Petrou v. Navient Corporation et al

Filing 20

ORDER: (1) Granting Amended Joint Motion to Continue; (2) Resetting Early Neutral Evaluation Conference; and (3) Resetting Rule 26 Compliance and Case Management Conference (ECF Nos. 11 , 17 ). Early Neutral Evaluation reset for 1/10/2018 at 9:00 AM in the Chambers of Magistrate Judge Jill L. Burkhardt. In the event the case does not settle at the ENE Conference, a Case Management Conference is set for 1/10/2018, and will be held at the conclusion of the ENE Conference. Joint Discovery Plan due 12/28/2017. Signed by Magistrate Judge Jill L. Burkhardt on 12/5/2017.(mxn)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 John G. Petrou, Case No.: 17-cv-02033-BTM-JLB Plaintiff, 9 10 v. 11 ORDER: (1) GRANTING AMENDED JOINT MOTION TO CONTINUE; (2) RESETTING EARLY NEUTRAL EVALUATION CONFERENCE; AND (3) RESETTING RULE 26 COMPLIANCE AND CASE MANAGEMENT CONFERENCE Navient Corporation, et al., Defendants. 12 13 14 [ECF Nos. 11, 17] 15 16 17 The parties’ Amended Joint Motion to Continue Early Neutral Evaluation 18 Conference (ECF No. 17) is GRANTED. IT IS HEREBY ORDERED that the December 19 18, 2017 Early Neutral Evaluation (“ENE”) of this case and the dates and deadlines 20 associated therewith (ECF No. 11) are VACATED. The ENE Conference for this case is 21 hereby RESET and will be held on January 10, 2018, at 9:00 AM in the Chambers of 22 Magistrate Judge Jill L. Burkhardt, Edward J. Schwartz U.S. Courthouse, 221 West 23 Broadway, Suite 5140, San Diego, California 92101. In the event the case does not settle 24 at the ENE Conference, a Case Management Conference (“CMC”) pursuant to Fed. R. 25 Civ. P. 16(b) is SET for January 10, 2018, and will be held at the conclusion of the ENE 26 Conference. 27 28 The following are mandatory directions for the parties preparing for the ENE Conference. Absent express permission obtained from this Court, and 1 17-cv-02033-BTM-JLB 1 notwithstanding the pendency of any motion, counsel shall timely comply with the 2 dates and deadlines ordered herein. 3 1. Purpose of Conference: The purpose of the ENE Conference is to permit an 4 informal discussion between the attorneys, parties, and the settlement judge of every aspect 5 of the lawsuit in an effort to achieve an early resolution of the case. All ENE Conference 6 discussions will be informal, off the record, privileged and confidential. Counsel for any 7 non-English speaking parties is responsible for arranging for the appearance of an 8 interpreter at the ENE Conference. 9 2. Personal Appearance of Parties Required: All parties, adjusters for insured 10 defendants, and other representatives of a party having full settlement authority as 11 explained below, and the principal attorneys responsible for the litigation, must be present 12 in person and legally and factually prepared to discuss settlement of the case. Counsel 13 appearing without their clients (whether or not counsel has been given settlement authority) 14 will be cause for immediate imposition of sanctions and may also result in the immediate 15 termination of the ENE Conference. However, in light of the pending motion to dismiss 16 filed by Defendant Navient Solutions, LLC f/k/a Navient Solutions, Inc. (“NSL”) (ECF 17 No. 5), NSL and its counsel are EXCUSED from attending the ENE Conference. If 18 the pending motion to dismiss is denied prior to January 10, 2017 and NSL remains 19 a party to this action, NSL and its counsel shall participate telephonically in the ENE 20 Conference and any CMC held at the conclusion of the ENE Conference. 21 If each of the principal attorneys responsible for the litigation is not listed on the 22 docket as an “ATTORNEY TO BE NOTICED,” then they each shall enter their appearance 23 on the docket as soon as practicable, but in no event later than ten calendar days prior to 24 the ENE Conference. 25 Unless there are extraordinary circumstances, persons required to attend the ENE 26 Conference pursuant to this Order shall not be excused from personal attendance. 27 Requests for excuse from attendance for extraordinary circumstances shall be filed 28 2 17-cv-02033-BTM-JLB 1 as a motion at least ten calendar days prior to the conference. Failure to appear at the 2 ENE Conference will be grounds for sanctions. 3 3. Full Settlement Authority Required: In addition to counsel who will try the 4 case, a party or party representative with full settlement authority1 must be present for the 5 ENE Conference. In the case of an entity, an authorized representative of the entity who 6 is not retained outside counsel must be present and must have discretionary authority to 7 commit the entity to pay an amount up to the amount of the Plaintiff’s prayer (excluding 8 punitive damages prayers). The purpose of this requirement is to have representatives 9 present who can settle the case during the course of the ENE Conference without consulting 10 11 a superior. 4. ENE Statements Required: On or before December 28, 2017, the parties 12 shall lodge statements of five pages or less directly to the chambers of Magistrate Judge 13 Burkhardt outlining the nature of the case, the claims, the defenses, and the parties’ 14 positions regarding settlement of the case. The settlement position must include a specific 15 and current demand or offer addressing all relief or remedies sought. If a specific demand 16 or offer cannot be made at the time the brief is submitted, then the reasons therefor must 17 be stated along with a statement as to when the party will be in a position to state a demand 18 or offer. A general statement that a party will “negotiate in good faith,” “offer a nominal 19 cash sum,” or “be prepared to make an offer at the conference” is not a specific demand or 20 offer. The statement shall also list all attorney and non-attorney conference attendees for 21 22 23 24 25 26 27 28 “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 to face 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). 1 3 17-cv-02033-BTM-JLB 1 that side, including the name(s) and title(s)/position(s) of the party/party representative(s) 2 who will attend and have settlement authority at the conference. 3 ENE statements shall be lodged via email at If 4 exhibits are attached and the total submission amounts to more than 20 pages, a hard copy 5 must also be delivered directly to chambers. Whether these statements are submitted 6 confidentially or whether they are served on opposing counsel is within the parties’ 7 discretion. Statements of more than five pages will not be considered. 8 5. Submission of Magistrate Judge Consent Form: No later than December 9 19, 2017, each party shall provide Plaintiff’s counsel with an executed copy of the attached 10 consent form, titled Notice, Consent, and Reference of a Civil Action to a Magistrate Judge. 11 Pursuant to Civil Local Rule 73.1, if (and only if) all parties have consented to the reference 12 to a magistrate judge, then Plaintiff shall file the consent form(s) in paper format at the 13 Clerk’s Office by December 20, 2017. If the paper format filing reflects consent by all 14 parties, then the form(s) will be forwarded to the assigned district judge for approval. The 15 consent form(s) should not be filed with the court electronically through its Case 16 Management/Electronic Case Filing (CM/ECF) system. No consent form will be made 17 available, nor will its contents be made known to any judicial officer, unless all parties 18 have consented to the reference to a magistrate judge. The parties are free to withhold 19 consent without adverse substantive consequences. Questions related to the consent 20 form(s) should be directed only to the clerk’s office at 619-557-5600. Please do not call 21 chambers’ staff with questions related to the consent form(s). 22 6. New Parties Must Be Notified by Plaintiff’s Counsel: Plaintiff’s counsel 23 shall give notice of the ENE Conference and this Order to parties responding to the 24 complaint after the date of this notice. 25 7. Case Management Under the Amended Federal Rules: The parties are 26 ordered to comply with Fed. R. Civ. P. 26 and proceed with the initial disclosure process 27 as follows: 28 4 17-cv-02033-BTM-JLB 1 2 3 4 a. The Rule 26(f) conference shall be completed on or before December 19, 2017; b. The date of initial disclosure pursuant to Rule 26(a)(1)(A-D) shall occur on or before December 28, 2017; 5 c. A Joint Discovery Plan shall be filed on the CM/ECF system as well as 6 lodged with Magistrate Judge Burkhardt by emailing the Plan to 7, on or before December 28, 2017. The 8 Plan must be one document and must explicitly cover the parties’ views and 9 proposals for each item identified in Fed. R. Civ. P. 26(f)(3). The parties 10 should consult both Judge Burkhardt’s and the assigned District Judge’s Civil 11 Chambers Rules in drafting their Plan. A courtesy paper copy of the Plan 12 shall be delivered to Judge Burkhardt’s Chambers if the Plan with its 13 attachments exceeds 20 pages. In addition to complying with Chambers 14 Rules, the Plan must identify whether and what good cause (specific to this 15 case) exists to modify the Court’s tentative schedule for this case. The Court’s 16 tentative schedule is as follows: 17 18 i. Filing of motions to amend pleadings and/or add parties: February 16, 2018; 19 ii. Completion of fact and expert witness discovery: May 25, 2018; 20 iii. The designation and service of expert witness reports: April 6, 2018; 21 iv. The supplemental designation and service of rebuttal expert witness 22 reports: May 4, 2018; 23 v. The date by which dispositive motions shall be filed: June 12, 2018. 24 Motions in limine are to be filed as directed in the Local Rules, or as 25 otherwise set by the District Judge; 26 27 vi. The date for the Mandatory Settlement Conference: August 31, 2018; and 28 5 17-cv-02033-BTM-JLB 1 vii. The date for a Pretrial Conference before the District Judge assigned to 2 3 the case: October 10, 2018. 8. Requests to Continue or Reschedule an ENE Conference: Local Rule 4 16.1.c requires that an ENE Conference take place within 45 days of the filing of the first 5 answer. Requests to continue ENE Conferences are rarely granted. However, the Court 6 will consider formal, filed ex parte or joint motions to continue an ENE Conference when 7 extraordinary circumstances exist that make a continuance appropriate. In and of itself, 8 having to travel a long distance to appear in person is not “extraordinary.” Absent 9 extraordinary circumstances, requests for continuances will not be considered unless filed 10 11 no less than ten calendar days prior to the scheduled conference. 9. Settlement Prior to ENE Conference: The Court encourages the parties to 12 work on settling the matter in advance of the ENE Conference. In the event that the parties 13 resolve the matter prior to the day of the ENE Conference, the following procedures must 14 be followed before the Court will vacate the ENE Conference and excuse the parties from 15 appearing: 16 a. The parties may file a Joint Motion to Dismiss and separately lodge by email 17 a proposed order to the assigned District Judge.2 If a Joint Motion to Dismiss 18 is filed, the Court will vacate the ENE Conference. 19 encouraged to contact Judge Burkhardt’s Chambers by telephone to notify the 20 Court of their pending Joint Motion; The parties are 21 b. If the parties settle more than 24 hours before the ENE Conference but are not 22 able to file a Joint Motion to Dismiss, they must file a Notice of Settlement 23 containing the electronic signatures of counsel for all settling parties and 24 identifying a date by which the Joint Motion to Dismiss will be filed. The 25 26 27 28 2 See Electronic Case Filing Administrative Policies and Procedures Manual, United States District Court for the Southern District of California § 2(h), for the chambers’ official email address and procedures on emailing proposed orders. 6 17-cv-02033-BTM-JLB 1 parties are encouraged to contact Judge Burkhardt’s Chambers by telephone 2 to notify the Court of their filed Notice of Settlement; 3 c. If the parties settle less than 24 hours before the conference, counsel for the 4 settling parties must JOINTLY call chambers and inform the Court of the 5 settlement and receive Court permission to not appear at the ENE Conference. 6 After having reviewed Judge Burkhardt’s Civil Chambers Rules, appropriate 7 questions regarding this case or the mandatory directions set forth herein may be addressed 8 through a joint call by the parties to Judge Burkhardt’s law clerks at (619) 557-6624. For 9 additional information, please see Judge Burkhardt’s Civil Chambers Rules. 10 Dated: December 5, 2017 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 17-cv-02033-BTM-JLB UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA John G. Petrou, Case No.: 17-cv-02033-BTM-JLB Plaintiff(s), NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE v. Navient Corporation, et al., Defendant(s). Notice of a magistrate judge's availability. A United States magistrate judge of this court is available to conduct all proceedings in this civil action (including a jury or nonjury trial) and to order the entry of a final judgment. The judgment may then be appealed directly to the United States court of appeals like any other judgment of this court. A magistrate judge may exercise this authority only if all parties voluntarily consent. You may consent to have your case referred to a magistrate judge, or you may withhold your consent without adverse substantive consequences. The name of any party withholding consent will not be revealed to any judge who may otherwise be involved with your case. Consent to a magistrate judge's authority. The following parties ☐ Consent / ☐ Do Not Consent* to have a United States magistrate judge conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings. Printed Names Signatures of all parties and counsel for all parties Dates REFERENCE ORDER IT IS ORDERED: This case is referred to United States Magistrate Judge Jill L. Burkhardt to conduct all proceedings and order entry of a final judgment in accordance with 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and CivLR 73.1. Date United States District Judge * Pursuant to Civil Local Rule 73.1, if (and only if) all parties have consented to the reference to a magistrate judge, then Plaintiff shall file the consent form(s) in paper format at the Clerk’s Office.

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