Hibner v. Home Depot, U.S.A., Inc.
Filing
69
ORDER SETTING SETTLEMENT CONFERENCE by Magistrate Judge Gregory J. Fouratt. Settlement Conference set for 10/25/2018 at 10:00 AM in Las Cruces. (mm)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
CHRIS HIBNER,
Plaintiff,
v.
Civ. No. 17-1175 MV/GJF
HOME DEPOT U.S.A., INC.,
Defendant.
ORDER SETTING SETTLEMENT CONFERENCE
To facilitate a final disposition of this case, a mandatory settlement conference will be
conducted in accordance with Federal Rule of Civil Procedure 16(a)(5).
IT IS ORDERED that all parties and their lead trial counsel shall appear before me
at the United States Courthouse, 100 N. Church Street, Las Cruces, New Mexico, in the
Dona Ana Courtroom, on October 25, 2018, at 10:00 a.m. An insured party or an uninsured
corporate party shall appear by a representative with full and final authority to discuss and
enter into a binding settlement.
This requirement cannot be satisfied by sending a local
representative if the appropriate representative resides in another state. Nor can it be satisfied by
sending a corporate representative who must still seek final authority from other corporate
personnel not physically present at the conference. See D.N.M.LR-Civ. 16.2(c). A party’s
personal appearance is intended to increase the efficiency and effectiveness of the settlement
conference by reducing the time for communication of offers and expanding the ability to
explore options for settlement. A party’s request to be excused must be made in writing five (5)
calendar days before the conference. See D.N.M.LR-Civ. 16.2(d).
Experience teaches that settlement conferences are often unproductive unless the parties
have exchanged demands and offers before the conference and made a serious effort to settle the
case on their own. Accordingly, by October 4, 2018, plaintiff’s 1 counsel shall send defense
counsel a letter that sets forth at least the following information: (a) a brief summary of the
evidence and legal principles that plaintiff asserts will establish liability; (b) a brief explanation
of why damages or other relief would be granted at trial; (c) an itemization of any claimed
damages, including any special damages - i.e., damages for pecuniary losses, such as past
medical expenses, lost wages, or property damages - in the exact dollar amount plaintiff is
claiming for each category; and (d) a settlement demand.
By October 11, 2018, defense counsel shall send plaintiff’s counsel a letter setting 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 settlement offer. If a release or a settlement
agreement is contemplated, defense counsel shall include a proposed form of release with
the counteroffer. 2 If defendant disagrees with the amount of special damages plaintiff has
claimed, defendant’s counteroffer must state the dollar amount defendant believes to be correct
for each category.
For example, 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 to merely
say, “defendant disagrees that plaintiff has $1,000 in past medical expenses.”
If a dispute about special damages exists, counsel shall: (1) meet in person or
telephonically before the settlement conference to try to resolve the dispute (an exchange of
1
The words “plaintiff” and “defendant” include the plural form of the words if the case involves multiple plaintiffs
and/or defendants. The attorney for each plaintiff and defendant must comply with the terms of this order. If an
attorney represents more than one plaintiff or defendant, the attorney must comply with the terms of this order with
respect to each of his/her clients.
2
If there are disputes about the language of the release or the settlement agreement, the parties are ordered to alert
the Court to the disputes in their confidential letters to the Court that are described infra.
emails or correspondence is insufficient); and (2) if the dispute cannot be resolved, counsel must
bring all documentation supporting his or her position on special damages to the conference.
These letters typically should not exceed five (5) pages, and counsel must ensure that
each participant reads the opposing party’s letter before the settlement conference. If settlement
authority for defendant is provided by a committee, defendant must ensure that the committee
reviews plaintiff’s letter before finalizing settlement authority.
Those attending the
conference or reviewing the letters exchanged must treat as confidential the information
discussed and offers made by other participants before and during the conference. 3
At least seven (7) calendar days before the conference, plaintiff’s counsel shall provide
me copies of the letters exchanged between the parties. In addition, each party must provide me,
in confidence, a letter (typically no more than seven (7) pages) containing a brief summary of the
facts; analysis of the applicable law, including evidentiary issues; strengths and weaknesses of
the case; status of discovery; identification of pending motions; an itemization of damages or
relief requested; status of settlement negotiations to date; and the names of those who will attend
the conference and in what capacity. This confidential letter must not be a mere restatement of
the letter served on opposing counsel. All matters communicated to me in the confidential letter
will be kept confidential, and will not be disclosed to any other party, or to the trial judge. Once
I read the letters provided, I likely will have ex parte pre-settlement telephone conferences with
counsel to obtain additional information to assist my efforts to facilitate settlement.
Furthermore, if any party has any video or audio recordings of the incident upon which
this action is based, that party must send me a copy of the recording at least seven (7) calendar
days before the conference. Parties should also consider sending me copies of any other
3
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.
materials that can enhance my preparation, including photographic or documentary evidence,
discovery responses, or deposition excerpts. The parties shall submit these letters and other
materials to me, preferably by e-mail, (gfproposedtext@nmcourt.fed.us), or by mail, as long as
the materials arrive in my chambers by the above deadline. It is not necessary to send an original
if a document is sent by e-mail.
At the settlement conference, counsel should be prepared to discuss the factual and legal
highlights of their cases. Separate confidential caucuses will be held with each party and the
party’s representative. 4 Attached is an outline for counsel to review with their clients before the
settlement conference to make the best use of the time allotted.
In the days immediately preceding the settlement conference, if any party believes for
any reason that negotiation attempts would not be fruitful at the time set for the conference (for
example, insufficient discovery or a need to wait on the resolution of a dispositive motion), the
parties should contact my chambers to schedule a status conference to discuss the concern.
IN SUMMARY:
Plaintiff’s letter due to defendant:
October 4, 2018
Defendant’s letter due to plaintiff:
October 11, 2018
All letters (and other materials) due to Court:
October 18, 2018 5
IT IS SO ORDERED.
_______________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
4
Should a party require language translation or interpreting services, such services must be provided by the party
and/or counsel at their expense. Such services are not provided by the Court in civil cases.
5
A $100 fine for each day a party misses any of the above deadlines may be assessed unless a request for an
extension is approved by the Court.
SETTLEMENT CONFERENCE PREPARATION
In negotiations, the party that is best prepared usually obtains the best result. Because settlement
conferences can be more efficient and productive if all parties and counsel are prepared, the
following are some areas to consider to aid in the effectiveness of this settlement conference.
A.
FORMAT
1.
2.
B.
Parties with ultimate settlement authority must be personally present.
The Court will use a mediation format and private caucusing with each side. The
judge may address your client directly.
ISSUES
1.
2.
What remedies are available resulting from this litigation or otherwise?
3.
Is there any ancillary litigation pending/planned which affects case value?
4.
Do you have enough information to value the case? If not, how are you going to
get more information before the conference?
5.
C.
What issues (in and outside of this lawsuit) need to be resolved? What are the
strengths and weaknesses of each issue? What is your most persuasive argument?
Do attorney’s fees or other expenses affect settlement? Have you communicated
this to the other side?
AUTHORITY
1.
Are there outstanding liens? Have you verified amounts and whether they are
negotiable? Do you need to include a representative of the lien holder? If so,
contact the Court immediately.
2.
Is there valid insurance coverage? In what amount? If coverage is at issue, or the
amount/type affects settlement value, have you notified the other side? Do you
need to include the representative from more than one company/carrier? If so,
notify the Court immediately.
D.
NEGOTIATIONS
1.
2.
Can you have any discussions before the settlement conference to make it proceed
more efficiently?
3.
What value do you want to start with? Why? Have you discussed this with your
client?
4.
What value do you want to end with? Why? Have you discussed this with your
client? Is it significantly different from values you have placed on this case at
other times?
5.
Is there confidential information which affects case value? Why shouldn’t it be
disclosed? How can the other side be persuaded to change value if that party
doesn’t have this information?
6.
E.
Where have your last discussions ended?
What happens if you don’t settle the case at the conference? What is your best
alternative to a negotiated settlement? Why?
CLOSING
1.
Have you discussed settlement formats with your client? Does the client
understand structured settlements, annuities, and Rule 68 offers to compromise?
2.
How soon could checks/closing documents be received?
3.
If settlement is not reached, and further discovery is needed, what is your plan for
continued settlement discussions? Do you want Court involvement in these talks?
4.
If settlement is not reached, please be prepared to discuss it again at the Final
Pretrial Conference.
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