Oakley, Inc. v. Lipopsun International Corporation

Filing 17

ORDER Granting in Part Joint Motion to Continue Early Neutral Evaluation [ECF No. 16 . Signed by Magistrate Judge Bernard G. Skomal on 10/6/2017. (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OAKLEY, INC.,

Case No.: 17CV1838 CAB (BGS)
Plaintiff,

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v.

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ORDER GRANTING IN PART
JOINT MOTION TO CONTINUE
EARLY NEUTRAL EVALUATION

LIPOPSUN INTERNATIONAL CORP.,
Defendant.

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[ECF No. 16]

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The parties have filed a Joint Motion seeking to continue the Early Neutral
Evaluation and Case Management Conference scheduled for October 18, 2017 by six
weeks to allow the parties to gather sales figures, exchange settlement demands and allow
Liposun to tender its defense to its insurance carrier. (ECF No. 16.) The Joint Motion is
GRANTED in part. The ENE and CMC are continued to November 17, 2017 at 1:30
p.m. Other dates are modified as indicated below.
The following are mandatory guidelines for the parties preparing for the
Early Neutral Evaluation Conference.
1.

Purpose of Conference: The purpose of the Early Neutral Evaluation

Conference (“ENE”) is to hold a serious discussion of every aspect of the lawsuit in an
effort to achieve early resolution of the case. All conference discussions will be off the

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record, privileged and confidential. Counsel for any non-English speaking parties 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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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 November 3,

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2017, the parties must submit confidential ENE statements of seven pages or less. Please

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also attach relevant exhibits. The statement must address the legal and factual issues in

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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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the case and should focus on issues most pertinent to settling the matter. The statement

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should not repeat facts or law contained in the Complaint or Answer. Statements do not

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need to be filed or served on opposing counsel. The statement must also include any

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prior settlement offer or demand, as well as the offer or demand the party will make at the

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

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Court to share the information with opposing counsel.

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ENE statements must be emailed to [e-mail].

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4.

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

shall give notice of the ENE to parties responding to the complaint after the date of this
notice.
5.

Case Management Under the Amended Federal Rules and Local Patent

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Rules: The parties can expect to leave the ENE with Rule 26 compliance dates and

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deadlines and a Case Management Order including a Claim Construction briefing

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schedule and hearing date. Parties shall therefore meet and confer pursuant to Fed.

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R. Civ. P. 26(f) no later than 14 days before the ENE regarding the following:

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a.

Any anticipated objections under Federal Rule of Civil Procedure

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26(a)(1)(E) to the initial disclosure provisions of Federal Rule of Civil Procedure

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26(a)(1)(A-D) and the date of initial disclosures;

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b.

Whether the parties will request the preservation and production of

Electronically Stored Information ("ESI") and, if so:

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i.

the nature, location, and scope of discoverable ESI;

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ii.

the agreed form of production;

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iii.

the agreed search methodology;

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iv.

whether any proportionality issues exist and whether the parties have

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identified issues with respect to inaccessible ESI;
c.

Any proposed modification of the deadlines provided for in the Patent Local

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Rules, and the effect of any such modification on the date and time of the Claim

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Construction Hearing, if any;
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d.

The need for and specific limitations on discovery relating to claim

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construction, including depositions of percipient and expert witnesses; and any proposed

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modifications to the limitations on discovery imposed under the Federal Rules of Civil

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Procedure or by local rule;

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e.

The need, if any, to phase damage discovery.

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6.

Joint Discovery Plan: The parties must include their positions with respect

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to the meet-and-confer issues listed above, AND propose actual dates for ALL of the

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following deadlines in a Joint Discovery Plan:

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- deadline for disclosure of asserted claims and preliminary infringement
contentions;
- deadline for preliminary invalidity contentions;
- deadline for exchange of proposed claim constructions and extrinsic
evidence;
- deadline for joint claim construction chart, worksheet and hearing
statement;
- deadline for completion of claim construction discovery;
- proposed briefing schedule for filing of claim construction briefs
- proposed date and time of the Claim Construction Hearing, if any;
- whether the court will hear live testimony at the Claim Construction
Hearing;
- the need for and specific limitations on discovery relating to claim
construction, including depositions of percipient and expert witnesses;
- deadlines for expert witness designation and supplementation;
- deadlines for expert witness report submissions and supplementation
- deadlines for completions of fact and expert discovery;
- deadline for filing pretrial motions; and
- proposed final Pretrial Conference date.

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The Joint Discovery Plan shall be submitted via email to Judge Skomal’s
chambers as well as filed on the CM/ECF system, no later than November 3, 2017
The Court will issue an order following the ENE addressing these issues and setting dates
as appropriate.
7.

Requests to Continue an ENE Conference: Requests to continue ENEs

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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8.

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:
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 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 Skomal's research attorney at [phone].
IT IS SO ORDERED.
Dated: October 6, 2017

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