Heumann v. Asanti

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DOUGLAS C. HEUMANN, et al., Case No.: 19cv1119-W(MSB)

12 Plaintiffs, ORDER GRANTING JOINT MOTION TO 13 v. CONTINUE EARLY NEUTRAL EVALUATION CONFERENCE [ECF NO. 8] 14 TAMMIE LEE ASANTI, et al., 15 Defendants. 16 AND RELATED COUNTERCLAIMS 17 18 19 Pending before the Court is the parties’ “Joint Motion to Continue Early Neutral 20 Evaluation Conference.” (ECF No. 8.) They ask the Court to continue the Early Neutral 21 Evaluation Conference (“ENE”) scheduled for August 21, 2019, until August 30, 2019, or 22 the first available date on the Court’s calendar. (Id. at 2.) The parties further ask the 23 Court to continue all related deadlines. (Id.) In support, they state that “Defendant’s 24 counsel has a calendar conflict in that he is required to appear at an Early Neutral 25 Evaluation Conference in Case No. 19CV116 DMS JLB at 9:00 a.m. on August 21, 2019.” 26 (Id.) 27 / / / 2 motion. Accordingly, the Court modifies its ENE order as follows: 3 An ENE will be held on September 9, 2019, at 10:00 a.m. in the chambers of the 4 Honorable Michael S. Berg, United States Magistrate Judge, located at 221 West 5 Broadway, second floor, San Diego, California, 92101. All discussions at the ENE 6 Conference will be informal, off the record, privileged, and confidential. Counsel for any 7 non-English speaking party is responsible for arranging for the appearance of an 8 interpreter at the conference. The following rules and deadlines apply: 9 1. Personal Appearance of Parties Required: All named parties, party 10 representatives, including claims adjusters for insured defendants, as well as the 11 principal attorney(s) responsible for the litigation, must be present in person and legally 12 and factually prepared to discuss and resolve the case. Counsel appearing without their 13 clients (whether or not counsel has been given settlement authority) will be cause for 14 immediate imposition of sanctions and may also result in the immediate termination of 15 the conference. 16 2. Full Settlement Authority Required: A party or party representative with 17 full settlement authority1 must be present at the conference. Retained outside 18 corporate counsel shall not appear on behalf of a corporation as the party 19 representative who has the authority to negotiate and enter into a settlement. A 20 government entity may be excused from this requirement so long as the government 21 attorney who attends the ENE has (1) primary responsibility for handling the case, and 22 23 1 “Full settlement authority” means that the individuals at the settlement conference must be 24 authorized to fully explore settlement options and to agree at that time to any settlement terms 25 acceptable to the parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to change the settlement position of a 26 party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement authority to attend the conference contemplates that the person’s 27 view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum 2 official(s) having ultimate settlement authority. 3 3. Confidential ENE Statements Required: No later than September 2, 2019, 4 the parties shall submit directly to Magistrate Judge Berg’s chambers (via hand delivery 5 or by e-mail to the Court at efile_berg@casd.uscourts.gov), confidential settlement 6 statements. The ENE statement is limited to five (5) pages or less, and up to five (5) 7 pages of exhibits or declarations. Each party’s ENE statement must outline (1) the 8 nature of the case and the claims, (2) position on liability or defense, (3) position 9 regarding settlement of the case with a specific demand/offer for settlement, and 10 (4) any previous settlement negotiations or mediation efforts. 11 If a specific demand or offer cannot be made at the time the ENE statement is 12 submitted, then the reasons as to why a demand or offer cannot be made must be 13 stated. Further, the party must explain when they will be in a position to state a 14 demand or offer. General statements such as a party will “negotiate in good faith” is 15 not a specific demand or offer. The ENE statement should be submitted confidentially 16 and need not be shared with other parties. 17 4. New Parties Must be Notified by Plaintiff or Plaintiff’s Counsel: Plaintiff’s 18 counsel shall give notice of the ENE to parties responding to the complaint after the 19 date of this notice. 20 5. Case Management Conference: If the case does not settle during the ENE, 21 the Court will conduct a Case Management Conference. In preparation for this 22 conference, the parties must do the following: 23 a. Meet and confer pursuant to Fed. R. Civ. P. 26(f) no later than 24 August 26, 2019; 25 b. File a Joint Discovery Plan no later than September 2, 2019. 26 Agreements made in the Joint Discovery Plan will be treated as binding stipulations that 27 are effectively incorporated into the Court’s Case Management Order. The Joint 2 must include the following: 3 i. Service: A statement as to whether any parties remain to be 4 served and, if so, a proposed deadline for service; 5 ii. Amendment of Pleadings: The extent to which parties, claims, or 6 defenses are expected to be added or dismissed and a proposed deadline for amending 7 the pleadings; 8 iii. Protective Order: Whether a protective order is contemplated to 9 cover the exchange of confidential information and, if so, the date by which the 10 proposed order will be submitted to the Court; 11 iv. Privilege: The procedure the parties plan to use regarding claims 12 of privilege and whether an order pursuant to Fed. R. Evid. 502 will be sought; 13 v. Evidence Preservation: Whether the parties have discussed 14 issues related to the preservation of relevant evidence and if there are areas of 15 disagreement, how the parties are resolving them; 16 vi. Electronic Discovery: In addition to the requirements set forth in 17 Fed. R. Civ. P. 26(f)(3)(C), the parties must describe their agreements regarding 18 methodologies for locating and producing electronically stored information and the 19 production of metadata, and must identify any issues or agreements regarding 20 electronically stored information that may not be reasonably accessible (see Fed. R. Civ. 21 P. 26(b)(2)(B)); 22 vii. Discovery: In addition to the requirements of Fed. R. Civ. P. 23 26(f)(3)(B), the parties must describe the discovery taken to date (if any), any proposed 24 limitations or modifications of the discovery rules, and any identified discovery disputes; 25 and 26 viii. Related Cases: Any related cases or proceedings pending before 27 another judge of this court, or before another court or administrative body. 1 C. Exchange initial disclosures pursuant to Rule 26(a)(1)({A-D) no later than 2 || September 2, 2019. 3 6. Requests to Continue an ENE Conference: Local Rule 16.1(c) requires that 4 ENE take place within forty-five (45) days of the filing of the first answer. Requests to 5 || continue ENEs are rarely granted. An ENE may be rescheduled only upon a showing of 6 || good cause and adequate notice to the Court. Absent good cause, requests for 7 || continuances will not be considered unless submitted in writing no fewer than seven 8 ||(7) calendar days prior to the scheduled conference. 9 IT IS SO ORDERED. 10 ||Dated: August 14, 2019 = _ 2 FF D Honorable Michael S. Berg United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28