Schluckebier v. Assisted Living Concepts

Filing 62

ORDER - (1) The plaintiff's motion, 46 , and the defendant's objection thereto, 51 , are each granted in part;(2) On or before January 14, 2013, the defendant shall pay $100 to the plaintiff for losses she incurred due to the unavailability of defendant's representative to attend the scheduled settlement conference.Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
VICKI L. SCHLUCKEBIER,
Plaintiff,

4:11CV3111

vs.
MEMORANDUM AND ORDER
ASSISTED LIVING CONCEPTS, Inc.;
Defendant.
The plaintiff has filed a motion to recover her costs incurred due to the defendant's
failure to provide timely notice of its inability to participate in a settlement conference.
(Filing No. 46). As stated in the plaintiff's motion, upon the parties request, a settlement
conference was scheduled to be held before me on November 5, 2012 at 1:00 p.m.
(Filing No. 36). The settlement conference order stated that to avoid unnecessarily
incurring the travel and other expenses resulting from a cancellation or postponement of
the settlement conference, any request to cancel or change the conference date needed to
be made before October 29, 2012.

The settlement conference was re-scheduled to

November 9, 2012 to accommodate the defendant. It was then rescheduled to November
27, 2012 at 5:30 p.m., but again had to be rescheduled due to a scheduling conflict for the
defendant. Both scheduled dates were approved by the parties before they were set.

In preparation for each of the settlement conferences, the plaintiff, who now
operates a day care, provided notice to her customers that she was unable to provide day
care on the settlement conference dates. Her husband, an insurance agent, cancelled all
appointments for the two dates. The plaintiff requests a total of $288.00 for the loss of
day care revenue, and a one-day loss of insurance commissions and business overhead
resulting from the scheduling changes. (Filing Nos. 47-1 & 47-2).

The defendant acknowledges that its corporate representative, Mary ZakKowalczyk, JD, Vice President and Corporate Secretary for defendant Assisted Living
Concepts, Inc., could not attend the settlement conferences on the previously scheduled
dates. But it states that but for the plaintiff’s objection, the settlement conference could
have been conducted with Ms. Zak-Kowalczyk participating by telephone or
videoconference. The defendant further argues the settlement conference was ultimately
cancelled because it would have been futile, and the plaintiffs have not offered sufficient
evidence in support of their expense claims. (Filing No. 51).
The court’s order setting the settlement conference stated:
1.

A settlement conference will be held before the undersigned magistrate
judge with counsel and representatives of the parties on November 5, 2012,
beginning at 1:00 p.m. in chambers, 566 Federal Building and United States
Courthouse, 100 Centennial Mall North, Lincoln, Nebraska. 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.

(Filing No. 36, ¶ 2)(emphasis added).

The plaintiff objected to allowing the defense

representative’s participation by telephone, and based on that objection, the court did not
excuse personal attendance at the settlement conference.

The court finds that the plaintiff did incur expenses which could have been
avoided had the defendant’s representative attended a conference when scheduled. The
plaintiff’s affidavit explains she lost $100 of day care income by cancelling day care
appointments for one day. The defendant has offered no contrary evidence. The court
finds the plaintiff is entitled to recover her $100 loss.
2

The plaintiff’s husband claims he cancelled appointments and closed his office for
a day, and that he makes insurance commissions averaging $144 per day with a daily
overhead of $40.

The defendant objects to paying these amounts, stating there is

insufficient evidence that the plaintiff’s husband actually lost the amounts claimed by
closing the office for a day. The court agrees.1

Accordingly,

IT IS ORDERED:
1.

The plaintiff’s motion, (Filing No. 46), and the defendant’s objection
thereto, (Filing No. 51), are each granted in part.

2.

On or before January 14, 2013, the defendant shall pay $100 to the plaintiff
for losses she incurred due to the unavailability of defendant’s
representative to attend the scheduled settlement conference.

January 4, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

1

In addition, the plaintiff’s husband is not a party to the litigation, and although
the plaintiff may have wanted him present, there is nothing of record explaining why his
presence at the settlement conference was necessary for final resolution of this case.
3