Lackman v. Blazin Wings, Inc.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CASSANDRA LACKMAN, Case No.: 3:20-cv-1256-BEN-AHG 11 Plaintiff, ORDER GRANTING MOTION TO CONTINUE EARLY NEUTRAL 12 v. EVALUATION AND CASE 13 BLAZIN WINGS, INC.; BUFFALO MANAGEMENT CONFERENCE WILD WINGS, INC.; and INSPIRE 14 BRANDS, INC., [ECF No. 8] 15 Defendants. 16

17 This matter comes before the Court on the parties’ Joint Motion to Continue the 18 Early Neutral Evaluation (“ENE”) and Case Management Conference (“CMC”), filed on 19 August 6, 2020. ECF No. 8. 20 On July 9, 2020, the Court scheduled the ENE and CMC in this matter for 21 September 8, 2020 before Magistrate Judge Allison H. Goddard. ECF No. 6. However, 22 defense counsel is unavailable to attend the ENE on that date due to a previously scheduled 23 family vacation. See ECF No. 8-1, James Decl. Upon due consideration, the Court finds 24 good cause to GRANT the Joint Motion (ECF No. 8). 25 Accordingly, the ENE and CMC are hereby RESET for October 9, 2020 at 26 2:00 p.m. As before, the ENE will take place via videoconference for all attendees. 27 The Court issues the following Mandatory Procedures to be followed in 28 1 preparation for the ENE: 2 1. Purpose of the Conference: The purpose of the ENE is to permit an informal 3 discussion between the attorneys and the settlement judge of every aspect of the lawsuit in 4 an effort to achieve an early resolution of the case. All conference discussions will be 5 informal, off the record, and confidential. 6 2. Full Settlement Authority Required: A party or party representative with 7 full and complete authority to enter into a binding settlement must be present via 8 videoconference or immediately available to join. Full authority to settle means that a 9 person must be authorized to fully explore settlement options and to agree at that time to 10 any settlement terms acceptable to the parties. Heileman Brewing Co., Inc. v. Joseph Oat 11 Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have “unfettered discretion 12 and authority” to change the settlement position of a party. Pitman v. Brinker Int’l, Inc., 13 216 F.R.D. 481, 485–86 (D. Ariz. 2003). Limited or sum certain authority is not adequate. 14 Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595–97 (8th Cir. 2001). A person who needs 15 to call another person who is not present on the videoconference before agreeing to 16 any settlement does not have full authority. 17 3. Confidential ENE Statements Required: No later than October 5, 2020, 18 the parties shall submit confidential statements of five (5) pages or less directly to the 19 chambers of Magistrate Judge Goddard outlining the nature of the case, the claims, and the 20 defenses. These statements shall not be filed or served on opposing counsel. They shall 21 be lodged via email at efile_goddard@casd.uscourts.gov. The ENE statement is limited to 22 five (5) pages or less, and up to five (5) pages of exhibits or declarations. Each party’s 23 ENE statement must outline: 24 A. the nature of the case and the claims, 25 B. position on liability or defense, 26 27 28 1 C. position regarding settlement of the case with a specific 2 demand/offer for settlement,2 and 3 D. any previous settlement negotiations or mediation efforts. 4 4. Case Management Conference: In the event the case does not settle at the 5 ENE, the Court will immediately thereafter hold a Case Management Conference (“CMC”) 6 pursuant to Fed. R. Civ. P 16(b). Appearance of the parties at the CMC is not required. The 7 Court orders the following to occur before the CMC: 8 A. The parties must meet and confer pursuant to Fed. R. Civ. P. 26(f) no 9 later than September 18, 2020. 10 B. The parties must file a Joint Case Management Statement by 11 September 29, 2020. The Joint Case Management Statement must 12 address all points in the “Joint Case Management Statement 13 Requirements for Magistrate Judge Allison H. Goddard,” which can 14 be found at: 15 https://www.casd.uscourts.gov/Judges/goddard/docs/Goddard%20Join 16 t%20Case%20Management%20Statement%20Rules.pdf. 17 C. Initial disclosures pursuant to Rule 26(a)(1)(A-D) must occur by 18 October 2, 2020. 19 5. Appearances via Videoconference Required: All named parties, party 20 representatives, including claims adjusters for insured defendants, as well as principal 21 attorney(s) responsible for the litigation must attend the ENE via videoconference. All who 22 attend the ENE must be legally and factually prepared to discuss and resolve the case. 23

24 25 1 A general statement, such as that a party “will negotiate in good faith,” is a not a specific demand or offer. 26

27 2 If a specific demand or offer cannot be made at the time the ENE statement is submitted, then the reasons as to why a demand or offer cannot be made must be stated. Further, the 28 1 Counsel appearing without their clients (whether or not counsel has been given settlement 2 authority) will be subject to immediate imposition of sanctions. To facilitate the 3 videoconference ENE, the Court hereby orders as follows: 4 A. The Court will use its official Zoom video conferencing account to hold 5 the ENE. If you are unfamiliar with Zoom: Zoom is available on 6 computers through a download on the Zoom website 7 (https://zoom.us/meetings) or on mobile devices through the 8 installation of a free app.3 Joining a Zoom conference does not require 9 creating a Zoom account, but it does require downloading the .exe file 10 (if using a computer) or the app (if using a mobile device). Participants 11 are encouraged to create an account, install Zoom and familiarize 12 themselves with Zoom in advance of the ENE.4 There is a cost-free 13 option for creating a Zoom account. 14 B. Prior to the start of the ENE, the Court will email each participant an 15 invitation to join a Zoom video conference. Again, if possible, 16 participants are encouraged to use laptops or desktop computers for the 17 video conference, as mobile devices often offer inferior performance. 18 Participants shall join the video conference by following the ZoomGov 19 Meeting hyperlink in the invitation. Participants who do not have 20 Zoom already installed on their device when they click on the 21 ZoomGov Meeting hyperlink will be prompted to download and 22 install Zoom before proceeding. Zoom may then prompt participants 23

24 25 3 If possible, participants are encouraged to use laptops or desktop computers for the video conference, rather than mobile devices. 26

27 4 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- us/categories/200101697-Getting-Started 28 1 to enter the password included in the invitation. 2 C. Each participant should plan to join the Zoom video conference at least 3 five minutes before the start of the ENE to ensure that the conference 4 begins promptly at 2:00 p.m. 5 D. Zoom’s functionalities will allow the Court to conduct the ENE as it 6 ordinarily would conduct an in-person one. The Court will divide 7 participants into separate, confidential sessions, which Zoom calls 8 Breakout Rooms.5 In a Breakout Room, the Court will be able to 9 communicate with participants from a single party in confidence. 10 Breakout Rooms will also allow parties and counsel to communicate 11 confidentially without the Court. 12 E. No later than October 5, 2020, counsel for each party shall send an 13 e-mail to the Court at efile_goddard@casd.uscourts.gov containing the 14 following: 15 i. The name and title of each participant, including all parties 16 and party representatives with full settlement authority, claims 17 adjusters for insured defendants, and the primary attorney(s) 18 responsible for the litigation; 19 ii. An e-mail address for each participant to receive the Zoom 20 video conference invitation; and 21 iii. A telephone number where each participant may be reached 22 so that if technical difficulties arise, the Court will be in a 23 position to proceed telephonically instead of by video 24 conference. (If counsel prefers to have all participants of their 25 party on a single conference call, counsel may provide a 26 27 5 For more information on what to expect when participating in a Zoom Breakout 28 1 conference number and appropriate call-in information, 2 including an access code, where all counsel and parties or party 3 representatives for that side may be reached as an alternative to 4 providing individual telephone numbers for each participant.) 5 iv. A cell phone number for that party’s preferred point of 6 contact (and the name of the individual whose cell phone it is) 7 for the Court to use during the ENE to alert counsel via text 8 message that the Court will soon return to that party’s Breakout 9 Room, to avoid any unexpected interruptions of confidential 10 discussions. 11 F. All participants shall display the same level of professionalism during 12 the ENE and be prepared to devote their full attention to the ENE as if 13 they were attending in person, i.e., cannot be driving while speaking to 14 the Court. Because Zoom may quickly deplete the battery of a 15 participant’s device, each participant should ensure that their device is 16 plugged in or that a charging cable is readily available during the video 17 conference. 18 G. If the case does not settle during the ENE, the Court will hold the CMC 19 immediately following the ENE with counsel only in the main session. 20 6. Requests for Continuances: Local Rule 16.1(c) requires that an ENE take 21 place within forty-five (45) days of the filing of the first answer. Requests to continue ENEs 22 are rarely granted. An ENE may be rescheduled only upon a showing of good cause and 23 adequate notice to the Court. Absent extraordinary circumstances, requests for 24 continuances will not be considered unless submitted in writing no less than seven (7) days 25 before the ENE. All requests for continuances must be made by a joint motion. The request 26 must state: 27 A. The original date; 28 B. The number of previous requests for continuances; 1 C. A showing of good cause for the request; 2 D. Whether the request is opposed and why; 3 E. Whether the requested continuance will affect other case management 4 dates; and 5 F, A declaration from the counsel seeking the continuance that describes 6 the steps taken to comply with the existing deadlines, and the specific 7 reasons why the deadlines cannot be met. 8 7. Parties Must _be Notified by Plaintiff or Plaintiff's Counsel: 9 || Plaintiff’s counsel must give notice of the ENE to any Defendants who have been served 10 who have not yet filed responsive pleadings as of the date of this Order. If any 11 ||Defendants have not yet been served, Plaintiff's counsel must serve them with a copy of 12 Order along with the summons and complaint. 13 8. The failure of any party to follow these mandatory procedures shall result 14 ||in the imposition of sanctions. 15 9. Questions regarding this case or these mandatory guidelines may be directed 16 || to Judge Goddard’s law clerks at (619) 557-6162. Lodged statements should be emailed to 17 |\efile_goddard@casd.uscourts.gov. 18 IT IS SO ORDERED. 19 50 Dated: August 6, 2020 A ib H. ! | | b Honorable Allison H. Goddard 21 United States Magistrate Judge 22 23 24 25 26 27 28