Assurance Company Of America et al v. National Fire & Marine Insurance Company

Filing 53

ORDER that the parties shall have until August 18, 2014, in which to either file a stipulation for dismissal with prejudice, or an appropriate motion to seek resolution from the court. Signed by Magistrate Judge Peggy A. Leen on 8/4/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ASSURANCE COMPANY OF AMERICA,

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Case No. 2:13-cv-00821-JCM-PAL

Plaintiff,

ORDER

v.

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NATIONAL FIRE & MARINE INSURANCE
COMPANY,

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Defendant.

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Before the court is the parties’ Joint Status Report (Dkt. #49). Also before the court is

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Defendant National Fire & Marine Insurance Company’s Motion for Settlement Conference

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(Dkt. #50). The court has considered the status report, the motion, Plaintiff’s Response (Dkt.

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#51) and Defendant’s Reply (Dkt. #52).

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BACKGROUND

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After the joint status report was filed Defendant filed a motion for settlement conference.

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National Fire seeks the court’s involvement to facilitate finalization of the Parties global

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settlement which would result in dismissal of this case and a number of other pending cases.

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National Fire asks that the court exercises inherent power to control the disposition of cases on

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its docket by issuing an order setting a settlement conference to help the Parties finalize their

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contemplated agreement. National Fire argues that if the settlement conference is successful and

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a settlement is finalized it will remove several pending cases from this court’s docket as well as

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anticipated law suits between the Parties.

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Plaintiff responds that the Parties reached a settlement of the five cases identified in the

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Parties’ Joint Status Report (Dkt. #49). Plaintiffs claim that the terms of the settlement are set

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forth in correspondence attached as Exhibit A to the response. Efforts to further memorialize the
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settlement in a release agreement have failed thus far.

Plaintiff claims National Fire has

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attempted to add new and different terms to the release agreement not included in Exhibit A.

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Plaintiff intends to file a motion to enforce the settlement, but has no objection to scheduling the

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settlement conference to avoid further court intervention. Plaintiff offered to proceed with a

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private mediation in lieu of a court ordered settlement conference but had not yet received a

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response from National Fire at the time it filed its response to this motion. If National Fire

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rejects private mediation Plaintiff believes it would not be appropriate for Judge Mahan to

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preside over the settlement conference or any corresponding motion to enforce the settlement

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because the settlement was reached, in part, because of Judge Mahan’s rulings and order in one

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of the related cases currently on appeal to the Ninth Circuit. Plaintiff suggests that if the court

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wishes to schedule a settlement conference it should be scheduled before one of the judges

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presiding over Assurance Co. of America v. National Fire & Marine Co., 2:10-cv-2182-APG-

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GWF (“Assurance II”) or Maryland Casualty Co. v. National Fire & Marine Co., 2:11-cv-1671-

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APG-NJK (“Maryland I”); or Northern Insurance Co. of New York v. National Fire & Marine

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Co., 2:11-cv-1672-PMP-GWF (“Northern I”).

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National Fire replies that is has declined Zurich’s invitation to proceed to private

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meditation and believes that discussions would be more productive with the assistance of the

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court. National Fire is hopeful that the undersigned will accommodate its request because I am

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the only magistrate judge in the district who has previously facilitated settlement discussion

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between the parties. National Fire “sees no substantive basis” for a request for a settlement

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conference to be passed on to another magistrate judge in a later filed case who has not

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previously conducted a settlement conference between the Parties.

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The undersigned conducted a settlement conference in December 2011 in the case

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currently on appeal to the Ninth Circuit.

For this reason, National Fire requests that the

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undersigned facilitate settlement conference discussions in this case, presumably because of

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some familiarity with the issues involved in these related actions. Zurich does not oppose the

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settlement conference but suggests it should be conducted by a magistrate judge in one of the

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other pending cases.

Although Zurich does not
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state its reason for wanting a different

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magistrate judge to conduct the settlement conference, it has affirmatively stated that it does not

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believe that Judge Mahan should preside over a settlement conference or decide any motion to

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compel enforcement of the settlement. Both sides seem to be judge shopping.

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The Plaintiff filed a Notice of Settlement (Dkt. #46) April 23, 2014, indicating that the

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parties had reached a global settlement and anticipated the settlement would be finalized in forty-

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five days and a stipulation to dismiss filed. When the parties did not submit a stipulation to

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dismiss, the court entered an Order (Dkt. #48) giving the parties until June 27, 2014, in which to

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either file a stipulation for dismissal or a joint status report advising the court of the status of

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settlement and the anticipated date for filing the stipulation to dismiss.

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The joint status report indicates that a draft release agreement was circulated by

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Defendant National Fire June 2, 2014. The Plaintiff believes the release agreement added new

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and additional terms that were not part of the settlement reached between the parties. Defendant

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disagrees. Both sides agree that they are continuing to work on resolving their remaining

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differences. Both sides requested an additional twenty-one days to see if the parties could

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resolve their disputes.

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additional status report. Plaintiff has not filed a motion to enforce the settlement, but has

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indicated one will be filed if the parties’ ongoing discussions did not resolve the matter. Any

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dispositive motion filed will be decided by the district judge unless he refers it to the

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undersigned.

More than 21 days have now passed and the parties have not filed an

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Having reviewed and considered the matter,

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IT IS ORDERED that the parties shall have until August 18, 2014, in which to either

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file a stipulation for dismissal with prejudice, or an appropriate motion to seek resolution from

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the court.

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DATED this 4th day of August, 2014.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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