VESTAL v. HEART OF CARDON, LLC

Filing 69

ORDER - This matter comes before the Court on Defendant's Unopposed Motion for Leave of Provision Requiring Attendance of Chief Executive Officer at Settlement Conference, filed on August 7, 2018. [See Dkt. 68 .] The motion seeks leave from the provision requiring the attendance of Dr. Stephen Moore, chief executive officer of Heart of Cardon, LLC d/b/a Lyons Health and Living Center ("CarDon"), at the upcoming settlement conference on September 24, 2018. Any scheduling bu rdens were not communicated to the Court in the ample time given to the Defendant pursuant to the scheduling order, nor were exigent circumstances raised in the Defendant's motion to outweigh the "benefits to be gained, not only by the l itigants but also by the court" by the presence of Defendant's chief executive officer at the settlement conference. Id.; [Dkt. 67 .] Defendant's Unopposed Motion for Leave of Provision Requiring Attendance of Chief Executive Officer at Settlement Conference is DENIED. (See Order.) Signed by Magistrate Judge Mark J. Dinsmore on 8/9/2018. (DMW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
NIKKI J. VESTAL,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
HEART OF CARDON, LLC,
Defendant.

No. 2:17-cv-00155-JMS-MJD

ORDER
This matter comes before the Court on Defendant’s Unopposed Motion for Leave of
Provision Requiring Attendance of Chief Executive Officer at Settlement Conference, filed on
August 7, 2018. [See Dkt. 68.] The motion seeks leave from the provision requiring the
attendance of Dr. Stephen Moore, chief executive officer of Heart of Cardon, LLC d/b/a Lyons
Health and Living Center (“CarDon”), at the upcoming settlement conference on September 24,
2018. The motion seeks the Court to permit Michael A. Delph, CarDon’s General Counsel, to
attend the settlement conference. [Dkt. 68 at 1-2.]
In the motion, Defendant suggests that Dr. Moore has a scheduling conflict due to
obligations to preside over executive-level financial review meetings scheduled in the afternoon on
the date of the settlement conference. [Dkt. 68 at 2.] The Court notes that the order originally
scheduling the settlement conference provided in relevant part as follows:
A request to vacate or continue the settlement conference must be made by motion
filed with the court on or before June 27, 2018, except in exigent circumstances.
These motions will be granted only for good cause.
1

[Dkt. 67 at 4 (emphasis in original).] The purpose of that deadline was to ensure that notice of the
settlement conference was provided to all required participants (which included Dr. Moore) so the
Court might quickly address any scheduling conflicts that may have existed. Defendant did not
raise Dr. Moore’s conflict within the allotted window provided in the scheduling order; rather, the
issue was not raised until nearly a month-and-a-half later. [Dkt. 67 and Dkt. 68.]
One of the primary points of scheduling the settlement conference so far in advance is to
ensure the coordination of the schedules of all necessary participants so as to avoid any last minute
scheduling conflicts. The Court must establish deadlines and counsel and the parties must meet
those deadlines for the Court to have any ability to function. As noted by Judge Evans in Spears v.
City of Indianapolis,
We live in a world of deadlines. If we are late for the start of the game or the movie,
or late for the departure of the plane or the train, things go forward without us. The
practice of law is no exception. A good judge sets deadlines, and the judge has a right
to assume that deadlines will be honored. The flow of cases through a busy district
court is aided, not hindered, by adherence to deadlines.
74 F.3d 153, 157 (7th Cir. 1996); see also United States v. Golden Elevator, Inc., 27 F.3d 301, 302
(7th Cir. 1995) (Easterbrook, J.) (“Ignoring deadlines is the surest way to lose a case. Time limits
coordinate and expedite a complex process; they pervade the legal system, starting with the statute
of limitations. Extended disregard of time limits (even the non-jurisdictional kind) is ruinous.”);
Nw. Nat’l Insurance Co. v. Baltes, 15 F.3d 660, 663 (7th Cir. 1994) (“Lawyers and litigants who
decide that they will play by rules of their own invention will find that the game cannot be won.”).
Finwall v. City of Chi., 239 F.R.D. 494, 501 (N.D. Ill. 2006) (citing Reales v. Consol. Rail Corp.,
84 F.3d 993, 996 (7th Cir. 1996)) (“Under the Federal Rules of Civil Procedure, it is the court’s
prerogative-indeed, its duty-to manage its caseload and enforce deadlines. It is not the right of a
2

party who chooses not to comply with those deadlines to be able to restructure them at will.”).
Counsel were obligated to confirm the settlement conference date with their clients and
required client representatives and immediately notify the Court of any conflict, so the settlement
conference might be rescheduled while other dates were available. Having failed to do so,
Defendant is obligated to demonstrate exigent circumstances to support leave of the required
attendance of Dr. Moore, which has not been done here. The presently scheduled executive-level
financial review meetings giving rise to Dr. Moore’s conflict fail to demonstrate good cause, much
less the exigent circumstances that are required to be shown at this late date.
Defendant’s motion seeks permission for Mr. Delph to attend the settlement conference, in
lieu of Dr. Moore. [Dkt. 68 at 1-2.] Mr. Delph currently acts as General Counsel for CarDon and
as a member of its Senior Executive Team. [Dkt. 68 at 1-2.] While the Court does not prohibit Mr.
Delph from attending the settlement conference, it does not absolve the requirement of Dr. Moore’s
attendance as the chief executive officer. The Court reiterates its prior order as well as its outlined
purpose:
Defendant Heart of Cardon, LLC is ordered to appear by its chief executive
officer, along with Defendant’s counsel of record. Unless excused by order of the
court, clients or client representatives with complete authority to negotiate and
communicate a settlement shall attend the settlement conference along with their
counsel . . . . The purpose of this requirement is to have in attendance a representative
who has the authority to exercise discretion to settle the case during the settlement
conference without consulting someone else who is not present.
[Dkt. 67 at 1-2 (emphasis in original).] In this case, Dr. Moore, in his role as chief executive
officer, has such required authority.
Federal district courts have the “inherent authority to manage and control the litigation
before them.” G. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 650 (7th Cir. 1989)
3

(Defendant sending only its counsel and another attorney speaking for the corporation violated the
court’s order by failure to send requested corporate representative to pretrial settlement conference);
see also Fed. R. Civ. P. 16. The Federal Rules of Civil Procedure “do not completely describe and
limit the power of the federal courts” nor are “intended to be the exclusive authority for actions to
be taken by district courts.” Heileman, 871 F.2d at 651; HMG Prop. Inv’rs, Inc. v. Parque Indus.
Rio Canas, Inc., 847 F.2d 908, 915 (1st Cir. 1988); Link v. Wabash R.R., 370 U.S. 626 (1962); Fed.
R. Civ. P. 83 (“A judge may regulate practice in any manner consistent with federal law . . ., and the
district’s local rules.”).
Most important from the Court’s perspective is that this is not the first settlement conference
in this case. The Court conducted a settlement conference on October 20, 2017 that did not result in
a resolution of the case.1 [Dkt. 30.] Instead the parties elected to proceed to summary judgment.
That motion has now been resolved and Plaintiff’s claims under the Americans with Disabilities
Act will proceed to trial if this matter is not resolved by settlement. This matter had already
consumed a significant amount of judicial resources and will incur significantly more, at significant
expense to the parties, if this matter is not resolved prior to trial. Given the procedural status of the
case and the positions taken by Defendant at the previous settlement conference, the Court believes
that Dr. Moore’s presence at the September 24, 2018 settlement conference is essential to any
possible resolution of this matter.
The attendance requirement of Dr. Moore is not “so onerous, so clearly unproductive, or so
expensive in relation to the size, value, and complexity of the case that it might be an abuse of
discretion.” Heileman, 871 F.2d at 654. Any scheduling burdens were not communicated to the

1

Defendant was represented at the first settlement conference by human resources representative Karen Murphey
Griffith and counsel David Swider.

4

Court in the ample time given to the Defendant pursuant to the scheduling order, nor were exigent
circumstances raised in the Defendant’s motion to outweigh the “benefits to be gained, not only by
the litigants but also by the court” by the presence of Defendant’s chief executive officer at the
settlement conference. Id.; [Dkt. 67.]
Defendant’s Unopposed Motion for Leave of Provision Requiring Attendance of Chief
Executive Officer at Settlement Conference is DENIED.
SO ORDERED.

Dated: 9 AUG 2018

5

Distribution:
Robert F. Hunt
HUNT HASSLER LORENZ & KONDRAS LLP
[e-mail]
Robert Peter Kondras, Jr.
HUNT HASSLER KONDRAS & MILLER LLP
[e-mail]
Tyler John Moorhead
BOSE MCKINNEY & EVANS LLP
[e-mail]
David L. Swider
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Mark Wohlford
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Philip R. Zimmerly
BOSE MCKINNEY & EVANS, LLP (Indianapolis)
[e-mail]

6