Opinion
21-cv-1413-MMA-DEB
11-08-2021
CONVOY VILLAGE, LLC, Plaintiff, v. INGOLO, INC., et al., Defendant.
ORDER: (1) GRANTING JOINT MOTION TO EXPEDITE ENE AND CONTINUE DEADLINE FOR DEFENDANT TO RESPOND TO THE FIRST AMENDED COMPLAINT; AND (2) SETTING EARLY NEUTRAL EVALUATION CONFERENCE [DKT. NO. 22]
Honorable Daniel E. Butcher, United States Magistrate Judge.
Before the Court is the parties Joint Motion to Expedite ENE and Continue Deadline for Defendant, Ingolo, Inc. to Respond to the First Amended Complaint. Dkt. No. 22. The parties move to (1) “expedite the Early Neutral Evaluation (“ENE”) such that it can take place within 30 days . . . but not more than 45 days”; and (2) “to continue Ingolo's deadline to respond to Convoy's First Amended Complaint (“FAC”) in this action to 15 days following the ENE's conclusion.” Id. at 2.
Good cause appearing, the Court GRANTS the Motion.
The Court sets an ENE on December 16, 2021 at 1:30 p.m. before Magistrate Judge Daniel E. Butcher. In the event the case does not settle during the ENE, Defendant Ingolo must file a response to Plaintiff's FAC on or before January 4, 2021 .
The following are mandatory guidelines for the parties preparing for the ENE. Absent express permission obtained from this Court, counsel must timely comply with the dates and deadlines herein.
1. Review of Chambers Rules: Counsel must refer to the Civil Local Rules, the undersigned's Chambers Rules for Civil Cases, as well as the Chambers Rules of the assigned District Judge, which are accessible via the Court's website at www.casd.uscourts.gov.
As used herein, references to “counsel” or “attorney(s)” include any party representing himself or herself.
2. Purpose of the ENE: The purpose of the ENE is to permit an informal discussion between the attorneys, parties, and the Magistrate Judge of every aspect of the lawsuit in an effort to achieve an early resolution of the case. Counsel attending the ENE are expected to have a command of the facts and applicable law. Counsel and the parties must come prepared to engage in a detailed discussion of the merits of their respective cases and engage in good faith settlement discussions. All discussions during the ENE are informal, off the record, privileged and confidential. Counsel for any non-English speaking party is responsible for arranging for the appearance of an interpreter at the conference.
3. Full Settlement Authority Is Required: Pursuant to Fed.R.Civ.P. 16(c)(1) and Local Rule 16.1.c.1, all parties, party representatives, including claims adjusters for insured parties, and the principal attorney(s) responsible for the litigation must participate in the ENE. This appearance must be made with full and unlimited authority to negotiate and enter into a binding settlement. In the case of a corporate entity, an authorized representative of the corporation who is not retained outside counsel must be present and must have discretionary authority to commit the company to pay an amount up to the amount of the plaintiff's prayer (excluding punitive damage prayers). The purpose of this requirement is to have representatives present who can settle the case during the course of the conference without consulting a superior.
The attendance requirement includes parties that are indemnified by others. Any deviation from this Order requires prior Court approval.
Full authority to settle means that the individuals at the ENE Conference are authorized to fully explore settlement options and to agree at that time to any settlement terms acceptable to the parties. Heileman Brewing Co., Inc. 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 party. Pitman v. Brinker Int'l, Inc., 216 F.R.D. 481, 485-486 (D. Ariz. 2003). One of the purposes of requiring a person with unlimited settlement authority to attend the conference is that the person's view of the case may be altered during the face-to-face conference. Pitman, 216 F.R.D. at 486. Limited or sum certain authority is not adequate. Nick v. Morgan's Foods, Inc., 270 F.3d 590, 595-597 (8th Cir. 2001).
Counsel for a government entity may be excused from this requirement if the government attorney who participates in the ENE (1) has primary responsibility for handling the case; and (2) may negotiate settlement offers that the attorney is willing to recommend to the government official having ultimate settlement authority.
4. Procedure for Zoom Videoconference Appearance: The Court will use its Zoom video conferencing account to hold the ENE. If you are unfamiliar with Zoom: Zoom is available on computers through a download on the Zoom website (https://zoom.us/meetings) or on mobile devices through the installation of a free app.Joining a Zoom conference does not require creating a Zoom account, but it does require downloading the .exe file (if using a computer) or the app (if using a mobile device). Participants are encouraged to create an account, install Zoom and familiarize themselves with Zoom in advance of the ENE. There is a cost-free option for creating a Zoom account.
Participants are encouraged to use laptops or desktop computers for the video conference, if possible, as mobile devices often offer inferior performance.
For help getting started with Zoom, visit: https://support.zoom.us/hc/en-us/categories/200101697-Getting-Started
Prior to the start of the ENE, the Court will email each participant an invitation to join a Zoom video conference. Participants must join the video conference by following the ZoomGov Meeting hyperlink in the invitation. Participants who do not have Zoom already installed on their device when they click on the ZoomGov Meeting hyperlink will be prompted to download and install Zoom before proceeding . Zoom may then prompt participants to enter the password included in the invitation. All participants will be placed in a waiting room until the ENE begins.
Each participant should plan to join the Zoom video conference at least five minutes before the start of the ENE to ensure that the conference begins on time. The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin at the time scheduled by the Court.
Zoom's functionalities will allow the Court to conduct the ENE as it ordinarily would conduct an in-person one. The Court will divide participants into separate, confidential sessions, which Zoom calls Breakout Rooms. In a Breakout Room, the Court will be able to confidentially and individually communicate with participants. Breakout Rooms will also allow parties and counsel to communicate confidentially outside the presence of the Court.
For more information on what to expect when participating in a Zoom Breakout Room, visit: https://support.zoom.us/hc/en-us/articles/115005769646
No later than December 9, 2021 counsel for each party must send an e-mail to the Court at efilebutcher@casd.uscourts.gov containing the following:
a. The name and title of each participant , including all parties and party representatives with full settlement authority, claims adjusters for insured defendants, and the primary attorney(s) responsible for the litigation;
b. An e-mail address for each participant to receive the Zoom video conference invitation; and
c. A telephone number where each participant may be reached so that, if technical difficulties arise, the Court will be in a position to proceed telephonically instead of by video conference. (If counsel prefers to have all participants of their party on a single conference call, counsel may provide a conference number and appropriate call-in information, including an access code, where all counsel and parties or party representatives for that side may be reached as an alternative to providing individual telephone numbers for each participant.)
Counsel are responsible for ensuring their clients are able to participate in the ENE. All participants must display the same level of professionalism and attention during the ENE as if they were attending in person (e.g., not be driving while speaking to the Court, or otherwise distracted). Because Zoom may quickly deplete the battery of a participant's device, each participant should ensure that their device is plugged in or that a charging cable is readily available during the video conference.
5. Confidential ENE Statements Required: No later than one week before the
ENE, each party must lodge a Confidential ENE Statement by email to efilebutcher@casd.uscourts.gov. The ENE statement must not exceed seven (7) pages, excluding exhibits. If exhibits are attached, the parties are encouraged to highlight the relevant portions.
The Court does not require ENE Statements to be served on other parties; however, the parties may elect to share their ENE Statements at their discretion. These statements are not to be filed on the CM/ECF system.
All confidential ENE Statements must include:
a. A brief description of the case and the claims and defenses asserted;
b. The party's position on liability and damages supported by relevant facts and controlling legal authority;
c. For plaintiff(s) , a specific and current settlement demand addressing all relief sought, and the specific basis for that relief; and, for defendant(s) , a specific and current offer and the bases for that offer (Note: a general statement that a party will “negotiate in good faith, ” “offer a nominal cash sum, ” or “be prepared to make a demand or offer at the conference” is not a specific demand or offer. If a specific demand for settlement cannot be made at the ENE, state the reasons why and explain what additional information is required to make a settlement demand.) ;
d. A brief description of any previous settlement negotiations or mediation efforts;
e. The names of attorney and non-attorney conference attendees who will attend the ENE, including the name(s) and title(s)/position(s) of the party/party representative(s) who will attend and have settlement authority at the conference; and f. The parties are also encouraged to include as an attachment to the ENE Statement a chronology, setting forth a timeline of the factual events that are the basis for the claims and defenses asserted in this litigation. If submitted, the chronology should be in a chart or column format with the column headings “DATE” and “EVENT.” The chronology is not included in the page limits applicable to ENE Statements and exhibits.
6. Requests to Continue an ENE: Requests to continue the ENE are strongly disfavored. A request for continuance may be initiated by counsel placing a joint call to the Court's Chambers. Any request for a continuance must be made as soon as counsel is aware of the circumstances that warrant rescheduling the conference. Requests to continue the ENE based on a pre-existing scheduling conflict must be made within 10 days of the issuance of this Order. When requesting a continuance of the ENE, counsel should keep in mind that Civil Local Rule 16.1.c.1. requires the ENE take place within 45 days of the filing of the first Answer.
7. Settlement Prior to the ENE: The Court encourages the parties to work on settling the matter in advance of the ENE. In the event that the parties resolve the matter prior to the ENE, counsel must promptly file a Joint Motion for Dismissal or a Notice of Settlement.
8. New Parties Must Be Notified by Plaintiffs Counsel: Plaintiffs counsel must give notice of the ENE and provide a copy of this Order to parties responding to the complaint after the date of this notice.
Questions regarding this case or the mandatory guidelines set forth herein may be directed to the Magistrate Judge's law clerks at (619) 446-3704.
A Notice of Right to Consent to Trial Before a United States Magistrate Judge is attached for your information.
IT IS SO ORDERED.
NOTICE OF RIGHT TO CONSENT TO TRIAL BEFORE A UNITED STATES MAGISTRATE JUDGE
IN ACCORDANCE WITH THE PROVISIONS OF 28 U.S.C. § 636(c), YOU ARE HEREBY NOTIFIED THAT A U.S. MAGISTRATE JUDGE OF THIS DISTRICT MAY, UPON THE CONSENT OF ALL PARTIES, ON FORM 1A AVAILABLE IN THE CLERK'S OFFICE, CONDUCT ANY OR ALL PROCEEDINGS, INCLUDING A JURY OR NON-JURY TRIAL, AND ORDER THE ENTRY OF A FINAL JUDGMENT. COUNSEL FOR THE PLAINTIFF IS RESPONSIBLE FOR OBTAINING THE CONSENT OF ALL PARTIES, SHOULD THEY DESIRE TO CONSENT.
YOU SHOULD BE AWARE THAT YOUR DECISION TO CONSENT OR NOT TO CONSENT IS ENTIRELY VOLUNTARY. ONLY IF ALL PARTIES CONSENT WILL THE JUDGE OR MAGISTRATE JUDGE TO WHOM THE CASE HAS BEEN ASSIGNED BE INFORMED OF YOUR DECISION.
JUDGMENTS OF THE U.S. MAGISTRATE JUDGES ARE APPEALABLE TO THE U.S. COURT OF APPEALS IN ACCORDANCE WITH THIS STATUTE AND THE FEDERAL RULES OF APPELLATE PROCEDURE.