Avalyn Pharma, Inc. v. Vincent

Opinion

1 2 3 4 5 6 7 10 11 AVALYN PHARMA, INC., Case No.: 20cv2267-RSH(KSC)

12 Plaintiff, NOTICE AND ORDER MODIFYING 13 v. MANDATORY SETTLEMENT CONFERENCE TO BE HELD VIA 14 RICHARD G. VINCENT, Seller ZOOM AND ISSUING UPDATED Representative,

16 Defendant.

18 A Mandatory Settlement Conference (“MSC”) is scheduled in this matter for 19 August 2, 2022 at 9:30 a.m. before Magistrate Judge Karen S. Crawford. Although the 20 Court typically requires personal attendance of all participants, due to the COVID-19 21 public emergency the MSC will be held by video conference. If circumstances relating to 22 the COVID-19 public emergency improve before the date of the MSC, the Court will notify 23 the parties that it will conduct the conference in person. 24 The following are mandatory guidelines for the parties preparing for the MSC. 25 Absent express permission obtained from this Court, and notwithstanding the pendency 26 of any motion, counsel shall timely comply with the dates and deadlines herein. 27 1. Full Settlement Authority Is Required: Pursuant to Civil Local Rule 28 16.1.c.1, all parties, party representatives (including claims adjusters for insured parties), 1 and the principal attorney(s) responsible for the litigation must participate in the MSC. 2 This appearance must be made with full and unlimited authority to negotiate and enter into 3 a binding settlement.2 In the case of a corporate entity, an authorized representative of the 4 corporation who is not retained outside counsel must be present and must have 5 discretionary authority to commit the company to pay an amount up to the amount of the 6 plaintiff’s prayer (excluding punitive damage prayers). The purpose of this requirement is 7 to have representatives present who can settle the case during the course of the conference 8 without consulting a superior. 9 Counsel for a government entity may be excused from this requirement so long as 10 the government attorney who participates in the MSC (1) has primary responsibility for 11 handling the case; and (2) may negotiate settlement offers that the attorney is willing to 12 recommend to the government official having ultimate settlement authority. 13 2. Procedure for Zoom Videoconference Appearance: The Court will use its 14 Zoom video conferencing account to host the MSC. If you are unfamiliar with Zoom: 15 Zoom is available on computers through a download on the Zoom website 16 17 18 19 1 The attendance requirement includes parties that are indemnified by others. Any 20 deviation from this Order requires prior Court approval. 21 2 Full authority to settle means that the individuals attending the MSC are authorized 22 to fully explore settlement options and to agree at that time to any settlement terms 23 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 24 change the settlement position of a party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 25 485-486 (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 26 altered during the face-to-face conference. Pitman, 216 F.R.D. at 486. Limited or sum 27 certain authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-597 (8th Cir. 2001). 28 1 (https://zoom.us/meetings) or on mobile devices through the installation of a free app. 2 Joining a Zoom conference does not require creating a Zoom account, but it does require 3 downloading the .exe file (if using a computer) or the app (if using a mobile device). 4 Participants are encouraged to create an account, install Zoom, and familiarize themselves 5 with Zoom in advance of the MSC.4 There is a cost-free option for creating a Zoom 6 account. 7 Before the start of the MSC, the Court will email each participant an invitation to 8 join a Zoom video conference. Participants shall join the video conference by following 9 the ZoomGov Meeting hyperlink in the invitation. Participants who do not have Zoom 10 already installed on their device when they click on the ZoomGov Meeting hyperlink will 11 be prompted to download and install Zoom before proceeding. Zoom may then prompt 12 participants to enter the password included in the invitation. All participants will be placed 13 in a waiting room until the MSC begins. 14 Each participant should plan to join the Zoom video conference at least five minutes 15 before the start of the MSC to ensure that the conference begins on time. The Zoom e- 16 mail invitation may indicate an earlier start time, but the MSC will begin at the time 17 scheduled by the Court. 18 Zoom’s functionalities will allow the Court to conduct the MSC as it ordinarily 19 would conduct an in-person one. The Court will divide participants into separate, 20 confidential sessions, which Zoom calls Breakout Rooms.5 In a Breakout Room, the Court 21 will be able to communicate with participants from a single party in confidence. Breakout 22

23 24 3 Participants are encouraged to use laptops or desktop computers for the video conference, if possible, as mobile devices often offer inferior performance. 25

26 4 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- us/categories/200101697-Getting-Started. 27

5 For more information on what to expect when participating in a Zoom Breakout 28 1 Rooms will also allow parties and counsel to communicate confidentially outside the 2 presence of the Court. 3 No later than July 26, 2022 counsel for each party shall send an e-mail to the Court 4 at efile_crawford@casd.uscourts.gov containing the following: 5 a. The name and title of each participant, including all parties and party 6 representatives with full settlement authority, claims adjusters for insured 7 defendants, and the primary attorney(s) responsible for the litigation; 8 b. An e-mail address for each participant to receive the Zoom video conference 9 invitation; and 10 c. A telephone number where each participant may be reached so that if 11 technical difficulties arise, the Court will be in a position to proceed 12 telephonically instead of by video conference. (If counsel prefers to have all 13 participants of their party on a single conference call, counsel may provide a 14 conference number and appropriate call-in information, including an access 15 code, where all counsel and parties or party representatives for that side may 16 be reached as an alternative to providing individual telephone numbers for 17 each participant.) 18 Counsel must be responsible for ensuring their clients are able to participate in the 19 MSC. All participants shall display the same level of professionalism during the MSC and 20 be prepared to devote their full attention to the MSC as if they were attending in person 21 (e.g., participants may not be driving or otherwise distracted while speaking to the Court). 22 Because Zoom may quickly deplete the battery of a participant’s device, each participant 23 should ensure that their device is plugged in or that a charging cable is readily available 24 during the video conference. 25 3. Confidential MSC Statements Required: No later than one week before 26 the MSC, each party shall lodge a Confidential MSC Statement by email to 27 efile_crawford@casd.uscourts.gov. The MSC statement shall not exceed five (5) pages, 28 1 excluding exhibits (and shall not exceed 20 pages including exhibits). These statements 2 are not to be filed on the CM/ECF system or served on other parties. 3 All confidential MSC Statements must include: 4 a. A brief description of the case and the claims and defenses asserted; 5 b. The party's position on liability and damages supported by relevant facts 6 and controlling legal authority; 7 c. A specific and current demand or offer for addressing all relief or remedies 8 sought, and the specific basis for that relief. If a specific demand or offer 9 for settlement cannot be made at the MSC, the party must state the reasons 10 why and explain what additional information is required to make a 11 settlement demand or offer (Note: A general statement that a party will 12 “negotiate in good faith,” “offer a nominal cash sum,” or “be prepared 13 to make a demand or offer at the conference” is not a specific demand 14 or offer.); 15 d. A brief description of any previous settlement negotiations or mediation 16 efforts; and 17 e. The names of attorney and non-attorney conference attendees who will 18 attend the MSC, including the name(s) and title(s)/position(s) of the 19 party/party representative(s) who will attend and have settlement authority 20 at the conference. 21 6. Cases Involving a Demand for Attorney’s Fees: If a demand is made that 22 includes attorney’s fees and/or costs, counsel for the demanding party shall be able to 23 provide, upon request, redacted billing records for opposing counsel’s review, as well as 24 an unredacted copy for the Court’s in camera review. 25 8. Requests to Continue an MSC: Any request to continue the MSC shall be 26 made by Joint Motion, even if the parties are not in agreement, no less than seven (7) 27 calendar days before the affected date. The request shall state: 28 / / / l a. The original deadline or date; 2 b. The number of previous requests for continuance; 3 C. A showing of good cause for the request; 4 d. Whether the request 1s opposed and why; and, 5 e. Whether the requested continuance will affect other case management 6 dates. 7 9. Settlement Before the MSC: The Court encourages the parties to work on 8 || settling the matter in advance of the MSC. Ifthe parties resolve the matter before the MSC, 9 |}counsel must promptly file a Joint Motion for Dismissal or a Notice of Settlement. 10 Questions regarding this case or the mandatory guidelines set forth herein may be 11 || directed to the Magistrate Judge’s law clerks at (619) 446-3964. 12 A Notice of Right to Consent to Trial Before a United States Magistrate Judge is 13 || attached for your information. 15 ||Dated: July 8, 2022 A /; ) 16 WU LA _———_ 7 Hori. Karen S. Crawford United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28

3 4 IN ACCORDANCE WITH THE PROVISIONS OF 28 U.S.C. § 636(c), YOU 5 ARE HEREBY NOTIFIED THAT A U.S. MAGISTRATE JUDGE OF THIS DISTRICT 6 MAY, UPON THE CONSENT OF ALL PARTIES, ON FORM 1A AVAILABLE IN 7 THE CLERK’S OFFICE, CONDUCT ANY OR ALL PROCEEDINGS, INCLUDING A 9 JUDGMENT. COUNSEL FOR THE PLAINTIFF SHALL BE RESPONSIBLE FOR 10 OBTAINING THE CONSENT OF ALL PARTIES, SHOULD THEY DESIRE TO 12 YOU SHOULD BE AWARE THAT YOUR DECISION TO CONSENT OR NOT 13 TO CONSENT IS ENTIRELY VOLUNTARY. ONLY IF ALL PARTIES CONSENT 14 WILL THE JUDGE OR MAGISTRATE JUDGE TO WHOM THE CASE HAS BEEN 16 JUDGMENTS OF THE U.S. MAGISTRATE JUDGES ARE APPEALABLE TO 17 THE U.S. COURT OF APPEALS IN ACCORDANCE WITH THIS STATUTE AND 19 20 21 22 23 24 25 26 27 28