Automated Systems, Inc. et al v. First State Bank Hawarden, Iowa

Filing 42

MEMORANDUM AND ORDER granting 40 Motion to Continue and Request for Mediation. Trial of this case is continued and is set for 11/19/2013 at 9:00 AM in Courtroom 1, Robert V. Denney Federal Building, 100 Centennial Mall North, Lincoln, NE before Ju dge John M. Gerrard. A settlement conference will be held before the undersigned magistrate judge with counsel and representatives of the parties on October 1, 2013, beginning at 9:00 a.m. in chambers, 566 Federal Building and United States Courthouse, 100 Centennial Mall North, Lincoln, Nebraska. Ordered by Magistrate Judge Cheryl R. Zwart. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AUTOMATED SYSTEMS, INC., A
Nebraska Corporation; and INSITE DATA
SYSTEMS, INC., A Nebraska Corporation;

4:12CV3059

Plaintiffs,
MEMORANDUM AND ORDER
vs.
FIRST STATE BANK HAWARDEN,
IOWA, Inc., An Iowa Corporation;
Defendant.

After conferring with counsel, and despite plaintiffs’ objection,
IT IS ORDERED:
1.
The defendant’s motion to continue and request for mediation, (Filing No.
40), is granted.
2.
Trial of this case is continued and is set to commence before the Honorable
John M. Gerrard, United States District Judge, in Courtroom 1, United States
Courthouse, Lincoln, Nebraska, at 9:00 a.m. on November 19, 2013, or as soon
thereafter as the case may be called, for a duration of three (3) trial days.
3.
A settlement conference will be held before the undersigned magistrate
judge with counsel and representatives of the parties on October 1, 2013, beginning at
9:00 a.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.
4.
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.
The defendant’s representative must have the authority to commit the defendant to pay, in
the representative's own discretion, the amount needed to settle the case; the plaintiff’s
representative must have the authority, in the representative's own discretion, to authorize
dismissal of the case with prejudice, or to accept the amount offered and needed to settle

the case. If board approval is required to authorize settlement, the attendance of at least
one sitting member of the board (preferably the chairperson) authorized to settle as
described above is required. 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. Counsel are responsible
for timely advising any involved non-party insurance company of the requirements of this
order. 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 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 physically 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, s/he shall immediately discuss the
circumstance with opposing counsel to resolve it before the settlement conference, and, if
such discussion does not resolve it, request a telephone conference with the court and
counsel.
5.
If a party fails to comply with paragraph (4) of this order, the settlement
conference will be cancelled and costs, attorney fees, and sanctions may be imposed by
the court against the non-complying party, counsel for that party, or both.
6.
Prior to the settlement conference, counsel shall 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. 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 canceled or postponed. To avoid unnecessarily
incurring travel and other expenses if the settlement conference is canceled or postponed,
any request for a conference to discuss cancellation or postponement must be made on or
before September 24, 2013.
5.
Counsel shall submit a confidential settlement statement to the undersigned
by email to [e-mail] no later than September 27, 2013, setting forth the
relevant positions of the parties 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. Since the undersigned magistrate judge will have no
further substantive involvement in this case, this statement should describe candid and
confidential interests or positions that in counsel’s opinion may be preeminent in
negotiating a settlement; copies should NOT be served on opposing counsel or parties.
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6.
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.
July 24, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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