National Public Radio, Inc. v. U.S. Central Command

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 NATIONAL PUBLIC RADIO, INC. and Case No.: 3:21-cv-01079-MMA-AHG GRAHAM SMITH, 11 ORDER: Plaintiffs, 12 v. 1) VACATING MOTION HEARING 13 SET FOR NOVEMBER 16, 2021 U.S. CENTRAL COMMAND and 14 [ECF No. 11], U.S. DEPARTMENT OF DEFENSE,

15 Defendants. 2) GRANTING PLAINTIFFS’ 16 MOTION FOR EARLY NEUTRAL EVALUATION CONFERENCE 17 [ECF No. 10], and 18 3) SETTING EARLY NEUTRAL 19 EVALUATION CONFERENCE AND 20 CASE MANAGEMENT CONFERENCE VIA 21 VIDEOCONFERENCE 22 23 Before the Court is Plaintiffs’ Motion for Pre-Answer Early Neutral Evaluation 24 Conference. ECF No. 10. 25 On June 9, 2021, Plaintiffs filed suit in this district, alleging violations of the 26 Freedom of Information Act, and seeking records from Defendants relating to a “a 27 suspected friendly fire incident that took place in Fallujah, Iraq on 12 April, 2004.” ECF 28 No. 1. On August 2, 2021, Defendants filed a motion to dismiss Plaintiffs’ complaint. ECF 1 No. 6. As such, no Defendant answered Plaintiffs’ complaint. On November 4, 2021, 2 Plaintiffs filed the instant motion, requesting that an Early Neutral Evaluation Conference 3 (“ENE”) be scheduled before any answer had been filed. ECF No. 10; see CivLR 4 16.1(c)(1). On November 10, 2021, the Court denied Defendants’ motion to dismiss, and 5 ordered Defendants “to file a response within the time specified by Federal Rule of Civil 6 Procedure 12(a)(4)(A).” ECF No. 12 at 9. On November 12, 2021, Defendants filed a 7 Notice of Non-Opposition to the instant motion, stating that “they do not oppose Plaintiffs’ 8 request that the Court schedule an Early Neutral Evaluation.” ECF No. 13. The Court finds 9 that this motion is suitable for determination on the papers and without oral argument in 10 accordance with Civil Local Rule 7.1(d)(1). As such, the motion hearing scheduled for 11 November 16, 2021 is VACATED. 12 In this district, the Court generally conducts ENEs within forty-five days of the filing 13 of an answer. See CivLR 16.1(c)(1) (“Within forty-five (45) days of the filing of an answer, 14 counsel and the parties must appear before the assigned judicial officer supervising 15 discovery for an early neutral evaluation conference”); Seoane v. Lexisnexis Risk Data 16 Mgmt., No. 11cv0908 L-WMc, 2011 WL 2132844, at *1 (S.D. Cal. May 26, 2011); Yang 17 v. DTS Financial Group, 570 F. Supp. 2d 1257, 1261 (S.D. Cal. 2008). However, “[a]t any 18 time after the filing of a complaint and before an answer has been filed, counsel for any 19 party may make a request in writing to the judicial officer assigned to supervise discovery 20 in the case to hold an early neutral evaluation conference[.]” CivLR 16.1(c)(1). Upon such 21 a request, the Court “will examine the circumstances of the case and the reasons asserted 22 for the request[,]” and determine whether an expedited ENE would reduce the “expense 23 and delay” of litigation. Id.; Seoane, 2011 WL 2132844, at *1. 24 Upon due consideration of this case’s procedure history (see ECF Nos. 12, 13), and 25 good cause appearing, the Court GRANTS Plaintiffs’ unopposed motion. ECF No. 10. 26 Accordingly, the Court ORDERS as follows: 27 / / 28 / / 1 IT IS ORDERED that an Early Neutral Evaluation (“ENE”) of your case will be held 2 on December 15, 2021 at 9:30 a.m. before Magistrate Judge Allison H. Goddard. In 3 accordance with the Local Rules, the Court requires personal attendance of all parties, party 4 representatives, including claims adjusters for insured defendants, and the primary 5 attorney(s) responsible for the litigation. CivLR 16.1(a). However, due to the current 6 COVID-19 public emergency,1 and upon due consideration, the Court hereby MODIFIES 7 the ENE to be via videoconference for all attendees. 8 The Court issues the following Mandatory Procedures to be followed in 9 preparation for the ENE: 10 1. Purpose of the Conference: The purpose of the ENE is to permit an informal 11 discussion between the attorneys and the settlement judge of every aspect of the lawsuit in 12 an effort to achieve an early resolution of the case. All conference discussions will be 13 informal, off the record, and confidential. 14 2. Full Settlement Authority Required: A party or party representative with 15 full and complete authority to enter into a binding settlement must be present via 16 videoconference or immediately available to join. Full authority to settle means that a 17 person must be authorized to fully explore settlement options and to agree at that time to 18 any settlement terms acceptable to the parties. Heileman Brewing Co., Inc. v. Joseph Oat 19 Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have “unfettered discretion 20 and authority” to change the settlement position of a party. Pitman v. Brinker Int’l, Inc., 21

22 1 On March 2, 2021, Chief Judge Dana M. Sabraw issued an Order in response to the 23 COVID-19 public emergency (“CJO #62”) which, among other things, suspends the requirement under Civil Local Rule 16.1(a) that ENEs be conducted in person. See CJO 24 #62 at 1. CJO #62 is available on the Court website at 25 https://www.casd.uscourts.gov/_assets/pdf/rules/Chief%20Judge%20Order%2062%20- %20Civil%20Case%20Proceedings%20During%20the%20Covid- 26 19%20Public%20Emergency.pdf. The suspension of the requirement under Civil Local 27 Rule 16.1(a) that ENEs be conducted in person is also reiterated by CJO #62-B, filed on June 11, 2021. CJO #62-B is available on the Court website at 28 1 216 F.R.D. 481, 485–86 (D. Ariz. 2003). Limited or sum certain authority is not adequate. 2 Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595–97 (8th Cir. 2001). A person who needs 3 to call another person who is not present on the videoconference before agreeing to 4 any settlement does not have full authority. 5 3. Confidential ENE Statements Required: No later than December 8, 2021, 6 the parties shall submit confidential statements of five (5) pages or less directly to the 7 chambers of Magistrate Judge Goddard outlining the nature of the case, the claims, and the 8 defenses. These statements shall not be filed or served on opposing counsel. They shall 9 be lodged via email at efile_goddard@casd.uscourts.gov. The ENE statement is limited to 10 five (5) pages or less, and up to five (5) pages of exhibits or declarations. Each party’s 11 ENE statement must outline: 12 A. the nature of the case and the claims, 13 B. position on liability or defense, 14 C. position regarding settlement of the case with a specific2 15 demand/offer for settlement,3 and 16 D. any previous settlement negotiations or mediation efforts. 17 4. Case Management Conference: In the event the case does not settle at the 18 ENE, the Court will immediately thereafter hold a Case Management Conference (“CMC”) 19 pursuant to Fed. R. Civ. P. 16(b). Appearance of the parties at the CMC is not required. 20 The Court orders the following to occur before the CMC: 21 A. The parties must meet and confer pursuant to Fed. R. Civ. P. 26(f) no 22 later than November 30, 2021. 23 24 25 2 A general statement, such as that a party “will negotiate in good faith,” is a not a specific demand or offer. 26

27 3 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 B. The parties must file a Joint Case Management Statement by 2 December 7, 2021. The Joint Case Management Statement must 3 address all points in the “Joint Case Management Statement 4 Requirements for Magistrate Judge Allison H. Goddard,” which can 5 be found on the court website at: 6 https://www.casd.uscourts.gov/Judges/goddard/docs/Goddard%20Join 7 t%20Case%20Management%20Statement%20Rules.pdf. 8 C. Initial disclosures pursuant to Rule 26(a)(1)(A-D) must occur by 9 December 14, 2021. 10 5. Appearances via Videoconference Required: All named parties, party 11 representatives, including claims adjusters for insured defendants, as well as principal 12 attorney(s) responsible for the litigation must attend the ENE via videoconference. All who 13 attend the ENE must be legally and factually prepared to discuss and resolve the case. 14 Counsel appearing without their clients (whether or not counsel has been given settlement 15 authority) will be subject to immediate imposition of sanctions. To facilitate the 16 videoconference ENE, the Court hereby orders as follows: 17 A. The Court will use its official Zoom video conferencing account to hold 18 the ENE. If you are unfamiliar with Zoom: Zoom is available on 19 computers through a download on the Zoom website 20 (https://zoom.us/meetings) or on mobile devices through the 21 installation of a free app.4 Joining a Zoom conference does not require 22 creating a Zoom account, but it does require downloading the .exe file 23 (if using a computer) or the app (if using a mobile device). Participants 24 are encouraged to create an account, install Zoom and familiarize 25 26 27 4 If possible, participants are encouraged to use laptops or desktop computers for the video conference, rather than mobile devices. 28 1 themselves with Zoom in advance of the ENE. There is a cost-free 2 option for creating a Zoom account. 3 B. Prior to the start of the ENE, the Court will email each participant an 4 invitation to join a Zoom video conference. Again, if possible, 5 participants are encouraged to use laptops or desktop computers for the 6 video conference, as mobile devices often offer inferior performance. 7 Participants shall join the video conference by following the ZoomGov 8 Meeting hyperlink in the invitation. Participants who do not have 9 Zoom already installed on their device when they click on the 10 ZoomGov Meeting hyperlink will be prompted to download and 11 install Zoom before proceeding. Zoom may then prompt participants 12 to enter the password included in the invitation. All participants will be 13 placed in a waiting room until the ENE begins. 14 C. Each participant should plan to join the Zoom video conference at least 15 five minutes before the start of the ENE to ensure that the conference 16 begins promptly at 9:30 a.m. 17 D. Zoom’s functionalities will allow the Court to conduct the ENE as it 18 ordinarily would conduct an in-person one. The Court will divide 19 participants into separate, confidential sessions, which Zoom calls 20 Breakout Rooms.6 In a Breakout Room, the Court will be able to 21 communicate with participants from a single party in confidence. 22 Breakout Rooms will also allow parties and counsel to communicate 23 confidentially without the Court. 24

25 5 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- 26 us/categories/200101697-Getting-Started 27 6 For more information on what to expect when participating in a Zoom Breakout 28 1 E. No later than December 8, 2021, counsel for each party shall send an 2 e-mail to the Court at efile_goddard@casd.uscourts.gov containing the 3 following: 4 i. The name and title of each participant, including all parties 5 and party representatives with full settlement authority, claims 6 adjusters for insured defendants, and the primary attorney(s) 7 responsible for the litigation; 8 ii. An e-mail address for each participant to receive the Zoom 9 video conference invitation; and 10 iii. A telephone number where each participant may be reached 11 so that if technical difficulties arise, the Court will be in a 12 position to proceed telephonically instead of by video 13 conference. (If counsel prefers to have all participants of their 14 party on a single conference call, counsel may provide a 15 conference number and appropriate call-in information, 16 including an access code, where all counsel and parties or party 17 representatives for that side may be reached as an alternative to 18 providing individual telephone numbers for each participant.) 19 iv. A cell phone number for that party’s preferred point of 20 contact (and the name of the individual whose cell phone it is) 21 for the Court to use during the ENE to alert counsel via text 22 message that the Court will soon return to that party’s Breakout 23 Room, to avoid any unexpected interruptions of confidential 24 discussions. 25 F. All participants shall display the same level of professionalism during 26 the ENE and be prepared to devote their full attention to the ENE as if 27 they were attending in person, i.e., cannot be driving while speaking to 28 the Court. Because Zoom may quickly deplete the battery of a 1 participant’s device, each participant should ensure that their device is 2 plugged in or that a charging cable is readily available during the video 3 conference. 4 G. Counsel are advised that although the ENE will take place on Zoom, all 5 participants shall appear and conduct themselves as if it is proceeding 6 in a courtroom, i.e., counsel must dress in appropriate courtroom attire. 7 H. If the case does not settle during the ENE, the Court will hold the CMC 8 immediately following the ENE with counsel only in the main session. 9 6. Requests for Continuances: Local Rule 16.1(c) requires that an ENE take 10 place within forty-five (45) days of the filing of the first answer, and the answers in this 11 case are due on November 24, 2021. See ECF Nos. 12, 13. Requests to continue ENEs are 12 rarely granted. An ENE may be rescheduled only upon a showing of good cause and 13 adequate notice to the Court. Absent extraordinary circumstances, requests for 14 continuances will not be considered unless submitted in writing no less than seven (7) days 15 before the ENE. All requests for continuances must be made by a joint motion. The request 16 must state: 17 A. The original date; 18 B. The number of previous requests for continuances; 19 C. A showing of good cause for the request; 20 D. Whether the request is opposed and why; 21 E. Whether the requested continuance will affect other case management 22 dates; and 23 F. A declaration from the counsel seeking the continuance that describes 24 the steps taken to comply with the existing deadlines, and the specific 25 reasons why the deadlines cannot be met. 26 7. New Parties Must be Notified by Plaintiff or Plaintiff’s Counsel: 27 Plaintiff’s counsel must give notice of the ENE to any Defendants who have been served 28 but who have not yet filed responsive pleadings as of the date of this Order. If any 1 Defendants have not yet been served, Plaintiff's counsel must serve them with a copy of 2 Order along with the summons and complaint. 3 8. The failure of any party to follow these mandatory procedures shall result 4 ||in the imposition of sanctions. 5 9. Questions regarding this case or these mandatory guidelines may be directed 6 || to Judge Goddard’s law clerks at (619) 557-6162. Lodged statements should be emailed to 7 || efile_goddard @casd.uscourts.gov. 8 10. A Notice of Right to Consent to Trial Before a United States Magistrate Judge 9 attached for your review and consideration. 10 11 IT IS SO ORDERED. 12 ||Dated: November 12, 2021 3 _Abiomt. Xl Honorable Allison H. Goddard 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 NOTICE OF RIGHT TO CONSENT TO TRIAL 2 BEFORE A UNITED STATES MAGISTRATE JUDGE 3 4 In accordance with the provisions of 28 U.S.C. § 636(c), you are notified that a 5 U.S. Magistrate Judge of this district may, upon the consent of all parties, conduct any or 6 all proceedings, including a jury or non-jury trial, and order the entry of a final judgment. 7 Consent forms are available in the Clerk’s Office, and one is attached to this notice. 8 Plaintiff or counsel for the plaintiff is responsible to obtain the consent of all parties, 9 should they want to consent. 10 Be aware that your decision to consent or not to consent is entirely voluntary, 11 and should be communicated solely to the Clerk of Court. Only if all parties consent 12 will the Judge or Magistrate Judge to whom the case has been assigned be informed of 13 your decision. 14 Judgments of U.S. Magistrate Judges are appealable to the U.S. Court of Appeals 15 in accordance with this statute and the Federal Rules of Appellate Procedure. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 SOUTHERN DISTRICT OF CALIFORNIA 2

3 NATIONAL PUBLIC RADIO, INC. and Case No.: 3:21-cv-01079-MMA-AHG 4 GRAHAM SMITH, Plaintiffs, NOTICE, CONSENT, AND 5 REFERENCE OF A CIVIL ACTION TO v. A MAGISTRATE JUDGE 6

7 U.S. CENTRAL COMMAND and U.S. DEPARTMENT OF DEFENSE, 8 Defendants. 9 10 Notice of a magistrate judge's availability. A United States magistrate judge of this court is 11 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 12 States court of appeals like any other judgment of this court. A magistrate judge may exercise this authority only if all parties voluntarily consent. 13 You may consent to have your case referred to a magistrate judge, or you may withhold your 14 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. 15 16 Consent to a magistrate judge's authority. The following parties consent to have a United States magistrate judge conduct all proceedings in this case including trial, the entry of final judgment, 17 and all post-trial proceedings. 18 Printed Names Signatures of parties and attorneys Dates

19 20 21 22 23 REFERENCE ORDER 24 IT IS ORDERED: This case is referred to United States Magistrate Allison H. Goddard, 25 to conduct all proceedings and order entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. 26

27 Date United States District Judge 28