Painter v. Smith et al

Filing 121

ORDER denying 120 Motion For Disclosure Of Brief. IT IS FURTHER ORDERED that a Judicial Settlement Conference shall convene at 9:30 a.m. on Tuesday, November 21, 2017, in Courtroom #2-2 of the Federal Courthouse, 401 W. Trade Street, Charlotte, North Carolina. Signed by Magistrate Judge David Keesler on 11/16/17. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:15-CV-369-MOC-DCK
GREGORY TODD PAINTER, JR.,
Plaintiff,
v.
JONATHAN ADAMS, et al.,
Defendants.

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ORDER

THIS MATTER IS BEFORE THE COURT on Plaintiff’s “Motion For Disclosure Of
Brief” (Document No. 120) filed on November 15, 2017. This motion has been referred to the
undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate review is
appropriate. Having carefully considered the motion, the record, and applicable authority, the
undersigned will deny the motion.
BACKGROUND
“Defendants’ Motion For Judicial Settlement Conference” (Document No. 111) was filed
on October 16, 2017. Defendants stated that they believed the parties “will be able to reach a
settlement with the aid of a judicial officer,” and that Plaintiff “does not object to this motion.”
(Document No. 111).
On October 17, 2017, the Honorable Max O. Cogburn, Jr. granted Defendants’ motion,
referring the matter to the undersigned as judicial settlement officer, and opining that the
undersigned’s participation “will not create a barrier under Local Rule 16.3(D) in the further
handling of this case inasmuch as the pretrial substantive issues have been resolved.” (Document
No. 113).

On October 23, 2017, the undersigned issued an Order scheduling a Judicial Settlement
Conference for November 21, 2017. Also on October 23, 2017, the undersigned issued additional
instructions to counsel for the parties regarding the Judicial Settlement Conference by a letter sent
by United States mail. See (Document No. 120-1). That letter included the following pertinent
requirements and information:
Confidential Settlement Briefs: Not longer than 5 pages,
discussing the strengths and weaknesses of your position and the
perceived strengths and weaknesses of your opponent’s position.
Please include a statement of what your client believes would be a
fair resolution of the matter. Briefs should be delivered to
chambers only (at the above address) on or before November 14,
2017.
Format: The Court generally follows the North Carolina mediation
rules . . .
The judicial settlement conference is confidential. Nothing said,
done, or produced during the conference shall constitute an
admission of liability or an agreement adverse to the
participating party’s interest. By attending this conference, the
parties agree to such confidentiality as well as to summary
enforcement by an appropriate Order of the district court.
I look forward to working with you at the judicial settlement
conference. While a copy of this letter is being shared with the
presiding district judge, the matters discussed at the conference will
not be shared unless a final resolution is reached.
(Document No. 120-1) (emphasis in original letter).
Plaintiff filed a “Motion For Leave To Amend The Complaint” (Document No. 115)
pursuant to Judge Cogburn’s order to file a motion to amend. See (Document No. 112, p.15). The
motion to amend was originally referred to the undersigned; however, that referral was removed
on November 15, 2017.

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DISCUSSION
By the instant motion, Plaintiff seeks to compel the disclosure of Defendants’ confidential
settlement brief submitted pursuant to the undersigned’s directions. (Document No. 120). Plaintiff
contends he interpreted “Confidential” to exempt the parties from electronic filing pursuant to
Local Rule 5.2.1(B), but believed that the parties’ confidential settlement briefs still had to be
served on all parties pursuant to Local Rules 5.2.1(E) and 5.3(C). Id. Plaintiff contends that he
“will suffer prejudice if Defendants are permitted to argue positions regarding a pending Motion
before the Court where Plaintiff is not permitted even to read said arguments.” (Document No.
120, p.2). The undersigned finds that Plaintiff’s motion lacks merit.
The purpose of the upcoming Judicial Settlement Conference is for the undersigned to
assist the parties in reaching an acceptable resolution of this case, which they have indicated they
believe is attainable. See (Document No. 111). In furtherance of that goal, the undersigned here,
as in all such circumstances, required the parties to provide a “confidential settlement brief”
“delivered to chambers only,” addressing the strengths and weaknesses of their case and the
perceived strengths and weaknesses of their opponents’ case. (Document No. 120-1). The parties
were not directed to argue positions on any pending motions, nor did their settlement briefs provide
such argument. The parties’ submissions, along with the entirety of the Judicial Settlement
Conference proceedings, are intended to be confidential and will not be shared with Judge Cogburn
or anyone else, unless otherwise agreed by the parties and the undersigned judicial settlement
officer.
Plaintiff’s misunderstanding of the requirements is regrettable, but the undersigned is not
persuaded that he has, or will, suffer any prejudice based on that misunderstanding.

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Plaintiff’s reliance on Local Rule 5.2.1, in contravention to the explicit instructions of the
undersigned’s letter of October 23, 2017, is misplaced. Local Rule 5.2.1 generally addresses the
“Filing Of Papers….”

Local Rule 5.2.1(E) specifically provides guidance for submitting

“proposed orders . . . and other proposed documents for consideration and entry by the Court or
the Clerk of Court electronically.” That Rule further provides that “[s]uch proposed documents
must be submitted through cyberclerk” and may be submitted as attachments. Local Rule 5.2.1(E).
Plaintiff acknowledges that he interpreted the undersigned’s letter as exempting the parties from
electronic filing. (Document No. 120, p.1). Moreover, Plaintiff does not contend that he or
Defendants were expected to provide any sort of “proposed” document by cyberclerk or
attachment. Instead, both sides submitted their settlement briefs by email to the undersigned’s
staff on or about November 14, 2017. Similarly, Local Rule 5.3 addresses “service by electronic
means,” which, again, Plaintiff acknowledges the parties were exempt from for purposes of their
confidential settlement briefs.
As noted above from the undersigned’s letter to the parties, the Court generally follows the
North Carolina mediation rules when conducting mediation or alternative dispute resolution. See
Local Rule 16.3(B) (citing N.C.Gen.Stat. §7A-38).

The confidentiality of pre-settlement

conference submissions, as well as the confidentiality of the Judicial Settlement Conference itself,
is consistent with the Mediation Rules and supports an efficient and effective Judicial Settlement
Conference. The undersigned finds the following excerpts from North Carolina’s Mediation Rules
to be instructive here:
Evidence of statements made and conduct occurring in a mediated
settlement conference or other settlement proceeding conducted
under this section, whether attributable to a party, the mediator,
other neutral, or a neutral observer present at the settlement
proceeding, shall not be subject to discovery and shall be

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inadmissible in any proceeding in the action or other civil actions on
the same claim, . . . .
No mediator, other neutral, or neutral observer present at a
settlement proceeding shall be compelled to testify or produce
evidence concerning statements made and conduct occurring in
anticipation of, during, or as a follow-up to a mediated settlement
conference or other settlement proceeding pursuant to this section in
any civil proceeding for any purpose. . . .
N.C.Gen.Stat §7A-38.1(l) (emphasis added).
Based on the foregoing, the undersigned will deny the pending motion.
The undersigned looks forward to working with both sides on November 21, 2017, to try
to secure a fair resolution of this lawsuit. This case is not assigned to the undersigned for
disposition, and there are no other motions currently referred to the undersigned. See Local Rule
16.3(D)(3). The undersigned will enter the Judicial Settlement Conference with an open mind and
no bias towards either side. Counsel for both parties will have ample opportunity to present their
positions in this case to the undersigned judicial settlement officer – in confidence.
IT IS THEREFORE ORDERED that Plaintiff’s “Motion For Disclosure Of Brief”
(Document No. 120) is DENIED.
IT IS FURTHER ORDERED that a Judicial Settlement Conference shall convene at 9:30
a.m. on Tuesday, November 21, 2017, in Courtroom #2-2 of the Federal Courthouse, 401 W.
Trade Street, Charlotte, North Carolina.
SO ORDERED.
Signed: November 16, 2017

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