Fernandez v. JLG Industries, Inc. et al
Filing
194
SETTLEMENT CONFERENCE ORDER. Signed by Magistrate Judge Sheri Polster Chappell on 1/17/2013. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARILYN FERNANDEZ, as Personal
Representative of the Estate of Porfirio
Menendez Cabrears, deceased
Plaintiff,
v.
Case No: 2:09-cv-788-Ftm-29DNF
JLG INDUSTRIES, INC., UNITED
RENTALS, INC. and JLG INDUSTRIES,
INC., A PENNSYLVANIA
CORPORATION,
Defendants.
___________________________________/
SETTLEMENT CONFERENCE ORDER
1. A settlement conference will be held before the Honorable Sheri Polster Chappell with
counsel and representatives of the parties on
FEBRUARY 27, 2013 at 9:00 A.M., at the
United States Courthouse and Federal Building, 2110 First Street, Courtroom 5D, Fort
Myers, Florida 33901.
The parties’ representatives and/or counsel shall be prepared to
participate and negotiate a settlement of this case during the conference in accordance herewith.
2. Unless excused by Order of the Court, clients or client representatives with complete
authority to negotiate and consummate a settlement shall be in attendance at the settlement
conference. This requires the presence of the client or if a corporate, governmental, or other
organizational entity, an authorized representative of the client.
For a defendant, such
representatives must have final settlement authority to commit the organization to pay, in the
representative’s own discretion, a settlement amount up to the plaintiff’s prayer, or up to the
plaintiff’s last demand, whichever is lower. For a plaintiff, such representative must have final
authority, in the representative’s own discretion, to authorize dismissal of the case with
prejudice, or to accept a settlement amount down to the defendant’s last offer.
Any insurance company that is a party or is contractually required to defend or to pay
damages, if any, assessed within its policy limits in this case must have a fully authorized
settlement representative present. Such representative must have final settlement authority to
commit the company to pay, in the representative’s own discretion, an amount within the policy
limits, or up to the plaintiff’s last demand, whichever is lower.
If trial counsel has been fully authorized to commit the client to pay or to accept in
settlement the amount last proposed by the opponent, in counsel’s sole discretion, the client,
client’s representative, or insurance company representative, as applicable, need not attend. The
purpose of this requirement is to have in attendance a representative who has both the authority
to exercise his or her own discretion, and the realistic freedom to exercise such discretion
without negative consequences, in order to settle the case during the settlement conference
without consulting someone else who is not present. In the event counsel for any party is aware
of any circumstance which might cast doubt on a client’s compliance with this paragraph, he or
he/she shall immediately discuss the circumstance with opposing counsel to resolve it well
before the settlement conference, and, if such discussion does not resolve itself, request a
telephone conference with the court and counsel.
3. Counsel appearing for the settlement conference without their client representatives or
insurance company representatives, authorized as described above, will cause the settlement
conference to be canceled or rescheduled. The non-complying party, attorney, or both may be
assessed the costs and expenses incurred by other parties and the court as a result of such
cancellation, as well as any additional sanctions deemed appropriate by the court. Counsel are
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responsible for timely advising any involved non-party insurance company of the requirements
of this order.
4. Settlement conferences are often unproductive unless the parties have exchanged
demands and offers before the conference and make a serious effort to settle the case on their
own. Before arriving at the settlement conference the parties are to discuss settlement with their
respective clients and insurance representatives and shall exchange with opposing counsel
proposals for settlement so the parameters of settlement have been explored well in advance. The
parties are to negotiate and make a good faith effort to settle the case without the involvement of
the Court. Refusal to make offers, counter-offers, or respond to offers is not a good faith effort
towards settlement. Specific proposals and counter proposals shall be made. If as a result of
such discussions, counsel for any party believes that the parties’ respective settlement positions
are so divergent, or for any other reason, that settlement is not reasonably possible in this matter,
he or she shall seek a conference with the undersigned and opposing counsel, by telephone or
otherwise, to determine whether the settlement conference should be cancelled or postponed. If
such a conference is sought, it shall be sought soon enough that fees and expenses otherwise to
be incurred in the convening of a settlement conference can be avoided, normally at least two
working days before the settlement conference.
If settlement is not achieved before the
settlement conference, the parties shall be prepared to engage in further negotiation at the
conference.
5. A settlement conference statement of each party must be submitted directly to
the undersigned no later than the close of business on FEBRUARY 22, 2013 . Each party
shall FAX the undersigned at (239) 461-2139, in confidence, a concise statement of the
evidence the party expects to present setting forth the relevant positions of the parties
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concerning factual issues, issues of law, damages, and the settlement negotiation history of
the case, including a recitation of any specific demands and offers that have been conveyed.
Notwithstanding the parties’ claims with respect to liability and defenses, the Court expects
that each party will provide the Court with an estimated settlement value and the reasons
therefor including the potential scope of liability and the probabilities of success for the
claims and defenses at trial. The settlement conference statements shall not exceed five (5)
pages in length. The settlement statement shall not be filed with the Clerk and will not be
made a part of the case file. The settlement statement shall not be provided to the other
parties in the case. This statement shall be for the exclusive use of the magistrate judge in
preparing for and conducting the settlement conference.
6. At the settlement conference, the parties will be given the opportunity to give a brief
presentation outlining the factual highlights of their case. Then, separate, confidential caucuses
will be held with each party and the party’s representatives.
7. Notwithstanding the provisions of Rule 408, Fed.R. Evid., all statements made by the
parties relating to the substance or merits of the case, whether written or oral, made for the first
time during the settlement conference shall be deemed to be confidential and shall not be
admissible in evidence for any reason in the trial of the case, should the case not settle. This
provision does not preclude admissibility in other contexts, such as pertaining to a motion for
sanctions regarding the settlement conference.
DONE AND ORDERED at Fort Myers, Florida, this 17th
Copies:
All Parties of Record
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day of January, 2013.
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