Borovac v. National Railroad Passenger Corporation et al

Filing 46

MEMORANDUM AND ORDER - A settlement conference will be held before the undersigned magistrate judge's career law clerk (Bren Chambers), with Plaintiff and counsel and representatives of the defendants on 6/6/2016 at 1:00 PM in Court of Appeals Courtroom, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE. Ordered by Magistrate Judge Cheryl R. Zwart. (Copies mailed as directed)(SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAUL BOROVAC,
Plaintiff,

8:15CV196

vs.
MEMORANDUM AND ORDER
NATIONAL RAILROAD PASSENGER
CORPORATION, CONEXIS BENEFITS
ADMINISTRATORS, LP, AND AON
HEWITT, LLC,
Defendants.
IT IS ORDERED:
1.
A settlement conference will be held before the undersigned magistrate
judge’s career law clerk (Bren Chambers), with Plaintiff and counsel and representatives
of the defendants on June 6, 2016, beginning at 1:00 p.m. in the Court of Appeals
courtroom, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha,
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.
Plaintiff and defense counsel shall submit a confidential settlement
statement to the undersigned by email to [e-mail] no later than
May 30, 2016, 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’s law clerk 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 the opposing parties or their counsel, and Judge Zwart shall not be given a
copy.
5.
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.
6.
The Office of the Clerk is instructed to mail a copy of this order to the
plaintiff at his address of record.
Dated this 5th day of May, 2016
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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