2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AMADOU DIAKITE, Case No.: 19cv1341-DMS(MSB)
12 Plaintiff, ORDER: 13 v. (1) GRANTING JOINT MOTION TO 14 M. POLADIAN, et al., MODIFY SCHEDULING ORDER 15 Defendants. [ECF NO. 68]
16 AND 17 (2) ISSUING AMENDED SCHEDULING 18 ORDER REGULATING DISCOVERY 19 AND OTHER PRE-TRIAL PROCEEDINGS 20 21 On January 29, 2021, the parties filed a “Joint Motion to Modify Scheduling 22 Order.” (ECF No. 68.) They ask the Court to continue their deadlines to bring a motion 23 to compel and the deadline for filing pretrial motions by approximately thirty days. (Id. 24 at 1-2.) In support, the parties state that Plaintiff is housed in Administrative 25 Segregation, has minimal library access, and is scheduled to be transferred to a different 26 prison. (Id. at 1.) They further assert that during the transfer, Plaintiff would not have 27 access to his legal materials. (Id.) The parties contend that the requested continuance 2 motions. (Id. at 1-2.) 3 Having considered the joint motion and finding good cause, the Court GRANTS 4 the motion. After consulting with the chambers of Chief United States District Judge 5 Dana M. Sabraw, the Court modifies its Scheduling Order Regulating Discovery and 6 Other Pretrial Proceedings as follows: 7 1. A telephonic Case Management Conference is set for February 25, 2021, at 8 2:30 p.m. Defense counsel is to arrange and initiate the conference call. The telephone 9 number for Judge Berg’s chambers is (619) 557-6632. 10 2. Either party may bring a motion to compel, if any, by March 16, 2021. 11 3. All pretrial motions must be filed by April 21, 2021. Counsel for the moving 12 party must obtain a motion hearing date from the law clerk of the judge who will hear 13 the motion. The period of time between the date you request a motion date and the 14 hearing date may vary from one district judge to another. Please plan accordingly. 15 Failure to make a timely request for a motion date may result in the motion not being 16 heard. Motions in limine are to be filed as directed in the Local Rules, or as otherwise 17 set by the district judge. 18 4. A Mandatory Settlement Conference shall be conducted on March 15, 19 2021, at 9:30 a.m., in the chambers of Magistrate Judge Michael S. Berg located at 221 20 West Broadway, second floor, San Diego, CA 92101. All discussions at the Mandatory 21 Settlement Conference will be informal, off the record, privileged, and confidential. 22 Counsel for any non-English speaking party is responsible for arranging for the 23 appearance of an interpreter at the conference. 24 a. Personal Appearance of Parties Required: All named parties, party 25 representatives, including claims adjusters for insured defendants, as well as the 26 principal attorney(s) responsible for the litigation, must be present in person and legally 27 and factually prepared to discuss and resolve the case. Counsel appearing without their 2 the conference. 3 If Plaintiff is incarcerated in a penal institution or other facility, Plaintiff’s presence 4 is not required at the Mandatory Settlement Conference and Plaintiff may appear by 5 video conference. In that case, defense counsel is to coordinate Plaintiff’s appearance 6 by video conference and provide contact information for the person facilitating the 7 appearance at the prison at least two weeks in advance of the Mandatory Settlement 8 Conference. 9 b. Full Settlement Authority Required: A party or party representative 10 with full settlement authority1 must be present at the conference. Retained outside 11 corporate counsel shall not appear on behalf of a corporation as the party 12 representative who has the authority to negotiate and enter into a settlement. A 13 government entity may be excused from this requirement so long as the government 14 attorney who attends the Mandatory Settlement Conference has (1) primary 15 responsibility for handling the case, and (2) authority to negotiate and recommend 16 settlement offers to the government official(s) having ultimate settlement authority. 17 c. Confidential Settlement Statements Required: On or before 18 March 8, 2021, the parties shall submit directly to Magistrate Judge Berg’s chambers 19 (via hand delivery or by e-mail to the Court at efile_berg@casd.uscourts.gov), 20 confidential settlement statements. The statements are limited to ten (10) pages, plus 21 an additional ten (10) pages of exhibits. Each party’s settlement statement must outline 22
23 1 “Full settlement authority” means that the individuals at the settlement conference must be 24 authorized to fully explore settlement options and to agree at that time to any settlement terms 25 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 26 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 27 view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum 2 (3) position regarding settlement of the case with a specific demand/offer for 3 settlement, and (4) any previous settlement negotiations or mediation efforts. The 4 Mandatory Settlement Conference statement must not merely repeat what was 5 contained in the Early Neutral Evaluation conference brief or any earlier settlement 6 brief. The settlement statement must specifically identify what the discovery process 7 revealed and the effect that the evidence has on the issues in the case. To the extent 8 specific discovery responses, portions of deposition testimony, or expert reports are 9 pertinent to the Court’s evaluation of the matter, these documents must be attached as 10 exhibits. Evidence supporting or refuting either party’s claim for damages must also be 11 identified and included as an exhibit. 12 If a specific demand or offer cannot be made at the time the settlement 13 statement is submitted, then the reasons as to why a demand or offer cannot be made 14 must be stated. Further, the party must explain when they will be in a position to state 15 a demand or offer. General statements such as a party will “negotiate in good faith” is 16 not a specific demand or offer. The settlement statement should be submitted 17 confidentially and need not be shared with other parties. 18 d. Requests to Continue a Mandatory Settlement Conference: Any 19 request to continue the Mandatory Settlement Conference, or request for relief from 20 any of the provisions or requirements of this Order, must be sought by a written 21 application. Absent good cause, requests for continuances will not be considered 22 unless submitted in writing no fewer than seven (7) calendar days prior to the 23 scheduled conference. 24 If the case is settled in its entirety before the scheduled date of the conference, 25 counsel and any unrepresented parties must still appear in person, unless a written 26 joint notice confirming the complete settlement of the case is filed no fewer than 27 twenty-four (24) hours before the scheduled conference. 2 any other action required by Local Rule 16.1(f)(2) by July 30, 2021. 3 6. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 4 Civ. P. 26(a)(3) by July 30, 2021. Failure to comply with these disclosure requirements 5 could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 37. 6 7. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by 7 August 6, 2021.
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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AMADOU DIAKITE, Case No.: 19cv1341-DMS(MSB)
12 Plaintiff, ORDER: 13 v. (1) GRANTING JOINT MOTION TO 14 M. POLADIAN, et al., MODIFY SCHEDULING ORDER 15 Defendants. [ECF NO. 68]
16 AND 17 (2) ISSUING AMENDED SCHEDULING 18 ORDER REGULATING DISCOVERY 19 AND OTHER PRE-TRIAL PROCEEDINGS 20 21 On January 29, 2021, the parties filed a “Joint Motion to Modify Scheduling 22 Order.” (ECF No. 68.) They ask the Court to continue their deadlines to bring a motion 23 to compel and the deadline for filing pretrial motions by approximately thirty days. (Id. 24 at 1-2.) In support, the parties state that Plaintiff is housed in Administrative 25 Segregation, has minimal library access, and is scheduled to be transferred to a different 26 prison. (Id. at 1.) They further assert that during the transfer, Plaintiff would not have 27 access to his legal materials. (Id.) The parties contend that the requested continuance 2 motions. (Id. at 1-2.) 3 Having considered the joint motion and finding good cause, the Court GRANTS 4 the motion. After consulting with the chambers of Chief United States District Judge 5 Dana M. Sabraw, the Court modifies its Scheduling Order Regulating Discovery and 6 Other Pretrial Proceedings as follows: 7 1. A telephonic Case Management Conference is set for February 25, 2021, at 8 2:30 p.m. Defense counsel is to arrange and initiate the conference call. The telephone 9 number for Judge Berg’s chambers is (619) 557-6632. 10 2. Either party may bring a motion to compel, if any, by March 16, 2021. 11 3. All pretrial motions must be filed by April 21, 2021. Counsel for the moving 12 party must obtain a motion hearing date from the law clerk of the judge who will hear 13 the motion. The period of time between the date you request a motion date and the 14 hearing date may vary from one district judge to another. Please plan accordingly. 15 Failure to make a timely request for a motion date may result in the motion not being 16 heard. Motions in limine are to be filed as directed in the Local Rules, or as otherwise 17 set by the district judge. 18 4. A Mandatory Settlement Conference shall be conducted on March 15, 19 2021, at 9:30 a.m., in the chambers of Magistrate Judge Michael S. Berg located at 221 20 West Broadway, second floor, San Diego, CA 92101. All discussions at the Mandatory 21 Settlement Conference will be informal, off the record, privileged, and confidential. 22 Counsel for any non-English speaking party is responsible for arranging for the 23 appearance of an interpreter at the conference. 24 a. Personal Appearance of Parties Required: All named parties, party 25 representatives, including claims adjusters for insured defendants, as well as the 26 principal attorney(s) responsible for the litigation, must be present in person and legally 27 and factually prepared to discuss and resolve the case. Counsel appearing without their 2 the conference. 3 If Plaintiff is incarcerated in a penal institution or other facility, Plaintiff’s presence 4 is not required at the Mandatory Settlement Conference and Plaintiff may appear by 5 video conference. In that case, defense counsel is to coordinate Plaintiff’s appearance 6 by video conference and provide contact information for the person facilitating the 7 appearance at the prison at least two weeks in advance of the Mandatory Settlement 8 Conference. 9 b. Full Settlement Authority Required: A party or party representative 10 with full settlement authority1 must be present at the conference. Retained outside 11 corporate counsel shall not appear on behalf of a corporation as the party 12 representative who has the authority to negotiate and enter into a settlement. A 13 government entity may be excused from this requirement so long as the government 14 attorney who attends the Mandatory Settlement Conference has (1) primary 15 responsibility for handling the case, and (2) authority to negotiate and recommend 16 settlement offers to the government official(s) having ultimate settlement authority. 17 c. Confidential Settlement Statements Required: On or before 18 March 8, 2021, the parties shall submit directly to Magistrate Judge Berg’s chambers 19 (via hand delivery or by e-mail to the Court at efile_berg@casd.uscourts.gov), 20 confidential settlement statements. The statements are limited to ten (10) pages, plus 21 an additional ten (10) pages of exhibits. Each party’s settlement statement must outline 22
23 1 “Full settlement authority” means that the individuals at the settlement conference must be 24 authorized to fully explore settlement options and to agree at that time to any settlement terms 25 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 26 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 27 view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum 2 (3) position regarding settlement of the case with a specific demand/offer for 3 settlement, and (4) any previous settlement negotiations or mediation efforts. The 4 Mandatory Settlement Conference statement must not merely repeat what was 5 contained in the Early Neutral Evaluation conference brief or any earlier settlement 6 brief. The settlement statement must specifically identify what the discovery process 7 revealed and the effect that the evidence has on the issues in the case. To the extent 8 specific discovery responses, portions of deposition testimony, or expert reports are 9 pertinent to the Court’s evaluation of the matter, these documents must be attached as 10 exhibits. Evidence supporting or refuting either party’s claim for damages must also be 11 identified and included as an exhibit. 12 If a specific demand or offer cannot be made at the time the settlement 13 statement is submitted, then the reasons as to why a demand or offer cannot be made 14 must be stated. Further, the party must explain when they will be in a position to state 15 a demand or offer. General statements such as a party will “negotiate in good faith” is 16 not a specific demand or offer. The settlement statement should be submitted 17 confidentially and need not be shared with other parties. 18 d. Requests to Continue a Mandatory Settlement Conference: Any 19 request to continue the Mandatory Settlement Conference, or request for relief from 20 any of the provisions or requirements of this Order, must be sought by a written 21 application. Absent good cause, requests for continuances will not be considered 22 unless submitted in writing no fewer than seven (7) calendar days prior to the 23 scheduled conference. 24 If the case is settled in its entirety before the scheduled date of the conference, 25 counsel and any unrepresented parties must still appear in person, unless a written 26 joint notice confirming the complete settlement of the case is filed no fewer than 27 twenty-four (24) hours before the scheduled conference. 2 any other action required by Local Rule 16.1(f)(2) by July 30, 2021. 3 6. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 4 Civ. P. 26(a)(3) by July 30, 2021. Failure to comply with these disclosure requirements 5 could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 37. 6 7. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by 7 August 6, 2021. At this meeting, counsel shall discuss and attempt to enter into 8 stipulations and agreements resulting in simplification of the triable issues. Counsel shall 9 exchange copies and/or display all exhibits other than those to be used for 10 impeachment. The exhibits shall be prepared in accordance with Local Rule 11 16.1(f)(4)(c). Counsel shall note any objections they have to any other parties’ Pretrial 12 Disclosures under Fed. R. Civ. P. 26(a)(3). Counsel shall cooperate in the preparation of 13 the proposed pretrial conference order. 14 8. Counsel for plaintiff will be responsible for preparing the pretrial order and 15 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By August 13, 16 2021, plaintiff’s counsel must provide opposing counsel with the proposed pretrial order 17 for review and approval. Opposing counsel must communicate promptly with plaintiff’s 18 attorney concerning any objections to form or content of the pretrial order, and both 19 parties shall attempt promptly to resolve their differences, if any, concerning the order. 20 9. The Proposed Final Pretrial Conference Order, including objections to any 21 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and 22 lodged with the assigned district judge by August 20, 2021, and shall be in the form 23 prescribed in and comply with Local Rule 16.1(f)(6). 24 10. The final Pretrial Conference is scheduled on the calendar of the Honorable 25 Dana M. Sabraw on August 27, 2021, at 10:30 a.m. The trial is scheduled to start on 26 September 27, 2021, at 9:00 a.m. 27 11. The parties must review the chambers’ rules for the assigned district judge 1 12. post trial settlement conference before a magistrate judge may be held 2 || within 30 days of verdict in the case. 3 13. The dates and times set forth herein will not be modified except for good 4 cause shown. 5 14. Briefs or memoranda in support of or in opposition to any pending motion 6 ||shall not exceed twenty-five (25) pages in length without leave of a district court judge. 7 ||No reply memorandum shall exceed ten (10) pages without leave of a district court 8 ||judge. Briefs and memoranda exceeding ten (10) pages in length shall have a table of 9 || contents and a table of authorities cited. 10 15. Plaintiff's counsel shall serve a copy of this order on all parties that enter 11 || this case hereafter. 12 All other deadlines and requirements remain unchanged. 13 IT IS SO ORDERED. 14 || Dated: February 1, 2021 = _ 2 FF 1 Honorable Michael S. Berg United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28