Bethel v. James Hardie Building Products, Inc.

Filing 9

PRETRIAL ORDER NO. 4: Amending Pretrial Order No. 2 to Grant Additional Powers to Special Master Jonathan Lebedoff. (Written Opinion) Signed by Chief Judge Michael J. Davis on 10/3/12. (KMW)

CASE 0:12-cv-00727-MJD Document 19 Filed 10/03/12 Page 1 of 4

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

IN RE: HARDIEPLANK FIBER CEMENT
SIDING LITIGATION

Case No. 12-md-2359
MDL No. 2359

THIS DOCUMENT RELATES TO
ALL ACTIONS

PRETRIAL ORDER NO. 4

Based upon the files, records, and proceedings herein, IT IS HEREBY
ORDERED:
Pretrial Order No. 2 is amended to grant the following additional powers
to Special Master Jonathan Lebedoff:
Retired Chief United States Magistrate Judge Jonathan Lebedoff is hereby
appointed under Rule 53 of the Federal Rules of Civil Procedure as Special
Master for settlement purposes in the HardiePlank Fiber Cement Siding
Litigation, MDL No. 2359. The parties had notice and the opportunity to be
heard and have agreed to this appointment. The affidavit required by Federal
Rule of Civil Procedure 53(b)(3) is attached to Pretrial Order No. 2. The Court
has “consider[ed] the fairness of imposing the likely expenses on the parties and
[has taken steps to] protect against unreasonable expense or delay.” Rule
1

CASE 0:12-cv-00727-MJD Document 19 Filed 10/03/12 Page 2 of 4

53(a)(3). Retired Chief United States Magistrate Judge Lebedoff is highly
experienced in conducting settlement mediations in complex cases in this
District. His expertise and availability will contribute to an efficient and fair
resolution of this matter.
I.

Powers
The Special Master shall have the rights, powers, and duties provided in

Rule 53 and may adopt such procedures as are not inconsistent with the Rule or
with this or other orders of the Court. These powers include the power to
address all non-dispositive pretrial motions; to direct, manage, and facilitate
settlement negotiations among the parties; to assist in settlement negotiations in
any way he believes is appropriate to attempt to resolve this case either globally
or on some individual basis; to issue any orders to aid in his supervision of
settlement negotiations as he may deem necessary; to mediate settlement of the
cases in this MDL; and to order formal mediation, if he believes it is appropriate,
and serve as the official mediator. The Special Master is directed to proceed with
all reasonable diligence.
II.

Ex Parte Communications

2

CASE 0:12-cv-00727-MJD Document 19 Filed 10/03/12 Page 3 of 4

In addition to the standards set forth in Pretrial Order No. 2, the Court
provides that the Special Master may communicate ex parte with the Court at the
Special Master’s discretion, without providing notice to the parties, on the status
of the mediation process, but those communications should be limited to matters
general to the mediation process and not to specifics or to the merits of the
mediation or to the respective parties’ positions or statements made during the
course of the proceedings. With the consent of lead counsel, the Special Master
may communicate ex parte with any counsel on the merits of the disputes or
regarding settlement.
III.

Records
The Special Master’s duties regarding records are fully set forth in Pretrial

Order No. 2.
IV.

Review of the Special Master’s Orders
The method and standard of review of the Special Master’s Orders is fully

set forth in Pretrial Order No. 2.
V.

Compensation
The Special Master’s compensation is fully set forth in Pretrial Order No. 2.

VI.

Cooperation

3

CASE 0:12-cv-00727-MJD Document 19 Filed 10/03/12 Page 4 of 4

The Special Master shall have the full cooperation of the parties and their
counsel. As an agent and officer of the Court, the Special Master is entitled to
absolute quasi-judicial immunity. Failure to comply with any part of this Order
shall subject the parties to appropriate sanctions to include assessment of costs
against the delinquent party, dismissal, or other relief the Court may deem
appropriate.

Dated: October 3, 2012

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

4