Developers Surety and Indemnity v. Haes Contracting, Inc. et al
Filing
43
ORDER SETTING SETTLEMENT CONFERENCE: As requested in the parties' motion, (filing no. 42 ), which is hereby granted, Settlement Conference set for 6/12/2015 09:30 AM in Chambers before Magistrate Judge Cheryl R. Zwart. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEVELOPERS SURETY AND
INDEMNITY, Company, An Iowa
Corporation;
4:14CV3135
Plaintiff,
SETTLEMENT CONFERENCE
ORDER
vs.
HAES CONTRACTING, INC., A Nebraska
Corporation; SCOTT HAES, an individual;
and MARCIE HAES, an individual;
Defendants.
As requested in the parties’ motion, (filing no. 42), which is hereby granted,
IT IS ORDERED:
1.
A settlement conference will be held before the undersigned magistrate judge
with counsel and representatives of the parties on June 12, 2015, beginning at 9:30 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.
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. 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.
3.
If a party fails to comply with paragraph (2) 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.
4.
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 June 8, 2015.
5.
Counsel shall submit a confidential settlement statement to the undersigned by
email to zwart@ned.uscourts.gov no later than June 10, 2015, 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.
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.
Dated this 8th day of May, 2015
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
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