MICHAEL TAGWERKER, Case No.: 3:24-cv-00897-H-AHG Plaintiff, ORDER GRANTING JOINT MOTION TO CONTINUE EARLY v. NEUTRAL EVALUATION AMAZON.COM SERVICES LLC, et al., CONFERENCE AND CASE MANAGEMENT CONFERENCE Defendants.
[ECF No. 9]
Before the Court is the parties’ Joint Motion to Continue the Early Neutral Evaluation (“ENE”) and Case Management Conference (“CMC”) currently set for July 10, 2024. ECF No 9. Parties seeking to continue an ENE must demonstrate good cause. ECF No. 3 at 6 (“An ENE may be rescheduled only upon a showing of good cause”); Chmb.R. at 2 (stating that any request for continuance requires “[a] showing of good cause for the request”); see FED. R. CIV. P. 6(b) (“When an act may or must be done within a specified time, the court may, for good cause, extend the time”). Courts have broad discretion in determining whether there is good cause. See, e.g., Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992); Liguori v. Hansen, No. 2:11cv492-GMN-CWH, 2012 WL 760747, at *12 (D. Nev. Mar. 6, 2012). “Good cause” is a non-rigorous standard that has been construed broadly across procedural and statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). The good cause standard focuses on the diligence of the party seeking to amend the scheduling order and the reasons for seeking modification. Johnson, 975 F.2d at 609 (“[T]he focus of the inquiry is upon the moving party’s reasons for seeking modification.... If that party was not diligent, the inquiry should end.”) (internal citation omitted). Here, the parties seek a continuance ENE for three reasons. First, the parties contend that Plaintiff’s motion to remand necessitates a continuance because it would “potentially spare the parties and the District Court from consuming time, effort, and resources in preparing for and conducting the ENE,” since “the court’s ruling on Plaintiff’s motion to remand may eliminate further proceedings” in this court. ECF No. 9 at 2. Second, the parties represent to the Court that Plaintiff is scheduled to have shoulder replacement surgery on July 1, 2024, and will not be fully recovered in time for the July 10 ENE. Id. Third, Plaintiff’s counsel notes that he needs more time to complete his initial disclosures, due to delays in receiving information from various health care providers. Id. at 2–3. As such, the parties request that the ENE and CMC be continued to a date after July 29, 2024. Id. at 3. The Court is unpersuaded that a pending motion to remand would provide good cause for a continuance, and notes that it routinely holds ENEs and settlement conferences with motions pending. However, the Court finds good cause for a continuance due to Plaintiff’s shoulder surgery. As such, the joint motion is GRANTED IN PART as follows: 1. The ENE originally scheduled for July 10, 2024, is RESET for August 9, 2024 at 2:00 p.m. via videoconference before Magistrate Judge Allison H. Goddard. In accordance with the Local Rules, the Court requires attendance of all parties, party representatives, including claims adjusters for insured defendants, and the primary attorney(s) responsible for the litigation via videoconference. CivLR 16.1(c)(1). / / 2. Purpose of the Conference: The purpose of the ENE is to permit an informal discussion between the attorneys and the settlement judge of every aspect of the lawsuit in an effort to achieve an early resolution of the case. All conference discussions will be informal, off the record, and confidential. 3. Full Settlement Authority Required: A party or party representative with full and complete authority to enter into a binding settlement must be present via videoconference. Full authority to settle means that a person must be authorized to fully explore settlement options and to agree at that time to any settlement terms acceptable to the parties. Heileman Brewing Co., Inc. 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 (D. Ariz. 2003). Limited or sum certain authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595–97 (8th Cir. 2001). A person who needs to call another person who is not present on the videoconference before agreeing to any settlement does not have full authority. 4. Confidential ENE Statements Required: No later than August 2, 2024, the parties shall submit confidential statements of five (5) pages or less directly to the chambers of Magistrate Judge Goddard outlining the nature of the case, the claims, and the defenses. These statements shall not be filed or served on opposing counsel. They shall be lodged via email at efile_goddard@casd.uscourts.gov. The ENE statement is limited to five (5) pages or less, and up to five (5) pages of exhibits or declarations. Each party’s ENE statement must outline: A. the nature of the case and the claims, B. position on liability or defense, C. position regarding settlement of the case with a specific1
1 A general statement, such as that a party “will negotiate in good faith,” is a not a specific demand/offer for settlement, and D. any previous settlement negotiations or mediation efforts. 5. Case Management Conference: In the event the case does not settle at the ENE, the Court will immediately thereafter hold a Case Management Conference (“CMC”) pursuant to Fed. R. Civ. P. 16(b). Appearance of the parties at the CMC is not required. The Court orders the following to occur before the CMC: A. The parties must meet and confer pursuant to Fed. R. Civ. P. 26(f) no later than June 17, 2024. The parties represented to the Court that they completed this requirement on June 11, 2024. ECF No. 9-1 at 2. B. The parties must file a Joint Case Management Statement by August 1, 2024. The Joint Case Management Statement must address all points in the “Joint Case Management Statement Requirements for Magistrate Judge Allison H. Goddard,” which can be found on the court website at: https://www.casd.uscourts.gov/Judges/goddard/docs/Goddard%20Join t%20Case%20Management%20Statement%20Rules.pdf. C. Initial disclosures pursuant to Rule 26(a)(1)(A-D) must occur by July 29, 2024. 6. Appearances via Videoconference Required: All named parties, party representatives, including claims adjusters for insured defendants, as well as principal attorney(s) responsible for the litigation must attend the ENE via videoconference. All who attend the ENE must be legally and factually prepared to discuss and resolve the case. Counsel appearing without their clients (whether or not counsel has been given settlement authority) will be subject to immediate imposition of sanctions. To facilitate the
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MICHAEL TAGWERKER, Case No.: 3:24-cv-00897-H-AHG Plaintiff, ORDER GRANTING JOINT MOTION TO CONTINUE EARLY v. NEUTRAL EVALUATION AMAZON.COM SERVICES LLC, et al., CONFERENCE AND CASE MANAGEMENT CONFERENCE Defendants.
[ECF No. 9]
Before the Court is the parties’ Joint Motion to Continue the Early Neutral Evaluation (“ENE”) and Case Management Conference (“CMC”) currently set for July 10, 2024. ECF No 9. Parties seeking to continue an ENE must demonstrate good cause. ECF No. 3 at 6 (“An ENE may be rescheduled only upon a showing of good cause”); Chmb.R. at 2 (stating that any request for continuance requires “[a] showing of good cause for the request”); see FED. R. CIV. P. 6(b) (“When an act may or must be done within a specified time, the court may, for good cause, extend the time”). Courts have broad discretion in determining whether there is good cause. See, e.g., Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992); Liguori v. Hansen, No. 2:11cv492-GMN-CWH, 2012 WL 760747, at *12 (D. Nev. Mar. 6, 2012). “Good cause” is a non-rigorous standard that has been construed broadly across procedural and statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). The good cause standard focuses on the diligence of the party seeking to amend the scheduling order and the reasons for seeking modification. Johnson, 975 F.2d at 609 (“[T]he focus of the inquiry is upon the moving party’s reasons for seeking modification.... If that party was not diligent, the inquiry should end.”) (internal citation omitted). Here, the parties seek a continuance ENE for three reasons. First, the parties contend that Plaintiff’s motion to remand necessitates a continuance because it would “potentially spare the parties and the District Court from consuming time, effort, and resources in preparing for and conducting the ENE,” since “the court’s ruling on Plaintiff’s motion to remand may eliminate further proceedings” in this court. ECF No. 9 at 2. Second, the parties represent to the Court that Plaintiff is scheduled to have shoulder replacement surgery on July 1, 2024, and will not be fully recovered in time for the July 10 ENE. Id. Third, Plaintiff’s counsel notes that he needs more time to complete his initial disclosures, due to delays in receiving information from various health care providers. Id. at 2–3. As such, the parties request that the ENE and CMC be continued to a date after July 29, 2024. Id. at 3. The Court is unpersuaded that a pending motion to remand would provide good cause for a continuance, and notes that it routinely holds ENEs and settlement conferences with motions pending. However, the Court finds good cause for a continuance due to Plaintiff’s shoulder surgery. As such, the joint motion is GRANTED IN PART as follows: 1. The ENE originally scheduled for July 10, 2024, is RESET for August 9, 2024 at 2:00 p.m. via videoconference before Magistrate Judge Allison H. Goddard. In accordance with the Local Rules, the Court requires attendance of all parties, party representatives, including claims adjusters for insured defendants, and the primary attorney(s) responsible for the litigation via videoconference. CivLR 16.1(c)(1). / / 2. Purpose of the Conference: The purpose of the ENE is to permit an informal discussion between the attorneys and the settlement judge of every aspect of the lawsuit in an effort to achieve an early resolution of the case. All conference discussions will be informal, off the record, and confidential. 3. Full Settlement Authority Required: A party or party representative with full and complete authority to enter into a binding settlement must be present via videoconference. Full authority to settle means that a person must be authorized to fully explore settlement options and to agree at that time to any settlement terms acceptable to the parties. Heileman Brewing Co., Inc. 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 (D. Ariz. 2003). Limited or sum certain authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595–97 (8th Cir. 2001). A person who needs to call another person who is not present on the videoconference before agreeing to any settlement does not have full authority. 4. Confidential ENE Statements Required: No later than August 2, 2024, the parties shall submit confidential statements of five (5) pages or less directly to the chambers of Magistrate Judge Goddard outlining the nature of the case, the claims, and the defenses. These statements shall not be filed or served on opposing counsel. They shall be lodged via email at efile_goddard@casd.uscourts.gov. The ENE statement is limited to five (5) pages or less, and up to five (5) pages of exhibits or declarations. Each party’s ENE statement must outline: A. the nature of the case and the claims, B. position on liability or defense, C. position regarding settlement of the case with a specific1
1 A general statement, such as that a party “will negotiate in good faith,” is a not a specific demand/offer for settlement, and D. any previous settlement negotiations or mediation efforts. 5. Case Management Conference: In the event the case does not settle at the ENE, the Court will immediately thereafter hold a Case Management Conference (“CMC”) pursuant to Fed. R. Civ. P. 16(b). Appearance of the parties at the CMC is not required. The Court orders the following to occur before the CMC: A. The parties must meet and confer pursuant to Fed. R. Civ. P. 26(f) no later than June 17, 2024. The parties represented to the Court that they completed this requirement on June 11, 2024. ECF No. 9-1 at 2. B. The parties must file a Joint Case Management Statement by August 1, 2024. The Joint Case Management Statement must address all points in the “Joint Case Management Statement Requirements for Magistrate Judge Allison H. Goddard,” which can be found on the court website at: https://www.casd.uscourts.gov/Judges/goddard/docs/Goddard%20Join t%20Case%20Management%20Statement%20Rules.pdf. C. Initial disclosures pursuant to Rule 26(a)(1)(A-D) must occur by July 29, 2024. 6. Appearances via Videoconference Required: All named parties, party representatives, including claims adjusters for insured defendants, as well as principal attorney(s) responsible for the litigation must attend the ENE via videoconference. All who attend the ENE must be legally and factually prepared to discuss and resolve the case. Counsel appearing without their clients (whether or not counsel has been given settlement authority) will be subject to immediate imposition of sanctions. To facilitate the
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 videoconference ENE, the Court hereby orders as follows: A. The Court will use its official Zoom video conferencing account to hold the ENE. If you are unfamiliar with Zoom: Zoom is available on computers through a download on the Zoom website (https://zoom.us/meetings) or on mobile devices through the installation of a free app.3 Joining a Zoom conference does not require creating a Zoom account, but it does require downloading the .exe file (if using a computer) or the app (if using a mobile device). Participants are encouraged to create an account, install Zoom and familiarize themselves with Zoom in advance of the ENE.4 There is a cost-free option for creating a Zoom account. B. Prior to the start of the ENE, the Court will email each participant an invitation to join a Zoom video conference. Again, if possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. Participants shall join the video conference by following the ZoomGov Meeting hyperlink in the invitation. Participants who do not have Zoom already installed on their device when they click on the ZoomGov Meeting hyperlink will be prompted to download and install Zoom before proceeding. Zoom may then prompt participants to enter the password included in the invitation. / /
3 If possible, participants are encouraged to use laptops or desktop computers for the video conference, rather than mobile devices.
4 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- us/categories/200101697-Getting-Started C. Each participant should plan to join the Zoom video conference at least five minutes before the start of the ENE to ensure that the conference begins promptly at 2:00 p.m. D. Zoom’s functionalities will allow the Court to conduct the ENE as it ordinarily would conduct an in-person one. The Court will divide participants into separate, confidential sessions, which Zoom calls Breakout Rooms.5 In a Breakout Room, the Court will be able to communicate with participants from a single party in confidence. Breakout Rooms will also allow parties and counsel to communicate confidentially without the Court. E. No later than August 2, 2024, counsel for each party shall send an e-mail to the Court at efile_goddard@casd.uscourts.gov containing the following: i. The name and title of each participant, including all parties and party representatives with full settlement authority, claims adjusters for insured defendants, and the primary attorney(s) responsible for the litigation; ii. An e-mail address for each participant to receive the Zoom video conference invitation; iii. A telephone number where each participant may be reached; and iv. A cell phone number for that party’s preferred point of contact (and the name of the individual whose cell phone it is) for the Court to use during the ENE to alert counsel via text message that the Court will soon return to that party’s Breakout
5 For more information on what to expect when participating in a Zoom Breakout Room, to avoid any unexpected interruptions of confidential discussions. F., All participants shall display the same level of professionalism during the ENE and be prepared to devote their full attention to the ENE as if they were attending in person, 1.e., cannot be driving or in a car while speaking to the Court. Because Zoom may quickly deplete the battery of a participant’s device, each participant should ensure that their device is plugged in or that a charging cable is readily available during the video conference. G. Counsel are advised that although the ENE will take place on Zoom, all participants shall appear and conduct themselves as if it is proceeding in a courtroom, 1.e., all participants must dress in appropriate courtroom attire. H. If the case does not settle during the ENE, the Court will hold the CMC immediately following the ENE with counsel only in the main session. 7. New _ Parties Must be Notified by Plaintiff or Plaintiffs Counsel: Plaintiff’s counsel must give notice of the ENE to any Defendants who have been served but who have not yet filed responsive pleadings as of the date of this Order. If any Defendants have not yet been served, Plaintiff's counsel must serve them with a copy of this Order along with the summons and complaint. 8. The failure of any party to follow these mandatory procedures shall result the imposition of sanctions. 9. Questions regarding this case or these mandatory guidelines may be directed Judge Goddard’s law clerks at (619) 557-6162. Lodged statements should be emailed to efile_goddard @casd.uscourts.gov. Dated: June 27, 2024 VWioerw +H. oviolan A Honorable Allison H. Goddard United States Magistrate Judge