Tejada v. Ottomanelli's Cafe Franchising Corp. et al

Filing 16

ORDER SCHEDULING SETTLEMENT CONFERENCE Settlement Conference set for 9/19/2011 at 02:00 PM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge James L. Cott. (Signed by Magistrate Judge James L. Cott on 5/31/11) Copies sent by ECF to all counsel(cd)

USDCSDNY
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DOCUMENT
ELECTRONICALLY FILED

S/3//tI -­
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---------------------------------------------------------------)(

WILLIAM TEJADA,

Plaintiff,

ORDER SCHEDULING
SETTLEMENT CONFERENCE
11 Civ. 2112 (SAS) (JLC)

-v-

OTTOMANELLI'S CAFE FRANCHISING
CORP. d/b/a OTTOMANELLI BROTHERS
NY GRILL, et ai.,

(ECF Case)

Defendants.

---------------------------------------------------------------)(
JAMES L. COTT, United States Magistrate Judge.
The parties shall appear for a settlement conference before the undersigned on September
19,2011 at 2:00 p.m. in Courtroom 18A, United States Courthouse, 500 Pearl Street, New York,
New York. The Court's "Standing Order for All Cases Referred for Settlement to Magistrate
Judge James L. Cott" is enclosed and is incorporated herein by reference. Please read the
Standing Order carefully. The parties are directed to pay particular attention to paragraph 4,
which sets forth who must appear at the conference on behalf of a corporate party. The parties
should also note that paragraph 3 of the Standing Order requires ex parte written submissions,
which must be received by the Court no later than five (5) business days before the conference,
that is, September 12,2011, and that paragraph 5 requires the Acknowledgment Form be
submitted together with the ex parte settlement letter.

SO ORDERED.
Dated: New York, New York
May 31,2011

d States Magistrate Judge

Copies of this Order have been sent by ECF to all counsel of record.

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Revised February 18, 2011
JAMES 1. COTT

UNITED STATES MAGISTRATE JUDGE

Standing Order for All Cases Referred for Settlement
to Magistrate Judge James L. Cott
Courtroom
Room 18-A
United States Courthouse
Southern District of New York
500 Pearl Street
New York, NY 10007

Chambers
Room 1360
United States Courthouse
500 Pearl Street
New York, NY 10007
Telephone: [phone]
Facsimile: [phone]

Introduction
The Court believes the parties should fully explore settlement at the earliest opportunity.
Early consideration of settlement allows the parties to avoid the substantial cost, expenditure of
time, and uncertainty that are typically a part of the litigation process. Even for those cases that
cannot be resolved, early consideration of settlement can provide the parties with a better
understanding of the factual and legal nature of their dispute and streamline the issues to be
litigated.
Consideration of settlement is a serious matter that requires thorough preparation prior to
the settlement conference. Set forth below are the procedures the Court will require the parties
and counsel to follow and the procedures the Court typically will employ in conducting the
conference.
1.

Confidential Nature of Conference. All settlement conferences are "off the record." All
communications relating to settlement are strictly confidential and may not be used for
any purpose. They are not to be used in discovery and will not be admissible at trial.

2.

Magistrate Judge's Role. The magistrate judge functions as a mediator, attempting to
help the parties reach a settlement. Efficient use of this process requires that counsel and
their clients be (a) prepared for the conference, and (b) candid with the mediator.

3.

Ex Parte Settlement Letter. No later than five (5) business days before the conference,
counsel for each party must send the Court a letter, marked "Confidential Material for
Use Only at Settlement Conference," which should not be served on the other parties.
This ex parte letter must not exceed ten (10) pages, unless permission to do so has been
sought and granted by the court. The letter should include (a) the history of settlement
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negotiations, if any, including any prior offers or demands; (b) your evaluation of the
settlement value of the case and the rationale for it; (c) any case law authority in support
of your settlement position; and (d) any other facts that would be helpful to the mediator
in preparation for the conference. The reason the letter is to be submitted ~ parte is to
ensure that counsel are candid with the Court as to the strengths and weaknesses of their
case, and to provide a realistic assessment of the litigation risks each party faces were the
case to be resolved on the merits. To assure receipt before the deadline, it is
recommended that the settlement letter be sent to Chambers by fax - to [phone].
If the letter is sent by fax, please do not follow with a hard copy.
If the plaintiff has not already made a settlement demand, such a demand shall be
communicated to the opposing party no later than 14 days prior to the conference. If it
has not already done so, the opposing party shall respond to any demand no later than 7
days thereafter.
4.

Attendance of Parties Required. The parties not just the attorneys must attend in
person. A party's attendance is essential to the settlement process. It is vital that parties
hear the other side's presentation and have the opportunity to speak with the mediator
outside the presence of any adversary. If a party resides more than 100 miles from the
Courthouse, and it would be a great hardship for the party to attend in person, I will
sometimes excuse that party's presence but I will require that party to be available by
telephone throughout the settlement conference. If needed by a client, each party must
supply its own simultaneous interpreter (who need not have any special certification).
Corporate parties or labor unions must send the person with decision-making authority
who gives directions to counsel of record (not someone who has received settlement
authority from someone else). Where liability insurance is involved, a decision-making
representative of each carrier must attend in addition to the insured. This includes each
excess carrier unless specifically excused by the Court at least one week before the
conference. Because it is important that the decision-makers with respect to settlement
hear their adversaries' presentations and be available to answer questions from the Court,
the person who attends must be the person with responsibility for determining the amount
of any ultimate settlement and who has not had limitations placed by another person with
respect to his or her authority to settle. That is, corporate parties, labor unions. and
insurance companies (or any other party that is not a natural person) must send to the
conference the person ultimately responsible for giving settlement authority, not someone
who has received authority from someone else.
Where any government agency is a party, counsel of record must be accompanied by a
knowledgeable representative from the agency (or, if the agency official with knowledge
is more than 100 miles from the Courthouse, the official must be available to participate
by telephone). In addition, in cases where the Comptroller of the City of New York has
authority over settlement, the Assistant Corporation Counsel must make arrangements in
advance of the conference for a representative of the Comptroller either to attend the
conference or to be available by telephone to approve any proposed settlement.
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5.

Acknowledgment Form. COWlsel shall complete the Acknowledgment Form that appears
following this Standing Order. This Form must be submitted together with the Ex Parte
Settlement Letter and may be sent to the Court via facsimile at [phone]. If sent
by fax, please do not also send a hard copy.

6.

Consequences of Non-Compliance with Attendance Requirements. If a party fails to

come to the settlement conference with all the required persons (attorney, plus a

decision-making employee from the client, plus a decision-making representative from

each insurance carrier), that party may be required to reimburse all the other parties for

their time and travel expenses, and may face other sanctions.

7.

Conference Procedures. Unless advised otherwise by the Deputy Clerk, the conference
will take place in Courtroom 18A at 500 Pearl Street. At the outset of the mediation,
each attorney should be prepared to make a brief presentation in the presence of each
other and the parties, summarizing not merely a party's positions, but the party's interests
as well. Written remarks read aloud are usually ineffective. Counsel are also reminded
not to treat their opening remarks as if they were the equivalent of a jury address. While
there is no formula for the most effective presentation, counsel should consider
addressing (a) the most important issues of fact and law, (b) the most recent offer or
demand communicated to opposing counsel, and (c) any other matters that may help to
advance settlement. The merits of the case are obviously relevant to the value ofa
potential settlement, but settlement conferences are not the place to make legal
arguments. Discussion, if any, of legal issues should be offered solely in the context of
settlement, not litigation. COWlsel should gear their presentation to persuading the
opposing party, not the Court.
Following the presentations, the Court will allow cOWlsel to respond to points made by
opposing counsel and, if appropriate, to pose constructive questions. Clients may speak
too if that is desired. The Court encourages all parties to keep an open mind in order to
re-assess their previous positions and to discover creative means for resolving the
dispute.
After the initial "joint session," in most mediations the Court will meet separately with
each side. In these private meetings, the parties and their counsel should be prepared to
discuss their position on settlement, the reasons for their position, the amount of
attorneys' fees and litigation expenses incurred to date, and an estimate of the remaining
cost of litigating the case to judgment, including any appeal.

8.

Adjournments of Settlement Conferences. Telephone requests for adjournment are not
entertained. A party may make an application to adjourn or advance the date of the
settlement conference without providing cause as long as the application for a change in
date is made at least two weeks prior to the scheduled conference date. Otherwise,
counsel should set forth the reasons for seeking the change in date and must make the
application as soon as counsel becomes aware of the need of or potential need for the
change. In addition, the parties are required to seek a change in the date if (a) an
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adjournment would permit necessary discovery or exchange of information that would
make the conference more fruitful, or (b) a client who would otherwise be permitted to
participate by telephone would be available to attend the conference were it held on
another date. To seek a change in date, the party should first consult with all other
counsel as to their and their clients' (and insurers') availability on at least three dates.
Counsel should thereupon contact Deputy Clerk David Tam at [phone] between
10 a.m. and 4 p.m. to determine whether the Court is available for a settlement
conference on any of those dates. The party must then send a letter to the Court forthwith
(which may be sent by facsimile to [phone]), with copy to all counsel, confirming
the new date and time. The conference date is not changed until chambers receives the
confirmation letter and it is endorsed by me.
9.

Settlement in Advance of Mediation. If all parties advise the Court in writing that the
case has settled prior to the scheduled conference, I will grant one adjournment of up to
two weeks to a date certain. On that date, the parties must attend the settlement
conference unless they have filed a stipulation of dismissal or the equivalent with the
assigned district judge. Courtesy copies of settlement documents, to the extent submitted
to the assigned district judge, should also be sent to me.

10.

No Effect on other Deadlines. The scheduling of a settlement conference has no effect
on any deadlines or other pending ob 'ga 'ons in the case.

. ed States Magistrate Judge
Dated: New York, New York
February 18,2011

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ACKNOWLEDGMENT FORM
Complete this form (please print or type) or its equivalent, sign and date it, and send it (for
receipt no later than five business days prior to the conference) (l) to all other attorneys who will
be attending the conference and (2) to Judge Cott (if sent by fax, the fax number is (212) S05­
7990). Please read the certifications below carefully as your signature indicates your compliance
with them.

Name of Case:
Docket Number:

_ Civ. _ L ) (JLC)

I acknowledge that my client and I must attend a settlement conference on
_,
20_ at _:__.m. in Courtroom IS-A, United States Courthouse, 500 Pearl Street, New York,
New York.
1.
I am attorney for _ _ _ _ _ _ _ _ _ _-:--_ _ _ _ _ _ _ _ _ _ _ _ __
[state name of party/also state whether party is plaintiff or defendant].
(For corporate or other non-individual clients): The name of the representative of
my client who will attend the conference
IS:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. The title of this representative

If applicable (for insurance carrier): The name of the representative of the insurance
carrier who will attend the conference -- .._ - - - - - - - - - - - - - - - - - ­
2.

CHECK ONE LINE BELOW:
a.
b.

3.

_ _ The above-named individual will attend in person.
_ _ The above-named individual will attend by telephone because I certifY that
(1) such individua1lives and works more than 100 miles from the Courthouse (or,
if my client is not an individual, the client's decision-maker lives and works more
than 100 miles from the Courthouse), and (2) it would be a great hardship for this
individual to attend a settlement conference on this or any other date. This
individual understands that he or she must participate by telephone without
interruption for the duration of the conference.

I certifY that the person attending the conference (in person or by telephone) is the person
with ultimate responsibility for determining the settlement amount: that is, the person
responsible for giving settlement authority, not someone who has received authority from
another person. In addition, ifthere is an insurance carrier with authority over
settlement, a representative from such carrier with complete responsibility over
settlement will be present in person or by telephone.

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4.

I certify that I have read both the Court's Order scheduling this conference as well as the
"Standing Order for All Cases Referred for Settlement to Magistrate Judge Cott."

Dated:

----------------[signature of attorney]

[print attorney's name]

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