Murfitt v. Safeco Insurance Company

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FLINT MURFITT, Case No.: 21-CV-1066-BEN(WVG)

12 Plaintiff, AMENDED NOTICE AND ORDER 13 v. FOR (1) EARLY NEUTRAL EVALUATION CONFERENCE, 14 SAFECO INSURANCE COMPANY, (2) CASE MANAGEMENT 15 Defendant. CONFERENCE, AND (3) TELEPHONIC STATUS 16 CONFERENCE 17 [Doc. No. 10.] 18 19 20 21 The joint motion to continue the August 23, 2021 Early Neutral Evaluation (“ENE”) 22 and Case Management Conference (“CMC”) and the August 18, 2021 status conferences 23 is GRANTED. These dates are vacated and reset below. 24 IT IS HEREBY ORDERED that an ENE of your case and CMC will be held on 25 September 27, 2021, at 9:00 a.m., before United States Magistrate Judge William V. 26 Gallo, Edward J. Schwartz U.S. Courthouse, 221 West Broadway, Second Floor, San 27 Diego, California. The attorneys and parties are to alert chambers of their arrival via the 28 1 call button in the second-floor elevator lobby. 2 Additionally, on September 21, 2021, beginning at 9:00 a.m. , the Court will hold 3 an attorneys-only telephonic status conference with each party separately.2 The purpose 4 of this confidential, off-the-record teleconference is for the Court’s benefit in assessing 5 each party’s concerns, challenges, and whether the Court can assist in alleviating these. On 6 or before August 11, 2020, each attorney intending to participate shall lodge, via 7 electronic mail addressed to efile_Gallo@casd.uscourts.gov, (1) the name of each attorney 8 who will participate and (2) a telephone number at which each attorney may be reached 9 directly without fail at the time of the conference. 10 I. EARLY NEUTRAL EVALUATION CONFERENCE 11 The following are mandatory guidelines for the parties preparing for the ENE 12 Conference. 13 1. Purpose of Conference 14 The purpose of the ENE is to permit an informal discussion between the attorneys, 15 parties and the settlement judge of every aspect of the lawsuit in an effort to achieve an 16 early resolution of the case. All conference discussions will be informal, off the record, 17 privileged and confidential. Counsel for non-English speaking parties is responsible for 18 arranging for the appearance of an interpreter at the conference. 19 2. Personal Participation of Parties Required 20 All parties, adjusters for insured defendants, and other representatives of a party 21 22 23 1 The Court has received the parties’ election to conduct the ENE/CMC via Zoom. A decision on the request will be made closer to the date of the ENE/CMC. 24 25 2 The Court will contact the first party and proceed to contact the remaining parties one at a time. Each call may be short or lengthy. Counsel are required to be available for the 26 Court’s call beginning at the appointed time and remain available until they are called. If 27 counsel has not received a call from chambers after 20 minutes, counsel is directed to call chambers at (619) 557-6384. If multiple counsel will appear for a party, all counsel shall 28 1 having full and complete authority to enter into a binding settlement, and the principal 2 attorneys responsible for the litigation, must be present in person and legally and factually 3 prepared to discuss settlement of the case. See S.D. Cal. Civ. L. R. 16.1(c). 4 3. Full Settlement Authority Required 5 In addition to counsel who will try the case, a party or party representative with full 6 settlement authority3 must participate in the conference. In the case of a corporate entity, 7 an authorized representative of the corporation who is not retained outside counsel must be 8 present and must have discretionary authority to commit the company to pay an amount up 9 to the amount of the plaintiff’s prayer (excluding punitive damage prayers). The purpose 10 of this requirement is to have representatives present who can settle the case during the 11 course of the conference without consulting a superior. 12 Unless there are extraordinary circumstances, persons required to attend the 13 conference pursuant to this Order will not be excused from personal attendance. After 14 conferring with opposing counsel, requests to be excused from attendance for extraordinary 15 circumstances shall be made in writing at least one week before the conference. Failure to 16 appear at the ENE conference will be grounds for sanctions. 17 4. Settlement Proposal and Response Required 18 No later than July 28, 2021, Plaintiff shall submit to Defendant a written settlement 19 proposal. No later than August 6, 2021, Defendant shall submit a response to Plaintiff’s 20 21 3 “Full authority to settle” means that the individuals at the settlement conference must be 22 authorized to fully explore settlement options and to agree at that time to any settlement 23 terms acceptable to the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to 24 change the settlement position of a party. Pitman v. Brinker Intl., Inc., 216 F.R.D. 481, 25 485-86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement authority to attend the conference includes that the person’s view of the case may be altered 26 during the face-to-face conference. Id. at 486. A limited or a sum certain of authority is not 27 adequate. The person with full settlement authority must be able to negotiate a settlement without being restricted by any predetermined level of authority. Nick v. Morgan’s Foods, 28 1 settlement proposal. All parties shall be prepared to address in their ENE Statements, and 2 discuss at the ENE conference, the settlement proposal and response. 3 5. ENE Statements Required 4 In accordance with the Court’s Chambers Rules, each party shall exchange its 5 settlement Statement with all opposing parties. Additionally, in accordance with the 6 Court’s Chambers Rules, each party shall submit a confidential or non-confidential 7 Statement to the Court. Both the exchange of Statements between the parties and 8 submissions of Statements to the Court shall occur on or before August 11, 2020. The 9 Statement each party submits directly to the chambers shall be five pages or less and shall 10 outline the nature of the case, the claims, the defenses, and the parties’ positions regarding 11 settlement of, and attempts to settle the case. All Statements must comply with the 12 Court’s Chambers Rules. 13 The parties shall meet and confer in good faith prior to the ENE Conference and 14 verify that they have done so in their respective ENE Conference statements, outlining the 15 substance of their discussions and negotiations. 16 6. Time Allotted 17 The Court generally allots two hours for ENEs. Counsel should be prepared to be 18 succinct and to the point. Requests for additional time must be made in writing in the 19 party’s ENE statement, accompanied by a short explanation. 20 7. New Parties Must Be Notified by Plaintiff’s Counsel 21 Plaintiff’s counsel shall give notice of the ENE Conference to all parties responding 22 to the Complaint after the date of this Notice. 23 8. Requests to Continue an ENE Conference 24 Requests to continue ENE conferences are rarely granted. Counsel seeking to 25 reschedule an ENE must first confer with opposing counsel. The Court will consider 26 formal, written ex parte requests to continue an ENE conference when extraordinary 27 circumstances exist that make a continuance appropriate. In and of itself, having to travel 28 a long distance to appear at the ENE conference is not an extraordinary circumstance. 1 ||Absent extraordinary circumstances, requests for continuances of the ENE 2 ||conference will not be considered unless submitted in writing no less than seven 3 ||calendar days prior to the scheduled conference, and only after conferring with 4 || opposing counsel. 5 Please refer to the undersigned’s Chambers Rules for additional guidance regarding 6 || the areas which must be addressed in the request. 7 The parties shall be prepared to engage in good faith settlement discussions with the 8 ||Court and opposing parties during the ENE Conference. Failure to engage in good faith 9 || settlement discussions may result in the imposition of sanctions. 10 Il. CASE MANAGEMENT CONFERENCE 11 If the case does not settle at the ENE, the parties shall be prepared for a Case 12 ||Management Conference immediately upon completion of the ENE. Accordingly, the 13 || Court issues the following orders: 14 1. The date of initial disclosure pursuant to Rule 26(a)(1)(A)-(D) shall occur before 15 July 23, 2021; and 16 2. A joint discovery plan shall be lodged with Magistrate Judge Gallo on or before 17 August 11, 2021.* 18 Questions regarding this case may be directed to the undersigned’s Research 19 || Attorney at (619) 557-6384. Please consult the undersigned’s Chambers Rules, which are 20 || available on the Court’s website, before contacting chambers with any questions. 21 IT IS SO ORDERED. 22 ||DATED: July 23, 2021 23 | | Se 24 Hon. William V. Gallo 25 United States Magistrate Judge 27 ||* Counsel shall review the undersigned’s Chambers Rules for guidance on completing the 28 proposed discovery plan. Counsel are further advised to consult the Chambers Rules of the District Judge assigned to this case for case timeline preferences, if any.