BRFS INVESTMENTS, INC., a Case No.: 20-CV-239-W-WVG California Corporation, ORDER ON JOINT MOTION FOR Plaintiff, v. CONFERENCE EARLY NEUTRAL EVALUATION CONFERENCE AMGUARD INSURANCE COMPANY, a Pennsylvania Corporation, Defendant. On March 20, 2020, this Court issued an Order setting an Early Neutral Evaluation Conference (“ENE”) and a Case Management Conference (“CMC”) to May 4, 2020 at 2:00 p.m. (Doc. No. 6.) On April 28, 2020, the Parties filed a Joint Motion to Continue Early Neutral Evaluation Conference. (Doc. No. 8.) On April 29, 2020, the Court granted the Parties’ Joint Motion and continued the ENE and CMC to May 22, 2020 at 9:00 a.m. On May 8, 2020, the Parties filed a Joint Motion for Leave to Appear Telephonically or Via Video Conference for purposes of the May 22, 2020 ENE and CMC. (Doc. No. 10.) After reviewing and considering the basis for the Parties’ pending request, the Court hereby GRANTS the Joint Motion and converts the ENE and CMC set for May 22, 2020 at 9:00 a.m. to a video conference, as elaborated below. Rule 16(b) of the Federal Rules of Civil Procedure requires a movant to establish good cause upon seeking modification of the scheduling order. Fed. R. Civ. P. 16(b). This good cause standard is primarily informed by the movant’s diligence in attempting to fully comply with the deadlines set by the Court. Matrix Motor Co. v. Toyota Jidosha Kabushiki Kaisha, 218 F.R.D. 667, 671 (C.D. Cal. 2003). Failure to make the requisite showing terminates the Court’s inquiry into whether it is appropriate to grant the movant’s requested relief from the operative scheduling order. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087–88 (9th Cir. 2002). In their Joint Motion, the Parties aver they remain ready, willing, and able to participate in the May 22, 2020 ENE and CMC as ordered by the Court. (Doc. No. 10, 3:1-5.) Thus, there is no question the Parties have demonstrated the diligence necessary to enable this Court to entertain the Parties’ request to modify the manner in which the ENE and CMC are held. To that end, this Court is acutely aware of the ongoing COVID-19 pandemic and the complications it has brought onto litigants, counsel, courts, and seemingly all other participants in the judicial system. Accordingly, Chief Judge Larry Alan Burns issued Chief Judge Order (“CJO”) No. 181 and thus suspended for 30 days the requirement under Civil Local Rule 16.1(a) that all ENEs be conducted in person. (CJO No. 18 ¶ 9.) On April 15, 2020, Chief Judge Burns issued CJO No. 24,2 which extended CJO No. 18 until May 16, 2020. To date, although CJO No. 24 has not been extended beyond May 16, 2020, the Court appreciates the Parties’ health-related concerns as memorialized in their Joint Motion arising from the requirement to appear in person for the May 22, 2020 ENE and CMC. Accordingly, the Court finds good cause exists to support the Parties’ request for a telephonic or video conference ENE and CMC and hereby ORDERS the Parties, their 1 CJO #18 is available on the Court’s website at: https://www.casd.uscourts.gov /_assets/pdf/rules/Order%20of%20the%20Chief%20Judge%2018.pdf 2 CJO #24 is available on the Court’s website at: https://www.casd.uscourts.gov/_ counsel, and any insurance adjusters to appear via Zoom-based video conference for the ENE and CMC on Friday, May 22, 2020 at 9:00 a.m. To facilitate this modification, IT IS HEREBY ORDERED: 1. The Court will use its official 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.3 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.4 There is a cost-free option for creating a Zoom account. 2. 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. 3. 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 9:00 a.m.. The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin 3 If possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. 4 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- at the Court-scheduled time. 4. 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.5 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 without the Court. 5. No later than Friday, May 15, 2020, counsel for each party shall send an e- mail to the Court at efile_gallo@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.) 6. 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
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BRFS INVESTMENTS, INC., a Case No.: 20-CV-239-W-WVG California Corporation, ORDER ON JOINT MOTION FOR Plaintiff, v. CONFERENCE EARLY NEUTRAL EVALUATION CONFERENCE AMGUARD INSURANCE COMPANY, a Pennsylvania Corporation, Defendant. On March 20, 2020, this Court issued an Order setting an Early Neutral Evaluation Conference (“ENE”) and a Case Management Conference (“CMC”) to May 4, 2020 at 2:00 p.m. (Doc. No. 6.) On April 28, 2020, the Parties filed a Joint Motion to Continue Early Neutral Evaluation Conference. (Doc. No. 8.) On April 29, 2020, the Court granted the Parties’ Joint Motion and continued the ENE and CMC to May 22, 2020 at 9:00 a.m. On May 8, 2020, the Parties filed a Joint Motion for Leave to Appear Telephonically or Via Video Conference for purposes of the May 22, 2020 ENE and CMC. (Doc. No. 10.) After reviewing and considering the basis for the Parties’ pending request, the Court hereby GRANTS the Joint Motion and converts the ENE and CMC set for May 22, 2020 at 9:00 a.m. to a video conference, as elaborated below. Rule 16(b) of the Federal Rules of Civil Procedure requires a movant to establish good cause upon seeking modification of the scheduling order. Fed. R. Civ. P. 16(b). This good cause standard is primarily informed by the movant’s diligence in attempting to fully comply with the deadlines set by the Court. Matrix Motor Co. v. Toyota Jidosha Kabushiki Kaisha, 218 F.R.D. 667, 671 (C.D. Cal. 2003). Failure to make the requisite showing terminates the Court’s inquiry into whether it is appropriate to grant the movant’s requested relief from the operative scheduling order. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087–88 (9th Cir. 2002). In their Joint Motion, the Parties aver they remain ready, willing, and able to participate in the May 22, 2020 ENE and CMC as ordered by the Court. (Doc. No. 10, 3:1-5.) Thus, there is no question the Parties have demonstrated the diligence necessary to enable this Court to entertain the Parties’ request to modify the manner in which the ENE and CMC are held. To that end, this Court is acutely aware of the ongoing COVID-19 pandemic and the complications it has brought onto litigants, counsel, courts, and seemingly all other participants in the judicial system. Accordingly, Chief Judge Larry Alan Burns issued Chief Judge Order (“CJO”) No. 181 and thus suspended for 30 days the requirement under Civil Local Rule 16.1(a) that all ENEs be conducted in person. (CJO No. 18 ¶ 9.) On April 15, 2020, Chief Judge Burns issued CJO No. 24,2 which extended CJO No. 18 until May 16, 2020. To date, although CJO No. 24 has not been extended beyond May 16, 2020, the Court appreciates the Parties’ health-related concerns as memorialized in their Joint Motion arising from the requirement to appear in person for the May 22, 2020 ENE and CMC. Accordingly, the Court finds good cause exists to support the Parties’ request for a telephonic or video conference ENE and CMC and hereby ORDERS the Parties, their 1 CJO #18 is available on the Court’s website at: https://www.casd.uscourts.gov /_assets/pdf/rules/Order%20of%20the%20Chief%20Judge%2018.pdf 2 CJO #24 is available on the Court’s website at: https://www.casd.uscourts.gov/_ counsel, and any insurance adjusters to appear via Zoom-based video conference for the ENE and CMC on Friday, May 22, 2020 at 9:00 a.m. To facilitate this modification, IT IS HEREBY ORDERED: 1. The Court will use its official 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.3 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.4 There is a cost-free option for creating a Zoom account. 2. 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. 3. 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 9:00 a.m.. The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin 3 If possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. 4 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- at the Court-scheduled time. 4. 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.5 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 without the Court. 5. No later than Friday, May 15, 2020, counsel for each party shall send an e- mail to the Court at efile_gallo@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.) 6. 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
5 For more information on what to expect when participating in a Zoom Breakout participant should ensure that their device is plugged in or that a charging cable is readily available during the video conference. 7. If the case does not settle during the ENE, the Court will hold the CMC immediately following the ENE with counsel only. 8. All dates, deadlines, procedures, and requirements set forth in the Court’s Order Setting ENE and CMC (Doc. No. 6) remain in place, except as explicitly modified by this Order. Dated: May 11, 2020 Se WN Esa | Hon. William V. Gallo United States Magistrate Judge