R.N. v. United States of America et al

Filing 13

ORDER Continuing Early Neutral Evaluation Conference, Rule 26 Compliance, and Case Management Conference (ECF No. 10 ). Early Neutral Evaluation set for 2/2/2018 at 1:30 PM before Magistrate Judge Bernard G. Skomal. A Joint Discovery Plan shall be filed on the CM/ECF system as well as lodged with Magistrate Judge Skomal on or before 1/19/2018. Signed by Magistrate Judge Bernard G. Skomal on 11/9/2017. (mxn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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R.N., a minor by and through his guardian
ad litem Elizabeth Neel,

ORDER CONTINUING EARLY
NEUTRAL EVALUATION
CONFERENCE, RULE 26
COMPLIANCE, AND CASE
MANAGEMENT CONFERENCE

Plaintiff,

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Case No.: 17-cv-01583-L-BGS

v.

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United States of America; Rosanne
Estropia, an individual; Solodad Dith, an
individual; Debbie Tenley, an individual;
Catherine Prestonise, an individual; Zeny,
an individual; Sarah, an individual; Does 1
through 25 inclusive,

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Defendants.

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[ECF No. 10]

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Before the Court is a Joint Motion to Continue Hearing (ECF No. 10) submitted on

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November 8, 2017. Previously, the Court set an Early Neutral Evaluation Conference for

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December 8, 2017. (ECF No. 6.) Due to Plaintiff’s counsel’s preplanned vacation from

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December 4, 2017 to December 13, 2017, the parties request a continuance of the Early

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Neutral Evaluation Conference until February 2, 2018 or on a date as soon thereafter as

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may be scheduled. (ECF No. 10 at 1-2.) Accordingly, good cause appearing, the parties’

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Joint Motion to Continue Hearing (ECF No. 10) is GRANTED.

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IT IS HEREBY ORDERED that an Early Neutral Evaluation of your case will be

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held on February 2, 2018, at 1:30 PM before United States Magistrate Judge Bernard G.

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Skomal, United States District Court, 333 W. Broadway, Suite 1280, San Diego,

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California.

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The following are mandatory guidelines for the parties preparing for the
Early Neutral Evaluation Conference.

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1.

Purpose of Conference: The purpose of the Early Neutral Evaluation

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Conference (“ENE”) is to hold a serious discussion of every aspect of the lawsuit in an

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effort to achieve an early resolution of the case. All conference discussions will be off

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the record, privileged and confidential. Counsel for any non-English speaking party is

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responsible for arranging for the appearance of an interpreter at the conference.

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2.

Personal Appearance of Parties Is Required: All parties, adjusters for

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insured defendants, and client representatives must be present and have full and complete

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authority to enter into a binding settlement at the ENE.1 The purpose of this requirement

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is to have representatives present who can settle the case during the course of the

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conference without consulting a superior. Counsel for a government entity may be

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excused from this requirement so long as the government attorney who attends the ENE

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conference (1) has primary responsibility for handling the case; and (2) may negotiate

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settlement offers which the attorney is willing to recommend to the government official

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having ultimate settlement authority. Other parties seeking permission to be excused

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from attending the ENE in person must follow the procedures outlined in Judge Skomal’s

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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, 485-486 (D. Ariz. 2003). The person must be able to bind the
party without the need to call others not present at the conference for authority or approval. 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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17-cv-01583-L-BGS

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Chambers’ Rules. (See Judge Skomal’s Chambers’ Rules at p. 3, section C.) Failure of

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any of the above parties to appear at the ENE conference without the Court’s permission

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will be grounds for sanctions. The principal attorneys responsible for the litigation must

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also be present in person and prepared to discuss all of the legal and factual issues in the

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case.

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3.

Confidential ENE Statements Required: No later than January 19, 2018,

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the parties must submit confidential statements of seven pages or less directly to Judge

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Skomal. Please also attach relevant exhibits. The statement must address the legal and

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factual issues in the case and should focus on issues most pertinent to settling the matter.

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The statement should not repeat facts or law contained in the Complaint or Answer.

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Statements do not need to be filed or served on opposing counsel. The statement must

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also include any prior settlement offer or demand, as well as the offer or demand the

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party will make at the ENE. The Court will keep this information confidential unless the

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party authorizes the Court to share the information with opposing counsel. ENE

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statements must be emailed to [e-mail].

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4.

New Parties Must Be Notified by Plaintiff’s Counsel: Plaintiff’s counsel

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shall give notice of the ENE to parties responding to the complaint after the date of this

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notice.

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5.

Case Management Conference: Any objections made to initial disclosure

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pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)-(D) are overruled, and the

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parties are ordered to proceed with the initial disclosure process. Any further objections

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to initial disclosure will be resolved as required by Rule 26 and Judge Skomal's

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Chambers’ Rules regarding discovery disputes. Accordingly:

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a.

The Rule 26(f) conference shall be completed on or before January 5,

b.

The date of initial disclosure pursuant to Rule 26(a)(1)(A-D) shall

2018;

occur before January 12, 2018;

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c.

A Joint Discovery Plan shall be filed on the CM/ECF system as well

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as lodged with Magistrate Judge Skomal by delivering the plan directly to chambers or by

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emailing it to [e-mail], on or before January 19, 2018. The plan

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must be one document and must explicitly cover the parties’ views and proposals for each

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item identified in Federal Rule of Civil Procedure 26(f)(3). In addition, Judge Skomal

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requires the discovery plan to identify whether the parties will consent to jurisdiction of a

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Magistrate Judge. Agreements made in the Discovery Plan will be treated as binding

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stipulations that are effectively incorporated into the Court’s Case Management Order.

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In cases involving significant document production or any electronic discovery, the

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parties must also include the process and procedure for “claw back” or “quick peek”

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agreements as contemplated by Federal Rule of Evidence 502(d). The parties should also

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address whether an order providing for protection under Rule 502(e) is needed.

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Finally, the parties must thoughtfully meet and confer about electronic discovery
and include answers to the following questions in the Discovery Plan:
i.

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Are there any preservation issues? If so, what are they and how are
the parties addressing the issues;

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What form of production have the parties agreed to? Are there any

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disputes with respect to the parties’ preferred form of production?

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What is the parties’ positions respecting Metadata;

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iii.

Are there any proportionality issues? Specifically address Rule

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26(b)(2)(B) relating to inaccessible electronically stored information

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(“ESI”);

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iv.

What have the parties decided regarding the methodologies for

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identifying ESI for production? For instance, will the parties conduct

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key word searching, use predictive coding, or other advanced culling

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techniques.

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In the event the case does not settle at the ENE, a Case Management Conference,

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pursuant to Federal Rule of Civil Procedure 16(b) will be held at the conclusion of the

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settlement conference.

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6.

Requests to Continue an ENE Conference: Requests to continue ENEs

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are rarely granted. The Court will, however, consider formal motions to continue an

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ENE when extraordinary circumstances exist and the other party has no objection. If

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another party objects to the continuance, counsel for both parties must call chambers and

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discuss the matter with the research attorney/law clerk assigned to the case before any

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motion may be filed. Any request for a continuance must be made as soon as counsel

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is aware of the circumstances that warrant rescheduling the conference.
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Settlement Prior to ENE Conference: The Court encourages the parties

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to work on settling the matter in advance of the ENE Conference. In the event that the

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parties resolve the matter prior to the day of the conference, the following procedures

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must be followed before the Court will vacate the ENE and excuse the parties from

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appearing:

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A.

The parties may file a Joint Motion to Dismiss and submit a proposed

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order to the assigned district judge. If a Joint Motion to Dismiss is filed, the Court will

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immediately vacate the ENE;

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B.

If the parties settle more than 24 hours before the conference but are

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not able to file a Joint Motion to Dismiss, they must file a Joint Notice of Settlement

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containing the electronic signatures of counsel for all settling parties and must also

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identify a date by which the Joint Motion to Dismiss will be filed;

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C.

If the parties settle less than 24 hours before the conference, counsel

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for the settling parties must JOINTLY call chambers and inform the Court of the

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settlement and receive Court permission to not appear at the ENE.

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Questions regarding this case or the mandatory guidelines set forth herein may be
directed to Judge Skomal’s research attorney at [phone]. Please consult Judge

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Skomal’s rules, available on the Court’s website, before contacting chambers with your

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questions.

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A Notice of Right to Consent to Trial Before a United States Magistrate Judge is

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attached for your information.

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Dated: November 9, 2017

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NOTICE OF RIGHT TO CONSENT TO TRIAL

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BEFORE A UNITED STATES MAGISTRATE JUDGE

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In accordance with the provisions of 28 U.S.C. § 636(c), you are notified that a

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U.S. Magistrate Judge of this district may, upon the consent of all parties, on form 1A

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available in the Clerk’s office, conduct any or all proceedings, including a jury or non-

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jury trial, and order the entry of a final judgment. Counsel for the plaintiff is responsible

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to obtain the consent of all parties, if they want to consent.

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Be aware that your decision to consent or not to consent is entirely voluntary.

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Only if all parties consent will the Judge or Magistrate Judge to whom the case has been

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assigned be informed of your decision.

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Judgments of the U.S. Magistrate Judges are appealable to the U.S. Court of
Appeals in accordance with this statute and the Federal Rules of Appellate Procedure.

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