Joe-Cruz v. United States of America
Filing
39
ORDER by Magistrate Judge Stephan M. Vidmar SETTING a Settlement Conference for January 9, 2017, at 9:00 a.m. in Albuquerque - 740 Visiting Judge's Chambers. (sg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LAURA JEAN JOE-CRUZ,
Plaintiff,
v.
No. 16-cv-0258 JCH/WPL
UNITED STATES OF AMERICA,
Defendant.
ORDER SETTING SETTLEMENT CONFERENCE
THIS MATTER is before the Court pursuant to a telephonic status conference held on
December 8, 2016.
To facilitate a final disposition of this case, a mandatory Settlement
Conference will be conducted in accordance with Rule 16(a)(5) of the Federal Rules of Civil
Procedure. The conference will be held on January 9, 2017, at 9:00 a.m. in Visiting Judge
Chambers, Suite 740, Pete V. Domenici United States Courthouse at 333 Lomas Boulevard
Northwest in Albuquerque, New Mexico.
The parties or a designated representative with full authority to resolve the case must
attend in person. Counsel who will try the case must also attend in person. Counsel are
encouraged to read “Keys to a Successful Mediation” by Judge James A. Hall prior to the
settlement conference.1 Those attending the settlement conference must treat as confidential the
information discussed, positions taken, and offers made by other participants in preparation for
1
For ease of reference, the Court has posted the article on its website, and the article may be accessed at
http://www.nmcourt.fed.us/web/DCDOCS/Judges/Files/HallMediationArticle.pdf
and during the conference.2 See generally Hand v. Walnut Valley Sailing Club, No. 11-3228,
2012 WL 1111137 (10th Cir. Apr. 2, 2012) (unpublished) (affirming dismissal of case as
sanction for violating confidentiality of settlement conference). Counsel shall advise their clients
regarding appropriate attire for appearance in federal court.
No later than December 19, 2016, Plaintiff3 shall serve on Defendant a letter setting forth
at least the following information: (a) a brief summary of the evidence and legal principles that
Plaintiff assert will allow it to establish liability; (b) a brief explanation of why damages or other
relief would be warranted; (c) an itemization of the principles supporting those damages; and (d)
a settlement demand.
No later than December 27, 2016, Defendant shall serve on Plaintiff a letter that sets
forth at least the following information: (a) any points in Plaintiff’s letter with which the defense
agrees; (b) any points in Plaintiff’s letter with which the defense disagrees, with references to
supporting evidence and legal principles; and (c) a counteroffer.4 If a release is contemplated,
defense counsel shall include a proposed form of release with the letter.
Each of these letters typically should be five pages or fewer, and counsel must ensure that
each party reads the opposing party’s letter before the Settlement Conference. If the case does
2
This does not prohibit disclosures stipulated to by the parties, necessary in proceedings to determine the existence
of a binding settlement agreement, or as otherwise required by law.
3
Herein, the terms “Plaintiff” and “Defendant” shall encompass both singular and plural meanings.
4
If the parties have engaged in settlement negotiations, Plaintiff’s demand should be lower than Plaintiff’s most
recent demand, and Defendant’s counteroffer should be higher than Defendant’s most recent counteroffer.
2
not settle, Plaintiff shall provide copies of these letters to the Court no later than 5:00 p.m.
on January 4, 2017. Otherwise, the letters will be kept confidential.
It has been the Court’s experience that disagreement over special damages—e.g., past
medical expenses, lost wages, property damages—often presents an obstacle to settlement.
Therefore, if Plaintiff is claiming special damages, Plaintiff’s letter must itemize such special
damages and state the exact dollar amount Plaintiff is claiming for each category. If Defendant
disagrees with the amount of special damages listed in Plaintiff’s letter, Defendant’s letter must
state the exact dollar amount Defendant believes to be correct for each category. In other words,
if Plaintiff claims $1,000 in past medical expenses, and Defendant believes the correct amount of
past medical expenses is $500, Defendant’s letter must clearly state that Plaintiff’s past medical
expenses amount to $500. It is insufficient simply to say, “Defendant disagrees that Plaintiff has
$1,000 in past medical expenses.” If there is a dispute over any item of special damages, counsel
will be required to do two things. First, lead trial counsel for Plaintiff and lead trial counsel for
Defendant must meet (in person or telephonically) prior to the settlement conference to try to
resolve the dispute. Counsel are specifically instructed to talk to each other; an exchange of
emails or correspondence is insufficient. Second, if the dispute cannot be resolved, lead trial
counsel for Plaintiff and lead trial counsel for Defendant will each bring with them to the
settlement conference all documentation supporting their position on special damages and will be
prepared to personally argue their position. This duty cannot be delegated to an associate, a
party representative, or an insurance representative.
The Court will expect each lead trial
counsel to be prepared to present his or her case on special damages.
3
No later than 5:00 p.m. on January 4, 2017, each party must provide the Court, in
confidence, a concise position statement (typically no more than ten pages) containing an
analysis of the strengths and weaknesses of its case and the names of the individuals who will be
attending the conference and in what capacity. Position statements must be submitted to the
Court by e-mail at VidmarChambers@nmcourt.fed.us.5
Furthermore, if any party has in its possession any video or audio recording of the
incident upon which this action is based, that party must submit a copy of the recording to the
Court no later than 5:00 p.m. on January 4, 2017.
The Settlement Conference will not be vacated or rescheduled except upon motion and
for good cause shown. Any motion to vacate or reschedule the Settlement Conference shall
provide the Court with sufficient notice to ensure that other matters may be scheduled in the time
allotted for the Settlement Conference.
The Court may contact counsel ex parte prior to the Settlement Conference to discuss the
Settlement Conference.
IT IS THEREFORE ORDERED as follows:
Plaintiff’s letter and settlement demand
due to Defendant:
December 19, 2016
Defendant’s letter and counteroffer
due to Plaintiff:
December 27, 2016
Plaintiff provides copies of settlement letters
to the Court by:
January 4, 2017, at 5:00 p.m.
5
Each e-mail message and its attachments cannot exceed 5 MB. Data exceeding 5 MB should be submitted in
individual e-mail messages, each less than 5 MB.
4
Parties’ confidential position statements
due to the Court:
January 4, 2017, at 5:00 p.m.
Settlement Conference:
January 9, 2017, at 9:00 a.m.
IT IS SO ORDERED.
______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
5
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