BROWN v. WESTFIELD INSURANCE CO

Filing 50

ORDER on Deft's 49 Motion to Continue Settlement Conference. The settlement conference scheduled for October 15, 2012 is hereby VACATED. The parties shall negotiate and attempt to agree upon a mediator by no later tha n October 21, 2012 and shall advise the Court of the identity of the mediator if agreed. If the parties are unable to agree upon a mediator by that date, then by no later than October 28, 2012, each side is to file a list of two proposed mediators for selection by the Court (see Order for additional information). Signed by Magistrate Judge Mark J. Dinsmore on 10/3/2012.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TODD BROWN,
Plaintiff,
vs.
WESTFIELD INSURANCE CO,
Defendant.

)
)
)
) NO. 1:11-cv-01716-MJD-TWP
)
)
)
)

ORDER ON DEFENDANT’S MOTION TO CONTINUE SETTLEMENT CONFERENCE

This matter came before the Court on Defendant’s
unopposed motion to continue the settlement conference
scheduled on October 15, 2012, before Magistrate Judge Debra
McVicker Lynch. [Dkt. 49.] The following reason was provided
in support of the motion:
At the time the date [for the settlement
conference] was set, the parties believed that it
may be possible to participate in a settlement
conference in the matter by said date. However,
the parties are still in the process of completing
discovery, including the deposition of the
plaintiff, [sic] will not be able to be completed
in advance of October 15, 2012. In addition,
depending upon the testimony provided at the
plaintiff’s deposition, one or both of the parties
may wish to depose the plaintiff’s wife.
[Dkt. 49 at 1.]
A settlement conference in this matter was first
discussed with the parties during the February 28, 2012
initial pretrial conference and again during a telephone

conference on April 30, 2012, at which point the timing of
such a settlement conference was left open pending the
conduct of discovery.

Thereafter, during a telephone

conference with the Court on June 13, 2012, counsel for the
parties advised the Court they would be ready for a
settlement conference by mid-October.

Accordingly, on June

20, 2012, this matter was referred to Magistrate Judge Debra
McVicker Lynch to conduct a settlement conference and later
that same day Magistrate Judge Lynch scheduled a settlement
conference on October 15, 2012. [Dkt. 39 & 40.]
Thereafter, on August 20, 2012, the Court conducted a
telephone conference with the parties.

During that

conference, counsel for Plaintiff advised the Court that he
had just served responses to Defendant’s written discovery
requests and counsel for Defendant represented that she
intended to serve responses to Plaintiff’s written discovery
requests within a week.

Counsel for Defendant also indicated

plans to depose the Plaintiff and counsel for Plaintiff
indicated an intent to possibly depose Plaintiff’s ex-wife,
both prior to the October 15, 2012 settlement conference.
Again, on September 14, 2012, the Court conducted a
telephone conference with the parties.

During that

conference, counsel for Defendant reported having no issues
with Plaintiff’s discovery responses.

The parties also

advised the Court that Defendant had not responded to

Plaintiff’s written discovery requests within a week of the
August 20, 2012 telephone conference as had been previously
committed, but counsel for Defendant committed to serving
responses to that discovery during the week of September 17,
2012.

Counsel for Defendant again expressed their intent to

depose the Plaintiff in advance of the settlement conference.
Neither party expressed any concern regarding the scheduling
of that deposition, and both parties committed that they were
ready to proceed with the settlement conference as scheduled.
While Defendant’s motion to continue sets forth the
discovery that must be completed prior to a mediation in this
matter, it offers no explanation as to why that discovery was
not timely completed in advance of the scheduled settlement
conference.

Defendant’s intent to depose the Plaintiff was

articulated as early as the February 28, 2012 initial
pretrial conference in this matter.

No explanation has been

provided as to why Defendant has failed to schedule the
Plaintiff’s deposition at any time since August 20, 2012, by
which date Defendant had Plaintiff’s responses to its written
discovery, responses with which Defendant subsequently took
no issue.
Mediation in the form of settlement conferences
conducted by experienced mediators is provided as a service,
free of charge, to litigants by the Magistrate Judges of this
Court.

Such a free service is not available to litigants in

the vast majority of courts across the country.

This Court

commits considerable resources in terms of time and space to
make that service available to litigants.

It is not too much

to expect that litigants will take their committment to
mediate seriously and will actively prepare their case for
mediation when scheduled.
By moving on thirteen days notice1 to continue a
settlement conference that was scheduled more than three
months ago, the parties herein have deprived other litigants,
who may have properly prepared their cases for settlement, of
an opportunity to conduct a settlement conference with the
Court on that date.

That is unacceptable.

Litigants who

fail to properly prepare to participate in a settlement
conference when scheduled forfeit the ability to avail
themselves of that free and valuable service.
It appears to the Court that counsel in this matter, and
most particularly counsel for Defendant, have failed to
actively manage the discovery in this matter to ensure that
the case would be ready for a settlement conference as
scheduled by the Court.

1

Accordingly, the settlement

The Court notes that Magistrate Judge Lynch’s order
scheduling the settlement conference provides that “[a] request
to vacate or continue the settlement conference must be made by
motion filed with the court no later than two weeks before the
conference, except in exigent circumstances.” [Dkt. 40 at 2
(emphasis in original).] No exigent circumstances are apparent in
Defendant’s motion to explain why the Court’s two week deadline
was ignored.

conference scheduled for October 15, 2012 is hereby VACATED.
The parties are hereby Ordered to schedule a private
mediation of this matter to take place no later than April
10, 2013.

The parties shall negotiate and attempt to agree

upon a mediator by no later than October 21, 2012 and shall
advise the Court of the identity of the mediator if agreed.
If the parties are unable to agree upon a mediator by that
date, then by no later than October 28, 2012, each side is to
file a list of two proposed mediators for selection by the
Court.

The mediators proposed shall have cleared any

conflicts and agreed to mediate the case if selected.

By no

later than November 4, 2012, each side may strike one of the
mediators proposed by the opposing party.

The Court shall

then select a mediator from the two names remaining.
Defendant and its counsel shall bear eighty percent of the
expense of the mediation and Plaintiff and his counsel shall
be responsible for the remainder.

Dated: 10/3/2012
Distribution:

Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

All Electronically Registered Counsel