Olivas v. Lowe's Companies, Inc.

• Court: District Court, S.D. California
• Decided: October 29, 2021
• Docket: 3:21-cv-01769
• Status: Unknown

Opinion

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6 . 7 UNITED STATES DISTRICT COURT . 9 | SOUTHERN DISTRICT OF CALIFORNIA 10 11 |) ANALIA OLIVAS, a minor child, by and Case No.: 21-cv-1769-GPC-RBM 2 sehr Gun ate, 3 ° a ORDER GRANTING JOINT Plaintiff,|_ MOTION TO CONTINUE EARLY NEUTRAL EVALUATION □ 15 CONFERENCE AND RULE 26 LOWE’S COMPANIES, INC., et al., COMPLIANCE AND CASE 16 MANAGEMENT CONFERENCE 17 Defendants. 18 “19 . [Doc. 9] 20 21 On October 28, 2021, Plaintiff Analia Olivas, a minor child by and through her 22 || Guardian ad Litem, Alberto Olivas (“Plaintiff”) and Defendant Lowe’s Companies, Inc. 23 (“Defendant”) filed a joint motion to continue early neutral evaluation conference and 24 ||scheduling conference (“Joint Motion”). (Doc. 9.) The parties seek to continue the 25 ||November 22, 2021 early neutral evaluation conference (“ENE”) and case management 26 || conference (“CMC”) to a date after December 1, 2021 as defense counsel and Defendant’s 27 ||primary representative will be unavailable on November 22, 2021 due to vacation plans 28 || and the Thanksgiving holiday. (Jd. at 2.)

1 The undersigned’s October 21, 2021 order set the ENE on November 22, 2021 and 2 ||the deadline to lodge confidential ENE statements on November 10, 2021. (Doc. Tat 3.) 3 | A scheduling order may be modified only upon a showing of good cause and with 4 || the judge’s consent. FED. R. Civ. P. 16(b)(4); see, e.g., Johnson v. Mammoth Recreations, 5 975 F.2d 604; 609 (9th Cir. 1992) (stating, “the focus of [the good cause] inquiry is 6 || upon the moving party’s reasons for seeking modification.”) 7 Here, the undersigned finds good cause to vacate the current ENE date and to grant - 8 continuance, and thus the Joint Motion is GRANTED. Considering the 45-day timeline 9 || to convene the ENE as set forth in Civil Local Rule 16.1(c), FURTHER REQUESTS TO 10 || CONTINUE THE ENE AND CMC WILL NOT BE GRANTED ABSENT 11 || EXTRAORDINARY GOOD CAUSE. The undersigned’s October 21, 2021 order is 12 amended as follows: 13 IT IS HEREBY ORDERED that an Early Neutral Evaluation Conference of your 14 will be held on December 13, 2021, at 1:30 p.m. before United States Magistrate 15 || Judge Ruth Bermudez Montenegro of the Southern District of California, United States 16 Courthouse, 2003 W. Adams Ave., El Centro, CA 92243. In the event the case does not 17 ||settle at the ENE, a Case Management Conference pursuant to FED. R. CIV. P. 16(b) is 18 || set for December 13, 2021, and will be held at the conclusion of the ENE. Although the 19 || Court typically requires personal attendance of all parties, party representatives, including 20 || claims adjusters for insured parties, and primary attorney(s) responsible for the litigation, 21 to the COVID-19 public emergency the ENE and CMC shall convene through the 22 || Zoom video conferencing platform, as explained below. If circumstances relating to the 23 ||COVID-19 public emergency improve prior to the scheduled date, the Court will notify the 24 || parties that it will conduct the conference in person. 25 The following are mandatory directions for the parties preparing for the ENE. 26 || Absent express permission from this Court, and notwithstanding the pendency of any 27 ||motion, counsel shall timely comply with the dates and deadlines ordered herein. 28

1. Purpose of Conference: The purpose of the ENE is to permit an informal 2 || discussion between the attorneys, parties, and the settlement judge of every aspect of the 3 || lawsuit in an effort to achieve an early resolution of the case. All ENE discussions will be 4 ||informal, off the record, privileged, and confidential. Counsel for non-English speaking 5 || parties is responsible for arranging for the appearance of an interpreter at the ENE. 6 2. Personal Appearance of Parties Required: All parties, adjusters for insured 7 defendants, and other representatives of a party having full settlement authority as 8 || explained below, and the principal attorneys responsible for the litigation, must be present 9 legally and factually prepared to discuss settlement of the case. Counsel appearing 10 || without their clients (whether or not counsel has been given settlement authority) will be 11 ||cause for immediate imposition of sanctions and may result in immediate termination of 12 ENE. If each of the principal attorneys responsible for the litigation is not listed on the 13 docket as an “ATTORNEY TO BE NOTICED,” then they each shall enter'their appearance 14 || on the docket as soon as practicable, but no later than ten calendar days prior to the ENE. 15 Unless extraordinary circumstances exist, persons required to attend the ENE under 16 |/this Order will not be excused from attendance. Requests for excuse from attendance 17 || for extraordinary circumstances shall be filed as a motion at least ten calendar days 18 || before the ENE. Failure to appear at the ENE will be grounds for sanctions. 19 3. Full Settlement Authority Required: In addition to counsel who will try the 20 case, a party or party representative with full settlement authority! must be present for the 21 . 22 .

23 Full settlement authority means that the individuals at the settlement conference must be 24 || authorized to explore settlement options fully and to agree at that time to any settlement 25 ||terms 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 party. Pitman v. Brinker Int'l, Inc., 216 F.R.D. 481, 485-86 27 ||(D. Ariz. 2003). The purpose of requiring a person with unlimited settlement authority to attend the conference contemplates that the person’s view of the case may be altered during 28 the face-to-face conference. Pitman, 216 F.R.D. at 486. A limited or a sum certain of

1 ||ENE. In the case of an entity, an authorized representative of the entity other than retained 2 || outside counsel must be present and must have discretionary authority to commit the entity 3 ||to pay an amount up to the amount of Plaintiff's prayer (excluding punitive damages 4 || prayers). The purpose of this requirement is to have representatives present who can settle 5 || the case during the ENE without consulting a superior.

6 4. ENE Statements Required: On or before December 1, 2021, Plaintiff and 7 ||Defendant shall lodge statements of five pages or less directly to Magistrate Judge 8 || Montenegro’s chambers outlining the nature of the case, the claims, the defenses, and the 9 || parties’ positions regarding settlement of the case. The settlement position must include a 10 || specific and current demand or offer addressing all relief or remedies sought. Ifa specific 11 || demand or offer cannot be made at the time the brief is submitted, then the reasons therefore 12 ||must be stated along with a statement as to when the party will be in a position to state a 13 ||demand or offer. A general statement that a party will “negotiate in good faith,” “offer a 14 ||nominal cash sum,” or “be prepared to make an offer at the conference” is not a specific 15 ||demand or offer. The statement shall also list all attorney and non-attorney conference 16 |/attendees for that side, including the name(s) and title(s)/position(s) of the party/party 17 representative(s) who will attend and have settlement authority at the conference. □ 18 ENE statements shall be lodged via email at efile montenegro@casd.uscourts.gov. 19 || If exhibits are attached and the total submission amounts to more than twenty pages, a hard 20 ||copy must also be delivered directly to chambers. Whether these statements are 21 ||submitted confidentially or whether they are served on opposing counsel is within the 22 || parties’ discretion. Statements of more than five pages will not be considered. 5. Submission of Magistrate Judge Consent Form: No later than November 24 || 10, 2021, if Defendants consent to the reference to a magistrate judge, Defendants shall 25 || provide Plaintiff and/or Plaintiff's counsel with an executed copy of the attached consent 26 27 28 Soy is not adequate. See Nick v. Morgan’s Foods, Inc. 270 F.3d 590, 595-97 (8th ir. 2001). □

1 || form, titled Notice, Consent, and Reference of a Civil Action to a Magistrate Judge. Under 2 Civil Local Rule 73.1, if (and only if) all parties have consented to the reference to a 3 magistrate judge, then Plaintiff shall file the consent form(s) in paper format at the Clerk’s 4 || Office by November 17, 2021. If the paper format filing reflects consent by all parties, 5 || then the form(s) will be forwarded to the assigned district judge for approval. The consent 6 ||form(s) should not_be_ filed with the Court electronically through its Case 7 || Management/Electronic Case Filing (CM/ECF) system. No consent form will be made 8 || available, nor will its contents be made known to any judicial officer, unless all parties 9 ||have consented to the reference to a magistrate judge. The parties are free to withhold 10 ||consent without adverse substantive consequences. Questions related to the consent |/ form(s) should only be directed to the Clerk’s Office at 619-557-5600. Please do not call 12 chambers’ staff with questions related to the consent form(s). 13 6. New Parties Must Be Notified by Plaintiff's Counsel: Plaintiffs counsel 14 || shall give notice of the ENE and this Order to parties responding to the Complaint after the 15 || date of this notice. 16 7. Appearing via Zoom Video Conference Platform for ENE Conference a. The Court will use its official Zoom videoconferencing account to hold the 18 ENE. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on 19 computers through a download on the Zoom _ website 20 (hitps://zoom.us/meetings) or on mobile devices through the installation of a 21 free app.” Joining a Zoom conference does not require creating a Zoom 22 account, but it does require downloading the .exe file (if using a computer) or 23 the app (if using a mobile device). Participants are encouraged to create an 24 25 26 27 2g If possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. ‘

1 account, install Zoom and familiarize themselves with Zoom in advance of 2 || _ the ENE.’ There is a cost-free option for creating a Zoom account. 3 b. Prior to the start of the ENE, the Court will e-mail each ENE participant an 4 invitation to join a Zoom video conference. Again, if possible, participants 5 are encouraged to use laptops or desktop computers for the video conference, 6 as mobile devices often offer inferior performance. Participants shall join the 7 video conference by following the ZoomGov Meeting hyperlink in the 8 invitation. Participants who do not have Zoom already installed on their 9 device when they click on the ZoomGov Meeting hyperlink will be 10 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. (13 ce. Each participant should plan to join the Zoom video conference at least five 14], minutes before the start of the ENE to ensure that the ENE begins promptly 15. at 1:30 p.m. The Zoom e-mail invitation may indicate an earlier start 16 time, but the ENE will begin at the Court scheduled time. 17 | ~ d. Zoom’s functionalities will allow the Court to conduct the ENE as it ordinarily 18 would conduct an in-person ENE. That is, the Court will begin the ENE with 19 all participants joined together in a main session. After an initial discussion 20 in the main session, the Court will divide participants into separate, 21 confidential sessions, which Zoom calls Breakout Rooms.’ In a Breakout 22 Room, the Court will be able to communicate with participants from a single 23 . . 24 . 25 || 26 113 For help getting "started with Zoom, visit: https://support.zoom.us/hc/en- 27 || us/categories/200101697-Getting-Started. 28 4 F or more information on what to expect when participating in a Zoom Breakout Room, visit: □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 15005769646.

1 party in confidence. Breakout Rooms will also allow parties and counsel to 2 communicate confidentially outside of the Court’s presence. 3 □ e. No later than December 6, 2021, counsel for each party shail send an e-mail 4 to the Court at efile montenegro@casd.uscourts.gov containing the 5 following: □ 6 i. The name and title of each participant, including all parties and party 7 representatives with full settlement authority, claims adjusters for 8 insured defendants, and primary attorney(s) responsible for litigation; 9 ii. An e-mail address for each participant to receive the Zoom video 10 . conference invitation; and 11 iii. A telephone number where each participant may be reached so that 12 if technical difficulties arise with Zoom, the Court will be able to _ proceed telephonically. (If counsel prefers to have all participants of 14 their party on a single conference call, counsel may provide a 15 conference number and appropriate call-in information, including an 16 access code, where all counsel and parties or party representatives for 17 that side may be reached as an alternative to providing individual 18 telephone numbers for each participant.) 19 All participants shall display the same level of professionalism during the ENE and 20 || be prepared to devote their full attention to the ENE as if they were attending in person. 21 ||Because Zoom may quickly deplete the battery of a participant’s device, each participant 22 ||should ensure that their device is plugged in or that a charging cable is readily available 23 || during the video conference. 24 8. Case Management under the Amended Federal Rules: The parties are 25 || ordered to comply with FED. R. Civ. P. 26 and proceed with the initial disclosure process 26 as follows: 27 a. The Rule 26(f) conference shall be completed on or before November 10, 28 2021;

1 b. The date of initial disclosure pursuant to Rule 26(a)(1)(A)-(D) shall occur on 2 or before December 1, 2021; 3 c. A Joint Discovery Plan (“Plan”) shall be filed on the CM/ECF system as well 4 as lodged with Magistrate Judge Montenegro by emailing the Plan to 5 efile. montenegro@casd.uscourts.gov, on or before December 1, 2021. The 6 || Plan must be one document and must explicitly cover the parties’ views and 7 proposals for each item identified in Fep. R. Civ. P. 26(f)(3). The parties 8 should consult both Judge Montenegro’s and the assigned District Judge’s 9 Civil Chambers Rules in drafting their Plan. A courtesy paper copy of the 10 Plan shall be delivered to Judge Montenegro’s Chambers if the Plan, with its 11 attachments, exceeds twenty pages. 12 9. Requests to Continue or Reschedule an ENE: Civil Local Rule 16.1(c) 13 ||requires an ENE take place within 45 days of the filing of the first Answer. Requests to 14 || continue ENE are rarely granted. But the Court will consider formal, filed ex parte or joint 15 motions to continue an ENE when extraordinary circumstances exist making a continuance 16 appropriate. Absent extraordinary circumstances, requests for continuances will not be 17 || considered unless filed no less than ten calendar days before the scheduled conference. 18 10. Settlement Prior to ENE: It is expected that before the ENE, the parties will 19 || have exchanged good-faith settlement offers, including the basis for their positions, no later 20 || than December 1, 2021. If settlement is not achieved, Counsel shall be prepared to identify 21 ||and discuss the impasses and barriers to settlement at the ENE. In the event the parties 22 ||resolve the matter before the day of the ENE, the following procedures must be followed 23 || before the Court will vacate the ENE and excuse the parties from appearing: 24 . 25 26 27 □ 28 .

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1 a. The parties may file a Joint Motion to Dismiss and separately lodge by email 2 a proposed order to the assigned District Judge.” If a Joint Motion to Dismiss 3 is filed, the Court will vacate the ENE. The parties are encouraged to contact Judge Montenegro’s Chambers by telephone to notify the Court of their 5 pending Joint Motion; . 6 b. If the parties settle more than twenty-four hours before the ENE but are not 7 able to file a Joint Motion to Dismiss, they must file a Notice of Settlement 8 containing the electronic signatures of counsel for all settling parties and identifying a date by which the Joint Motion to Dismiss will be filed. The 10 . parties are encouraged to contact Judge Montenegro’s Chambers by telephone 11 to notify the Court of their filed Notice of Settlement; 12 c. Ifthe parties settle less than 24 hours before the ENE, counsel for the settling 13 _ parties must JOINTLY call chambers and inform the Court of the settlement 14 and receive Court permission to not appear at the ENE. . ‘15 After reviewing Judge Montenegro’s Civil Chambers Rules, appropriate questions 16 regarding this case or the mandatory directions set forth herein may be addressed through 17 joint call by the parties to Judge Montenegro’s law clerks at (760) 339-4250. For 18 || additional information, please see Judge Montenegro’s Civil Chambers Rules. 19 ISSO ORDERED. | 20 Dated: October 29, 2021 □

22 oo HON. RUTH BERMUDEZ MONTENEGRO 23 UNITED STATES MAGISTRATE JUDGE 24 . 25 ©

27 ||° See Electronic Case Filing Administrative Policies and Procedures Manual, United States 08 District Court for the Southern District of California § 2(h), for the chambers’ official email address and procedures on emailing proposed orders.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ANALIA OLIVAS, a minor child, by and Case No.: 21-cv-1769-GPC-RBM through her Guardian ad Litem, ALBERTO . OLIVAS, NOTICE, CONSENT, AND . . Plaintiff, REFERENCE OF A CIVIL ACTION TO v. A MAGISTRATE JUDGE

_ LOWE’S COMPANIES, INC., et al., Defendants.

Notice of a magistrate judge's availability. A United States magistrate judge of this court is 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 . States court of appeals like any other judgment of this court. A magistrate judge may exercise this authority only if all parties voluntarily consent. You may consent to have your case referred to a magistrate judge, or you may withhold your 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. Consent to a magistrate judge's authority. The following parties OD Consent / 0 Do Not Consent* have a United States magistrate judge conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings. Printed Names Signatures of all parties and counsel for all parties Dates

REFERENCE ORDER IT IS ORDERED: This case is referred to United States Magistrate Judge Ruth B. Montenegro to conduct all proceedings and order entry of a final judgment in accordance with 28 U.S.C.,.§ 636(c), FED. R. CIV. P. 73, and CivLR 73.1.

Date . United States District Judge

* Pursuant to Civil Local Rule 73.1, if (and only if) all parties have consented to the reference to a magistrate judge, .