) responsible for the litigation; 14 b. An e-mail address for each participant to receive the Zoom video conference 15 invitation; and 16 c. A telephone number where each participant may be reached so that if 17 technical difficulties arise, the Court will be in a position to proceed telephonically instead of by 18 video conference. (If counsel prefers to have all participants of their party on a single conference 19 call, counsel may provide a conference number and appropriate call-in information, including an 20 access code, where all counsel and parties or party representatives for that side may be reached 21 as an alternative to providing individual telephone numbers for each participant.) 22 23 8. 2021, 24 25 Confidential Settlement Statements Required: the parties shall submit directly to Magistrate No later than March 1, Judge Major's chambers   26 For more information on what to expect when participating in a Zoom Breakout Room, visit: https://support.zoom.us/hc/en-us/articles/115005769646 27 3 28 3 16cv2458-MMA(BLM) 1 (efile_major@casd.uscourts.gov) confidential settlement statements no more than ten (10) 2 pages in length. These confidential statements shall not be filed or served on opposing 3 counsel. Each party's confidential statement must set forth the party’s statement of the case, 4 identify controlling legal issues, concisely set out issues of liability and damages, and shall set 5 forth the party’s settlement position, including any previous settlement negotiations, mediation 6 sessions, or mediation efforts, the last offer or demand made by that party, and a separate 7 statement of the offer or demand the party is prepared to make at the settlement conference. 8 If a specific demand or offer for settlement cannot be made at the time the brief is submitted, 9 then the reasons therefore must be stated along with a statement as to when the party will be 10 in a position to state a demand or make an offer. 11 12 General statements that a party will "negotiate in good faith" is not a specific demand or offer contemplated by this Order. It is assumed that all parties will negotiate in good faith. 13 9. Full Settlement Authority Required: In addition to counsel who will try the 14 case, a party or party representative with full settlement authority4 must be present for the 15 conference. In the case of a corporate entity, an authorized representative of the corporation 16 who is not retained outside counsel must be present and must have discretionary authority 17 to commit the company to pay an amount up to the amount of Plaintiff's prayer (excluding 18 punitive damages prayers). The purpose of this requirement is to have representatives 19 present who can settle the case during the course of the conference without consulting 20   21 22 23 24 25 26 27 28 4 "Full settlement authority" means that the individuals at the settlement conference must be authorized to explore settlement options fully and to agree at that time to any settlement terms acceptable to the parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have "unfettered discretion and authority" to change the settlement position of a party. Pitman v. Brinker Int'l, 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 contemplates that the person's view of the case may be altered during the face-toface conference. Id. at 486. A limited or a sum certain of authority is not adequate. See Nick v. Morgan's Foods, Inc., 270 F.3d 590, 595-97 (8th Cir. 2001). 4 16cv2458-MMA(BLM) 1 a superior. Counsel for a government entity may be excused from this requirement so long as 2 the government attorney who attends the Mandatory Settlement Conference (1) has primary 3 responsibility for handling the case, and (2) may negotiate settlement offers which the attorney 4 is willing to recommend to the government official having ultimate settlement authority. 5 10. Any request to continue the Mandatory Settlement Conference or request for relief 6 from any of the provisions or requirements of this Order must be sought by a written 7 ex parte application. The application must (1) be supported by a declaration of counsel 8 setting forth the reasons and justifications for the relief requested, (2) confirm compliance with 9 Civil Local Rule 83.3(h), and (3) report the position of opposing counsel or any 10 unrepresented parties subject to the Order. Absent good cause, requests for continuances 11 will not be considered unless submitted in writing no fewer than (7) days prior to 12 the scheduled conference. 13 If the case is settled in its entirety before the scheduled date of the conference, 14 counsel and any unrepresented parties must still appear in person, unless a written 15 joint notice confirming the complete settlement of the case is filed no fewer than 16 twenty-four (24) hours before the scheduled conference. 17 11. All participants shall display the same level of professionalism during the MSC and 18 be prepared to devote their full attention to the MSC as if they were attending in person. 19 Because Zoom may quickly deplete the battery of a participant’s device, each participant should 20 ensure that their device is plugged in or that a charging cable is readily available during the 21 video conference. 22 23 IT IS SO ORDERED. Dated: 2/24/2021 24 25 26 27 28 5 16cv2458-MMA(BLM)

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