Thomas v. Montgomery

Opinion

ALBERT THOMAS, Case No.: 18-cv-01835-GPC (JLB)

Plaintiff, ORDER GRANTING EX PARTE v. MOTION TO MODIFY SCHEDULING ORDER W.L. MONTGOMERY, et al.,

Defendants. [ECF No. 40] Before the Court is Defendants’ ex parte motion to modify the scheduling order. (ECF No. 40.) Defendants request a 45-day continuance of the Mandatory Settlement Conference currently scheduled for October 28, 2020. (Id. at 1.) Good cause appearing, the motion is GRANTED. Accordingly, the scheduling order (ECF No. 30) is modified as follows: A Mandatory Settlement Conference shall be conducted on December 16, 2020, at 9:00 AM, before Magistrate Judge Jill L. Burkhardt in Room 5180 of the Edward J. Schwartz U.S. Courthouse, 221 West Broadway, San Diego, California 92101. Defendants and defense counsel shall personally attend the settlement conference. Plaintiff shall appear by video conference. Counsel for Defendants shall assist in coordinating the arrangements for Plaintiff’s video conference. The parties or their counsel, if represented, shall LODGE confidential settlement statements in accordance with Magistrate Judge Burkhardt’s Civil Chambers Rules no later than December 7, 2020. The confidential settlement statements should be lodged by e- mail to efile_Burkhardt@casd.uscourts.gov. However, if e-mail is unavailable, settlement conference statements may be lodged by mail to the U.S. District Court, Southern District of California, Office of the Clerk, Attn: Magistrate Judge Burkhardt’s Chambers, 333 West Broadway, Suite 420, San Diego, California 92101. Settlement conference statements shall not be filed via the CM/ECF system. Settlement conference statements may be exchanged confidentially with opposing counsel within the parties’ discretion. Each party’s settlement statement shall concisely set forth the following: (1) the party’s statement of the case; (2) the controlling legal issues; (3) issues of liability and damages; (4) the party’s settlement position, including the last offer or demand made by that party; (5) a separate statement of the offer or demand the party is prepared to make at the settlement conference; and (6) a list of all attorney and non-attorney attendees for the Conference, including person(s) and their title(s) or position(s) with the party who will attend and have settlement authority at the conference. If exhibits are attached and the total submission amounts to more than 20 pages, a hard copy must also be delivered directly to Magistrate Judge Burkhardt’s chambers. Pursuant to Local Civil Rule 16.3, all party representatives and claims adjusters for insured defendants with full and unlimited authority1 to negotiate and enter into a binding

1 “Full authority to settle” means that the individuals at the settlement conference 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 (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). The purpose of requiring a person with unlimited settlement authority to attend the conference includes that the person’s view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum certain settlement, as well as the principal attorney(s) responsible for the litigation, must be present legally and factually prepared to discuss and resolve the case at the mandatory settlement conference. In the case of a corporate entity, an authorized representative of the corporation who is not retained outside counsel must be present and must have discretionary authority to commit the company to pay an amount up to the amount of the Plaintiff's prayer, excluding punitive damages prayers. The purpose of this requirement is have representatives present who can settle the case during the course of the conference without consulting a superior. Failure to attend the conference or obtain proper excuse will be considered grounds for sanctions. Dated: October 23, 2020 bende n. Jill L. Burkhardt ited States Magistrate Judge