Novalk, LLC v. Evanston Insurance Company

Opinion

1 2 3 4 5 6 7 10 11 NOVALK, LLC, Case No.: 22cv1789-JO(LR)

12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT’S EX PARTE MOTION

et al., 15 [ECF NO. 13] Defendants. 16 17 18 On February 16, 2023, Defendant Evanston Insurance Company filed an “Ex 19 Parte Application to Continue Follow Up Early Neutral Evaluation Conference.” (ECF 20 No. 13.) Defendant moves the Court to continue the follow-up Settlement Conference 21 (“SC”) currently scheduled for February 21, 2023, until a date after March 11, 2023 due 22 to defense counsel’s scheduling conflict. (Id. at 1.) Defendant states that the parties have 23 not requested any continuances in this case, and Plaintiff does not oppose Defendant’s 24 request to continue the SC. (Id. at 2 (stating that “counsel for both Novalk and Evanston 25 have agreed and are available on the afternoon of March 15, 2023, and all day on 26 March 17, 2023.”); see also ECF No. 13-1, Decl. Kenneth D. Watnick (“Watnick Decl.”) 27 at 2 (declaring that “Mr. Tatone, counsel for Novak, agreed to continuing the conference 28 and provided March 15 or 17, 2023 as alternative dates.”).) Defendant also asks “for the 1 Court’s guidance as to the informal exchange of documents discussed at the January 11, 2 2023, Early Neutral Evaluation Conference (‘ENE’).” (Id.) 3 Defendant’s Request to Continue Follow-Up Settlement Conference 4 The Court initially addresses Defendant’s motion to continue the follow-up SC. In 5 his supporting declaration, defense counsel states the following: 6 Since February 6, 2023, I have been engaged in a jury trial in the matter titled, Yoav Botach et al. vs. Newmark of Southern California, Inc., et al., 7 Los Angeles County Superior Court Case No. BC717200, before the 8 Honorable Theresa M. Traber. It is anticipated we will not conclude this trial until Judge Traber’s ordered end date of March 11, 2023. 9

10 (Watnick Decl. at 2.) 11 Having reviewed Defendant’s ex parte motion, as well as defense counsel’s 12 declaration, the Court finds good cause to continue the SC to accommodate defense 13 counsel’s scheduling conflict. Accordingly, the Court continues the video follow-up SC 14 and Case Management Conference currently scheduled for February 21, 2023, at 15 9:30 a.m. until March 15, 2023, at 2:30 p.m. 16 The following rules and deadlines apply with respect to the SC: 17 1. Appearance via Videoconference Required: All named parties (including 18 those who are indemnified by others), party representatives, including claims adjusters 19 for insured defendants, as well as the principal attorney(s) responsible for the litigation, 20 must participate in the video conference, and be legally and factually prepared to discuss 21 and resolve the case. Counsel appearing without their clients will be cause for immediate 22 imposition of sanctions and may also result in the immediate termination of the 23 conference. 24 2. Full Settlement Authority Required: A party or party representative with full 25 settlement authority1 must be present at the conference. A person who needs to call 26

27 1 “Full settlement authority” means that a person is authorized to fully explore settlement options and to 28 1 another person who is not present on the videoconference before agreeing to any 2 settlement does not have full settlement authority. Retained outside corporate counsel 3 shall not appear on behalf of a corporation as the party representative who has the 4 authority to negotiate and enter into a settlement. Counsel for government entity is 5 excused from this requirement if the government counsel who participates in the SC 6 (1) has primary responsibility for handling the case, and (2) may negotiate settlement 7 offers that the attorney is willing to recommend to the government official having 8 ultimate settlement authority. 9 3. Prior to the start of the SC, the Court will e-mail each SC participant an 10 invitation to join a Zoom video conference. If possible, participants are encouraged to 11 use laptops or desktop computers for the video conference, as mobile devices often offer 12 inferior performance. Participants shall join the video conference by following the 13 ZoomGov Meeting hyperlink in the invitation. Participants who do not have Zoom 14 already installed on their device when they click on the ZoomGov Meeting 15 hyperlink will be prompted to download and install Zoom before proceeding. Zoom 16 may then prompt participants to enter the password included in the invitation. All 17 participants will be placed in a waiting room until the SC begins. 18 4. Each participant should plan to join the Zoom video conference at least ten 19 minutes before the start of the SC to ensure that the SC begins promptly at 2:30 p.m. 20 The Zoom e-mail invitation may indicate an earlier start time, but the SC will begin 21 at the Court-scheduled time. 22 / / / 23 / / / 24 / / / 25

26 Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have “unfettered discretion and 27 authority” to change the settlement position of a party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485–86 (D. Ariz. 2003). Limited or a sum certain authority is not adequate. See Nick v. Morgan’s 28 1 5. No later than March 8, 2023, counsel for each party shall send an e-mail to 2 the Court at efile_rodriguez@casd.uscourts.gov containing the following: 3 a. The name and title of each participant, including all parties and 4 party representatives with full settlement authority, claims adjusters for insured 5 defendants, and the primary attorney(s) responsible for the litigation; 6 b. An e-mail address for each participant to receive the Zoom video 7 conference invitation; and 8 c. A telephone number where each participant may be reached so that 9 if technical difficulties arise, the Court will be able to proceed telephonically instead of 10 by video conference. (If counsel prefers all participants of their party on a single 11 conference call, counsel may provide a conference number and appropriate call-in 12 information, including an access code, where all counsel and parties or party 13 representatives for that side may be reached as an alternative to providing individual 14 telephone numbers for each participant.) 15 Defendant’s Request for “Guidance” 16 In its ex parte motion, Defendant also asks “for the Court’s guidance as to the 17 informal exchange of documents discussed at the January 11, 2023, Early Neutral 18 Evaluation Conference (‘ENE’).” (Id.) Defendant states the following: 19 At the prior ENE, Evanston understood that the parties would send narrowly tailored requests for specific documents necessary to evaluate settlement. 20 Evanston prepared a letter in accordance with this understanding and 21 counsel for plaintiff. In contrast, Novalk, LLC (“Novalk”) prepared a letter essentially containing broad discovery requests for “any and all documents” 22 relating to particular subjects. Evanston requests the Court’s guidance as to 23 the proper nature of the informal requests in connection with the ENE.

25 (ECF No. 13 at 2.) 26 To the extent Defendant seeks a ruling from the Court regarding the appropriate 27 scope of discovery in this case, the request is premature because the Court has not yet 28 held a Case Management Conference and has not issued a scheduling order. The Court, 1 || however, encourages the parties to meet and confer to determine what documents and 2 ||information will be helpful to evaluate their settlement positions in preparation for the 3 and to exchange those documents and information before the March 15, 2023 SC. 4 Accordingly, Defendant’s ex parte motion is GRANTED in PART and DENIED 7 Dated: February 17, 2023 LY 9 Honorable Lupe Rodriguez, Jr. 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28