Derrick et al v. Standard Nutrition Company et al

Filing 87

ORDER by Magistrate Judge Stephan M. Vidmar SETTING a Settlement Conference for June 24, 2019, at 9:00 a.m. in a courtroom to-be-determined in Albuquerque. (jcm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RONNY DERRICK and ANGIE DERRICK,
Plaintiffs,
v.

No. 17-cv-1245 RB/SMV

STANDARD NUTRITION COMPANY,
JOHN DOES 1–5, and XYZ CORPORATE
OR BUSINESS ENTITIES 1–5,
Defendants,
and
STANDARD NUTRITION COMPANY,
Counterclaimant,
v.
RONNY DERRICK and ANGIE DERRICK,
Counter-defendants.
ORDER SETTING SETTLEMENT CONFERENCE
THIS MATTER is before the Court pursuant to a telephonic status conference held on
February 1, 2019. 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 June 24, 2019, at 9:00 a.m. in a courtroom to-be-determined at the
United States Historic Courthouse at 421 Gold Avenue Southwest, Albuquerque,
New Mexico.

The parties or a designated representative, other than counsel of record, with final
settlement authority, must attend in person. Counsel who will try the case must also attend in
person. Those attending the settlement conference must treat as confidential the information
discussed, positions taken, and offers made by other participants in preparation for and during the
conference.1 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(10th Cir. Apr. 2, 2012) (unpublished) (affirming dismissal of case as sanction for violating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 June 5, 2019, Plaintiff2 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 June 12, 2019, 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.3 If a release is contemplated, defense counsel
shall include a proposed form of release with the letter.

1

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.
2
Herein, the terms “Plaintiff” and “Defendant” encompass both singular and plural meanings.
3
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.

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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 not
settle, Plaintiff shall provide copies of these letters to the Court no later than 5:00 p.m. on June 19,
2019. 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 lost wages, and Defendant believes the correct amount of lost wages
is $500, Defendant’s letter must clearly state that Plaintiff’s lost wages amount to $500. It is
insufficient simply to say, “Defendant disagrees that Plaintiff has $1,000 in lost wages.” 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
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representative. The Court will expect each lead trial counsel to be prepared to present his or her
case on special damages.
No later than 5:00 p.m. on June 19, 2019, 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 [e-mail].4
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:

June 5, 2019

Defendant’s letter and counteroffer
due to Plaintiff:

June 12, 2019

Plaintiff provides copies of settlement letters
to the Court by:

5:00 p.m. on June 19, 2019

Parties’ confidential position statements
due to the Court:

5:00 p.m. on June 19, 2019

4

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

Settlement Conference:

June 24, 2019, at 9:00 a.m.

IT IS SO ORDERED.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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