Opinion
21-cv-1769-GPC-RBM
10-29-2021
ANALIA OLIVAS, a minor child, by and I through her Guardian ad Litem, ALBERTO OLIVAS, Plaintiff, v. LOWE'S COMPANIES, INC., et al., Defendants.
ORDER GRANTING JOINT MOTION TO CONTINUE EARLY NEUTRAL EVALUATION CONFERENCE AND RULE 26 COMPLIANCE AND CASE MANAGEMENT CONFERENCE
[DOC. 9]
HON. RUTH BERMUDEZ MONTEGRO, UNITED STATES DISTRICT JUDGE
I
On October 28, 2021, Plaintiff Analia Olivas, a minor child by and through her Guardian ad Litem, Alberto Olivas ("Plaintiff) and Defendant Lowe's Companies, Inc. ("Defendant") filed a joint motion to continue early neutral evaluation conference and scheduling conference ("Joint Motion"). (Doc. 9.) The parties seek to continue the November 22, 2021 early neutral evaluation conference ("ENE") and case management conference ("CMC") to a date after December 1, 2021 as defense counsel and Defendant's primary representative will be unavailable on November 22, 2021 due to vacation plans and the Thanksgiving holiday. (Id. at 2.)
The undersigned's October 21, 2021 order set the ENE on November 22, 2021 and the deadline to lodge confidential ENE statements on November 10, 2021. (Doc. 7 at 3.)
A scheduling order may be modified only upon a showing of good cause and with the judge's consent. FED. R. Civ. P. 16(b)(4); see, e.g., Johnson v. Mammoth Recreations, ] line., 975 F.2d 604, 609 (9th Cir. 1992) (stating, "the focus of [the good cause] inquiry is upon the moving party's reasons for seeking modification.")
Here, the undersigned finds good cause to vacate the current ENE date and to grant a continuance, and thus the Joint Motion is GRANTED. Considering the 45-day timeline to convene the ENE as set forth in Civil Local Rule 16.1(c), FURTHER REQUESTS TO CONTINUE THE ENE AND CMC WILL NOT BE GRANTED ABSENT EXTRAORDINARY GOOD CAUSE. The undersigned's October 21, 2021 order is amended as follows:
IT IS HEREBY ORDERED that an Early Neutral Evaluation Conference of your case will be held on December 13, 2021, at 1:30 p.m. before United States Magistrate Judge Ruth Bermudez Montenegro of the Southern District of California, United States Courthouse, 2003 W. Adams Ave., El Centro, CA 92243. In the event the case does not settle at the ENE, a Case Management Conference pursuant to Fed. R. .Civ. P. 16(b) is set for December 13, 2021. and will be held at the conclusion of the ENE. Although the Court typically requires personal attendance of all parties, party representatives, including claims adjusters for insured parties,, and primary attorney(s) responsible for the litigation, due to the COVID-19 public emergency the ENE and CMC shall convene through the Zoom video conferencing platform, as explained below. If circumstances relating to the COVID-19 public emergency improve prior to the scheduled date, the Court will notify the parties that it will conduct the conference in person.
The following are mandatory directions for the parties preparing for the ENE. Absent express permission from this Court, and notwithstanding the pendency of any motion, counsel shall timely comply with the dates and deadlines ordered herein.
1. Purpose of Conference: The purpose of the ENE is to permit an informal discussion between the attorneys, parties, and the settlement judge of every aspect of the lawsuit in an effort to achieve an early resolution of the case. All ENE discussions will be informal, off the record, privileged, and confidential. Counsel for non-English speaking parties is responsible for arranging for the appearance of an interpreter at the ENE.
2. Personal Appearance of Parties Required: All parties, adjusters for insured defendants, and other representatives of a party having full settlement authority as explained below, and the principal attorneys responsible for the litigation, must be present and legally and factually prepared to discuss settlement of the case. Counsel appearing without their clients (whether or not counsel has been given settlement authority) will be cause for immediate imposition of sanctions and may result in immediate termination of the ENE. If each of the principal attorneys responsible for the litigation is not listed on the docket as an "ATTORNEY TO BE NOTICED," then they each shall enter their appearance on the docket as soon as practicable, but no later than ten calendar days prior to the ENE.
Unless extraordinary circumstances exist, persons required to attend the ENE under this Order will not be excused from attendance. Requests for excuse from attendance for extraordinary circumstances shall be filed as a motion at least ten calendar days before the ENE. Failure to appear at the ENE will be grounds for sanctions.
3. Full Settlement Authority Required: In addition to counsel who will try the case, a party or party representative with full settlement authority must be present for the ENE. In the case of an entity, an authorized representative of the entity other than retained outside counsel must be present and must have discretionary authority to commit the entity to pay an amount up to the amount of Plaintiff s prayer (excluding punitive damages prayers). The purpose of this requirement is to have representatives present who can settle the case during the ENE without consulting a superior.
Full settlement authority means that the individuals at the settlement conference must be authorized to explore settlement options fully and to agree at that time to any settlement terms 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 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 view of the case may be altered during the face-to-face conference. Pitman, 216 F.R.D. at 486. A limited or a sum certain of authority is not adequate. See Nick v. Morgan's Foods, Inc., 270 F.3d 590, 595-97 (8th Cir.2001).
4. ENE Statements Required: On or before December 1, 2021, Plaintiff and Defendant shall lodge statements of five pages or less directly to Magistrate Judge Montenegro's chambers outlining the nature of the case, the claims, the defenses, and the parties' positions regarding settlement of the case. The settlement position must include a specific and current demand or offer addressing all relief or remedies sought. If a specific demand or offer cannot be made at the time the brief is submitted, then the reasons therefore must be stated along with a statement as to when the party will be in a position to state a demand or offer. A general statement that a party will "negotiate in good faith," "offer a nominal cash sum," or "be prepared to make an offer at the conference" is not a specific demand or offer. The statement shall also list all attorney and non-attorney conference attendees for that side, 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.
ENE statements shall be lodged via email at efilemontenegro@casd.uscourts.gov. If exhibits are attached and the total submission amounts to more than twenty pages, a hard copy must also be delivered directly to chambers. Whether these statements are submitted confidentially or whether they are served on opposing counsel is within the parties' discretion. Statements of more than five pages will not be considered.
5. Submission of Magistrate Judge Consent Form: No later than November 10, 2021, if Defendants consent to the reference to a magistrate judge, Defendants shall provide Plaintiff and/or Plaintiffs counsel with an executed copy of the attached consent form, titled Notice, Consent, and Reference of a Civil Action to a Magistrate Judge. Under Civil Local Rule 73.1, if (and only if) all parties have consented to the reference to a magistrate judge, then Plaintiff shall file the consent form(s) in paper format at the Clerk's Office by November 17, 2021. If the paper format filing reflects consent by ail parties, then the form(s) will be forwarded to the assigned district judge for approval. The consent form(s) should not be filed with the Court electronically through its Case Management/Electronic Case Filing (CM/ECF) system. No. consent form will be made available, nor will its contents be made known to any judicial officer, unless all parties have consented to the reference to a magistrate judge. The parties are free to withhold consent without adverse substantive consequences. Questions related to the consent form(s) should only be directed to the Clerk's Office at 619-557-5600. Please do not call chambers' staff with questions related to the consent form(s).
6. New Parties Must Be Notified by Plaintiffs Counsel: Plaintiffs counsel shall give notice of the ENE and this Order to parties responding to the Complaint after the date of this notice.
7. Appearing via Zoom Video Conference Platform for ENE Conference
a. The Court will use its official Zoom videoconferencing 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.
If possible, participants are encouraged to use laptops or desktop computers for the video conference, 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.
b. Prior to the start of the ENE, the Court will e-mail each ENE participant an invitation to join a Zoom video conference. Again, if possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. Participants shall 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.
c. Each participant should plan to join the Zoom video conference at least five minutes before the start of the ENE to ensure that the ENE begins promptly at 1:30 p.m. The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin at the Court scheduled time.
d. Zoom's functionalities will allow the Court to conduct the ENE as it ordinarily would conduct an in-person ENE. That is, the Court will begin the ENE with all participants joined together in a main session. After an initial discussion in the main session, the Court will divide participants into separate, confidential sessions, which Zoom calls Breakout Rooms. In a Breakout Room, the Court will be able to communicate with participants from a single party in confidence. Breakout Rooms will also allow parties and counsel to communicate confidentially outside of the Court's presence. e. No. later than December 6, 2021, counsel for each party shall send an e-mail to the Court at efilemontenegro@casd.uscourts.gov containing the following:
For more information on what to expect when participating in a Zoom Breakout Room, visit: https://support.zoom.us/hc/en-us/articles/l 15005769646.
i. The name and title of each participant, including all parties and party representatives with full settlement authority, claims adjusters for insured defendants, and primary attorney(s) responsible for litigation;
ii. An e-mail address for each participant to receive the Zoom video conference invitation; and
iii. A telephone number where each participant may be reached so that if technical difficulties arise with Zoom, the Court will be able to proceed telephonically. (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.)
All participants shall display the same level of professionalism during the ENE and be prepared to devote their full attention to the ENE as if they were attending in person. 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.
8. Case Management under the Amended Federal Rules: The parties are ordered to comply with Fed.R.Civ.P. 26 and proceed with the initial disclosure process as follows:
a. The Rule 26(f) conference shall be completed on or before November 10, 2021;
b. The date of initial disclosure pursuant to Rule 26(a)(1)(A)-(D) shall occur on or before December 1, 2021;
c. A Joint Discovery Plan ("Plan") shall be filed on the CM/ECF system as well as lodged with Magistrate Judge Montenegro by emailing the Plan to efilejiiontenegro@casd.uscourts.gov, on or before December 1, 2021. The Plan must be one document and must explicitly cover the parties' views and proposals for each item identified in Fed.R.Civ.P. 26(f)(3). The parties should consult both Judge Montenegro's and the assigned District Judge's Civil Chambers Rules in drafting their Plan. A courtesy paper copy of the Plan shall be delivered to Judge Montenegro's Chambers if the Plan, with its attachments, exceeds twenty pages.
9. Requests to Continue or Reschedule an ENE: Civil Local Rule 16.1(c) requires an ENE take place within 45 days of the filing of the first Answer. Requests to continue ENE are rarely granted. But the Court will consider formal, filed ex parte or joint motions to continue an ENE when extraordinary circumstances exist making a continuance appropriate. Absent extraordinary circumstances, requests for continuances will not be considered unless filed no less than ten calendar days before the scheduled conference.
10. Settlement Prior to ENE: It is expected that before the ENE, the parties will have exchanged good-faith settlement offers, including the basis for their positions, no later than December 1, 2021. If settlement is not achieved, Counsel shall be prepared to identify and discuss the impasses and barriers to settlement at the ENE. In the event the parties resolve the matter before the day of the ENE, the following procedures must be followed before the Court will vacate the ENE and excuse the parties from appearing:
a. The parties may file a Joint Motion to Dismiss and separately lodge by email a proposed order to the assigned District Judge. If a Joint Motion to Dismiss is filed, the Court will vacate the ENE. The parties are encouraged to contact Judge Montenegro's Chambers by telephone to notify the Court of their pending Joint Motion;
b. If the parties settle more than twenty-four hours before the ENE but are not able to file a Joint Motion to Dismiss, they must file a Notice of Settlement containing the electronic signatures of counsel for all settling parties and identifying a date by which the Joint Motion to Dismiss will be filed. The parties are encouraged to contact Judge Montenegro's Chambers by telephone to notify the Court of their filed Notice of Settlement;
c. If the parties settle less than 24 hours before the ENE, counsel for the settling parties must JOINTLY call chambers and inform the Court of the settlement and receive Court permission to not appear at the ENE.
See Electronic Case Filing Administrative Policies and Procedures Manual, United States District Court for the Southern District of California § 2(h), for the chambers' official email address and procedures on emailing proposed orders.
After reviewing Judge Montenegro's Civil Chambers Rules, appropriate questions regarding this case or the mandatory directions set forth herein may be addressed through a joint call by the parties to Judge Montenegro's law clerks at (760) 339-4250. For additional information, please see Judge Montenegro's Civil Chambers Rules.
IT IS SO ORDERED
NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE
Notice of a magistrate judge's availability. A United States magistrate judge of this court is available to conduct all proceedings in this civil action (including a jury or nonjury trial) and to order the entry of a final judgment. The judgment may then be appealed directly to the United States court of appeals like any other judgment of this court. A magistrate judge may exercise this authority only if all parties voluntarily consent.
You may consent to have your case referred to a magistrate judge, or you may withhold your consent without adverse substantive consequences. The name of any party withholding consent will not be revealed to any judge who may otherwise be involved with your case.
Consent to a magistrate judge's authority. The following parties □ Consent / DDo Not Consent*
to have a United States magistrate judge conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings.
REFERENCE ORDER
IT IS ORDERED: This case is referred to United States Magistrate Judge Ruth B. Montenegro to conduct all proceedings and order entry of a final judgment in accordance with 28 U.S.C. § 636(c), FED. R. CIV. P. 73, and CivLR 73.1.
* Pursuant to Civil Local Rule 73.1, if (and only if) all parties have consented to the reference to a magistrate judge, then Plaintiff shall file the consent form(s) in paper format at the Clerk's Office.