Lara v. City of Roswell et al

Filing 25

ORDER SETTING SETTLEMENT CONFERENCE by Magistrate Judge Gregory J. Fouratt. Settlement Conference set for 2/6/2019 at 10:00 AM in Roswell. (gbg)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
JULIA LARA,
Plaintiff,
v.

Civ. No. 18-407 MV/GJF

CITY OF ROSWELL, et al.,
Defendants.
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 THEREFORE ORDERED that all parties and their lead trial counsel shall
appear before me at the United States Courthouse, 500 N. Richardson, Roswell, New Mexico,
on February 6, 2019, 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 January 16, 2019, 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 January 23, 2019, 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 emails or

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.

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 materials that

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.

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, ([e-mail]), 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:

January 16, 2019

Defendant’s letter due to plaintiff:

January 23, 2019

All letters (and other materials) due to Court:

January 30, 2019 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.