Martignone v. ADT, LLC et al

Filing 11

ORDER Granting Ex Parte Motion [ECF No. 10 ]; Amended Notice and Order for Early Neutral Evaluation Conference and Case Management Conference. Signed by Magistrate Judge William V. Gallo on 12/27/2017. (jjg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

Case No.: 17-CV-2057-CAB-WVG

ARGENTINA MARTIGNONE,
Plaintiff,

12
13

v.

14

ORDER GRANTING EX PARTE
MOTION [ECF NO. 10]; AMENDED
NOTICE AND ORDER FOR EARLY
NEUTRAL EVALUATION
CONFERENCE AND CASE
MANAGEMENT CONFERENCE

ADT, LLC, et al.,
Defendants.

15
16
17
18
19

On December 21, 2017, Defendant ADT, LLC filed an unopposed ex parte motion

20

requesting the Court continue the Early Neutral Evaluation presently set for December 29,

21

2017. For good cause shown, the motion is GRANTED. Accordingly, the Court enters the

22

following ORDER:

23

IT IS HEREBY ORDERED that an Early Neutral Evaluation (“ENE”) of your case

24

and Case Management Conference (“CMC”) will be held on February 20, 2018, at 9:00

25

A.M., before United States Magistrate Judge William V. Gallo, United States Courthouse,

26

Courtroom 2A, Second Floor, 221 West Broadway, San Diego, California.

27
28
1
17-CV-2057-CAB-WVG

1

Additionally, on February 15, 2018, beginning at 8:15 A.M., the Court will hold

2

an attorneys-only telephonic status conference with each party separately.1 The purpose

3

of this confidential, off-the-record teleconference is for the Court’s benefit in assessing

4

each party’s concerns, challenges, and whether the Court can assist in alleviating these.

5

On or before February 12, 2018, each attorney intending to participate shall lodge, via

6

electronic mail addressed to [e-mail], (1) the name of each attorney

7

who will participate and (2) a telephone number at which each attorney may be reached

8

directly without fail at the time of the conference.

9

I.

10
11

EARLY NEUTRAL EVALUATION CONFERENCE
The following are mandatory guidelines for the parties preparing for the ENE

Conference.

12

1.

13

The purpose of the ENE is to permit an informal discussion between the attorneys,

14

parties and the settlement judge of every aspect of the lawsuit in an effort to achieve an

15

early resolution of the case. All conference discussions will be informal, off the record,

16

privileged and confidential. Counsel for non-English speaking parties is responsible for

17

arranging for the appearance of an interpreter at the conference.

Purpose of Conference

18

2.

19

All parties, adjusters for insured defendants, and other representatives of a party

20

having full and complete authority to enter into a binding settlement, and the principal

21

attorneys responsible for the litigation, must be present in person and legally and factually

22

prepared to discuss settlement of the case. See S.D. Cal. Civ. L. R. 16.1(c).

Personal Appearance of Parties Required

23
24
25
26
27
28

1

The Court will contact the first party and proceed to contact the remaining parties one at
a time. Each call may be short or lengthy. Counsel are required to be available for the
Court’s call beginning at the appointed time and remain available until they are called.
2
17-CV-2057-CAB-WVG

1

3.

2

In addition to counsel who will try the case, a party or party representative with full

3

settlement authority2 must be present for the conference. In the case of a corporate entity,

4

an authorized representative of the corporation who is not retained outside counsel must be

5

present and must have discretionary authority to commit the company to pay an amount up

6

to the amount of the plaintiff’s prayer (excluding punitive damage prayers). The purpose

7

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

8

course of the conference without consulting a superior.

Full Settlement Authority Required

9

Unless there are extraordinary circumstances, persons required to attend the

10

conference pursuant to this Order shall not be excused from personal attendance. Requests

11

for excuse from attendance for extraordinary circumstances shall be made in writing at

12

least one week before the conference. Failure to appear at the ENE conference will be

13

grounds for sanctions.

14

4.

15

No later than 15 days before the scheduled ENE Conference, Plaintiff(s) shall submit

16

to Defendant(s) an amended written settlement proposal. No later than 10 days before the

17

scheduled ENE Conference, Defendant(s) shall submit an amended response to

18

Plaintiff(s)’ settlement proposal. All parties shall be prepared to address in their ENE

19

Statements, and discuss at the ENE conference, the settlement proposal and response.

20

21
22
23
24
25
26
27
28

Settlement Proposal and Response Required

2

“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,
485-86 (D. Ariz. 2003). 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. The person with full settlement authority must be able to negotiate a
settlement without being restricted by any predetermined level of authority. Nick v.
Morgan’s Foods, Inc., 270 F.3d 590 (8th Cir. 2001).
3
17-CV-2057-CAB-WVG

1

5.

2

In accordance with the Court’s Chambers Rules, each party shall exchange its

3

settlement Statement with all opposing parties. Additionally, in accordance with the

4

Court’s Chambers Rules, each party shall submit a confidential or non-confidential

5

Amended Statement to the Court. Both the exchange of Statements between the

6

parties and submissions of Amended Statements to the Court shall occur on or before

7

February 9, 2018. The Statement each party submits directly to the chambers shall be five

8

pages or less and shall outline the nature of the case, the claims, the defenses, and the

9

parties’ positions regarding settlement of, and attempts to settle the case. All Statements

10

ENE Statements Required

must comply with the Court’s Chambers Rules.

11

The parties shall meet and confer in good faith prior to the ENE Conference, and

12

verify that they have done so in their respective ENE Conference statements, outlining the

13

substance of their discussions and negotiations.

14

6.

15

The Court generally allots two hours for ENEs. Counsel should be prepared to be

16

succinct and to the point. Requests for additional time must be made in writing in the

17

party’s ENE statement, accompanied by a short explanation.

Time Allotted

18

7.

19

Plaintiff’s counsel shall give notice of the ENE Conference to all parties responding

20

New Parties Must Be Notified by Plaintiff’s Counsel

to the Complaint after the date of this Notice.

21

8.

22

Civil Local Rule 16.1(c) requires that an ENE take place within 45 days of the filing

23

of the first answer. Requests to continue ENE conferences are rarely granted. Counsel

24

seeking to reschedule an ENE must first confer with opposing counsel. The Court will

25

consider formal, written ex parte requests to continue an ENE conference when

26

extraordinary circumstances exist that make a continuance appropriate. In and of itself,

27

having to travel a long distance to appear at the ENE conference is not an extraordinary

28

circumstance. Absent extraordinary circumstances, requests for continuances of the

Requests to Continue an ENE Conference

4
17-CV-2057-CAB-WVG

1

ENE conference may not be considered unless submitted in writing no less than seven

2

calendar days prior to the scheduled conference.

3
4

Please refer to the undersigned’s Chambers Rules for additional guidance regarding
the areas which must be addressed in the request.

5

The parties shall be prepared to engage in good faith settlement discussions with the

6

Court and opposing parties during the ENE Conference. Failure to engage in good faith

7

settlement discussions may result in the imposition of sanctions.

8

II.

CASE MANAGEMENT CONFERENCE

9

Given the delay in convening the ENE Conference, the parties shall also be prepared

10

for a Case Management Conference on February 20, 2018 at 9:00 a.m. Accordingly, the

11

Court issues the following orders:

12

1. The Rule 26(f) conference shall be completed before January 19, 2018;

13

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

14

February 2, 2018; and

15

3. A joint discovery plan shall be lodged with Magistrate Judge Gallo on or before
February 13, 2018.3

16
17

Questions regarding this case may be directed to the undersigned’s Research

18

Attorney at [phone]. Please consult the undersigned’s Chambers Rules, which are

19

available on the Court’s website, before contacting chambers with any questions.

20
21

IT IS SO ORDERED.
Dated: December 27, 2017

22
23
24
25
26
27
28

3

Counsel shall review the undersigned’s Chambers Rules for guidance on completing the
proposed discovery plan. Counsel are further advised to consult the Chambers Rules of
the District Judge assigned to this case for case timeline preferences, if any.
5
17-CV-2057-CAB-WVG