Opinion
No. 2:11-cv-0874 KJN P
01-03-2013
ALFRED OSHUN NUNNERY, Plaintiff, v. J. LUZADA, et al., Defendants.
ORDER
Plaintiff Alfred Oshun Nunnery is a state prisoner, proceeding in forma pauperis and without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds against one defendant, J. Luzada. Both parties have consented to the authority of the undersigned magistrate judge for all purposes. See 28 U.S.C. § 636(c); Local Rule 305(a).
On November 29, 2012, the undersigned directed the parties to inform the court whether an early settlement conference may be helpful in this case. Each party timely filed a confidential statement requesting that an early settlement conference be scheduled before the undersigned. Defendant also requested that the court authorize a limited period of discovery, including an opportunity to depose plaintiff, before scheduling the conference, for the purpose of clarifying and refining pertinent issues.
For good cause shown, the court will allow sufficient time for both parties to conduct limited discovery, including plaintiff's deposition, before convening the settlement conference, which will also be scheduled pursuant to this order. The parties are encouraged to be forthcoming in discovery, with the goal of achieving a settlement in this action, and to be cooperative in achieving the informal resolution of any discovery disputes without seeking court intervention. A separate order and writ of habeas corpus ad testificandum will issue concurrently with this order, to provide for plaintiff's attendance at the settlement conference. The parties will be required to file signed Waivers of Disqualification memorializing their consent to the undersigned presiding over the settlement conference.
In accordance with the above, IT IS HEREBY ORDERED that:
1. This case is set for a settlement conference before the undersigned on Tuesday, April 16, 2013, at 9:00 a.m., at the United States District Court, Eastern District of California, 501 I Street, Sacramento, California 95814, in Courtroom No. 25 (8th Floor).
2. Each party is required to file a signed Waiver of Disqualification (attached), or notice of non-waiver of disqualification, no later than Friday, February 1, 2013. If either party chooses to file a notice of non-waiver of disqualification, a randomly selected Magistrate Judge will conduct the settlement conference on a date and time to be determined by the court.
3. Defendant's lead counsel and a person with full and unlimited authority to negotiate and enter into a binding settlement on defendant's behalf shall attend the settlement conference in person.
The term "full authority to settle" means that the individuals attending the settlement conference must be authorized to fully explore settlement options and to agree at that time to any settlement terms acceptable to the parties. G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989), cited with approval in Official Airline Guides, Inc. v. Goss, 6 F. 3d 1385, 1396 (9th Cir. 1993). The individual with full authority to settle must also have "unfettered discretion and authority" to change the settlement position of the party, if appropriate. Pittman v. Brinker Int'l., Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003), amended on recon. in part, Pitman v. Brinker Int'l, Inc., 2003 WL 23353478 (D. Ariz. 2003). The purpose behind requiring the attendance of a person with full settlement authority is that the parties' view of the case may be altered during the face-to-face conference. Pitman, 216 F.R.D. at 486. An authorization to settle for a limited dollar amount or sum certain can be found not to comply with the requirement of full authority to settle. Nick v. Morgan's Foods, Inc., 270 F. 3d 590, 596-97 (8th Cir. 2001).
4. Those in attendance must be prepared to discuss the claims, defenses and damages. The failure of any counsel, party or authorized person subject to this order to appear in person may result in the imposition of sanctions. In addition, the conference will not proceed and will be reset to another date.
5. The parties are directed to exchange non-confidential settlement conference statements seven days prior to this settlement conference. These statements shall be simultaneously delivered to the Court using the following email address: kjnorders@caed.uscourts.gov. If plaintiff is unable to access the internet, he shall, on or before Friday, April 5, 2013, send his statement to the court by mail, and indicate on the envelope and on the face of the statement that it is a confidential communication to the undersigned. If a party desires to share additional confidential information with the Court, they may do so pursuant to the provisions of Local Rule 270(d) and (e).
SO ORDERED.
____________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
ALFRED OSHUN NUNNERY,
Plaintiff,
vs. J. LUZADA, et al.,
Defendants.
No. 2:11-cv-0874 KJN P
WAIVER OF DISQUALIFICATION
Under Local Rule 270(b) of the Eastern District of California, the parties to this action affirmatively request that Magistrate Judge Kendall J. Newman preside over the settlement conference scheduled for Tuesday, April 16, 2013. Because the parties have also consented to the trial of this action before Magistrate Judge Newman, they hereby waive any claim of disqualification to Magistrate Judge Newman trying the case after presiding over the settlement conference.
____________________________
Signature of Plaintiff
____________________________
Signature of Defendant's Attorney