2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JILL DONALD WATKINS, Case No.: 20cv717-L(MSB)
12 Plaintiff, ORDER GRANTING JOINT MOTION TO 13 v. CONTINUE EARLY NEUTRAL EVALUATION CONFERENCE AND 14 DOLLAR TREE INC., et al., RELATED DEADLINES [ECF NO. 27] 15 Defendants. 16 17 18 On June 1, 2021, the parties filed a “Joint Motion to Continue Early Neutral 19 Evaluation Conference.” (ECF No. 27.) They ask the Court to continue the Early Neutral 20 Evaluation Conference (“ENE”) currently scheduled for June 23, 2021, at 1:30 p.m. by 21 two months. (Id. at 2.) In support, the parties state that “beyond th[e] information 22 plead” in Plaintiff’s First Amended Complaint, “Defendant is unaware of the full nature 23 and extent of Plaintiff’s injuries and the facts and circumstances relative to the 24 occurrence of the incident, and requires discovery on these issues to obtain a clearer 25 picture of same in order to evaluate the claim for settlement purposes.” (Id.) They 26 further contend that “Defendant is unable to evaluate both liability issues and 27 [P]laintiff’s claimed injuries, as same remain unknown[,]” and the parties are therefore 2 ENE.” (Id. at 3.) 3 Having considered the parties’ joint motion and finding good cause, the Court 4 GRANTS the motion. Accordingly, the Court CONTINUES the ENE, as well as the Case 5 Management Conference (“CMC”), currently scheduled for June 23, 2021, at 1:30 p.m., 6 until August 25, 2021, at 9:30 a.m. The Court further issues the following ORDERS: 7 The ENE will be hosted through the Court’s ZoomGov account. All discussions at 8 the ENE Conference will be informal, off the record, privileged, and confidential. 9 Counsel for any non-English speaking party is responsible for arranging for the 10 appearance of an interpreter at the conference. The following rules and deadlines 11 apply: 12 1. Personal Appearance of Parties Required: All named parties, party 13 representatives, including claims adjusters for insured defendants, as well as the 14 principal attorney(s) responsible for the litigation, must participate in the video 15 conference, and be legally and factually prepared to discuss and resolve the case. 16 Counsel appearing without their clients (whether or not counsel has been given 17 settlement authority) will be cause for immediate imposition of sanctions and may also 18 result in the immediate termination of the conference. 19 2. Full Settlement Authority Required: A party or party representative with 20 full settlement authority1 must be present at the conference. Retained outside 21 corporate counsel shall not appear on behalf of a corporation as the party 22
23 1 “Full settlement authority” means that the individuals at the settlement conference must be 24 authorized to fully explore settlement options and to agree at that time to any settlement terms 25 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 26 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 contemplates that the person’s 27 view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum 2 3. Confidential ENE Statements Required: No later than August 18, 2021, the 3 parties shall submit directly to Magistrate Judge Berg’s chambers (via hand delivery or 4 by e-mail to the Court at efile_berg@casd.uscourts.gov), confidential settlement 5 statements. The ENE statement is limited to five (5) pages or less, and up to five (5) 6 pages of exhibits or declarations. Each party’s ENE statement must outline (1) the 7 nature of the case and the claims, (2) position on liability or defense, (3) position 8 regarding settlement of the case with a specific demand/offer for settlement, and 9 (4) any previous settlement negotiations or mediation efforts. 10 If a specific demand or offer cannot be made at the time the ENE statement is 11 submitted, then the reasons as to why a demand or offer cannot be made must be 12 stated. Further, the party must explain when they will be in a position to state a 13 demand or offer. General statements such as a party will “negotiate in good faith” is 14 not a specific demand or offer. The ENE statement should be submitted confidentially 15 and need not be shared with other parties. 16 4. The Court will use its official Zoom video conferencing account to hold the 17 ENE. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on computers through a 18 download on the Zoom website (https://zoom.us/meetings) or on mobile devices 19 through the installation of a free app.2 Joining a Zoom conference does not require 20 creating a Zoom account, but it does require downloading the .exe file (if using a 21 computer) or the app (if using a mobile device). Participants are encouraged to create 22 an account, install Zoom, and familiarize themselves with Zoom in advance of the ENE.3 23 There is a cost-free option for creating a Zoom account. 24
25 26 2 If possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. 27 2 invitation to join a Zoom video conference. Again, if possible, participants are 3 encouraged to use laptops or desktop computers for the video conference, as mobile 4 devices often offer inferior performance. Participants shall join the video conference by 5 following the ZoomGov Meeting hyperlink in the invitation. Participants who do not 6 have Zoom already installed on their device when they click on the ZoomGov Meeting 7 hyperlink will be prompted to download and install Zoom before proceeding. Zoom 8 may then prompt participants to enter the password included in the invitation. All 9 participants will be placed in a waiting room until the ENE begins. 10 6. Each participant should plan to join the Zoom video conference at least five 11 minutes before the start of the ENE to ensure that the ENE begins promptly at 9:30 a.m. 12 The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin at 13 the Court-scheduled time. 14 7. Zoom’s functionalities will allow the Court to conduct the ENE as it 15 ordinarily would conduct an in-person ENE. That is, the Court will begin the ENE with all 16 participants joined together in a main session. After an initial discussion in the main 17 session, the Court will divide participants into separate, confidential sessions, which 18 Zoom calls Breakout Rooms.4 In a Breakout Room, the Court will be able to 19 communicate with participants from a single party in confidence. Breakout Rooms will 20 also allow parties and counsel to communicate confidentially without the Court. 21 8. No later than August 18, 2021, counsel for each party shall send an e-mail 22 to the Court at efile_berg@casd.uscourts.gov containing the following: 23 a. The name and title of each participant, including all parties and 24 party representatives with full settlement authority, claims adjusters for insured 25 defendants, and the primary attorney(s) responsible for the litigation; 26
27 2 conference invitation; and 3 c. A telephone number where each participant may be reached so that 4 if technical difficulties arise, the Court will be able to proceed telephonically instead of 5 by video conference.
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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JILL DONALD WATKINS, Case No.: 20cv717-L(MSB)
12 Plaintiff, ORDER GRANTING JOINT MOTION TO 13 v. CONTINUE EARLY NEUTRAL EVALUATION CONFERENCE AND 14 DOLLAR TREE INC., et al., RELATED DEADLINES [ECF NO. 27] 15 Defendants. 16 17 18 On June 1, 2021, the parties filed a “Joint Motion to Continue Early Neutral 19 Evaluation Conference.” (ECF No. 27.) They ask the Court to continue the Early Neutral 20 Evaluation Conference (“ENE”) currently scheduled for June 23, 2021, at 1:30 p.m. by 21 two months. (Id. at 2.) In support, the parties state that “beyond th[e] information 22 plead” in Plaintiff’s First Amended Complaint, “Defendant is unaware of the full nature 23 and extent of Plaintiff’s injuries and the facts and circumstances relative to the 24 occurrence of the incident, and requires discovery on these issues to obtain a clearer 25 picture of same in order to evaluate the claim for settlement purposes.” (Id.) They 26 further contend that “Defendant is unable to evaluate both liability issues and 27 [P]laintiff’s claimed injuries, as same remain unknown[,]” and the parties are therefore 2 ENE.” (Id. at 3.) 3 Having considered the parties’ joint motion and finding good cause, the Court 4 GRANTS the motion. Accordingly, the Court CONTINUES the ENE, as well as the Case 5 Management Conference (“CMC”), currently scheduled for June 23, 2021, at 1:30 p.m., 6 until August 25, 2021, at 9:30 a.m. The Court further issues the following ORDERS: 7 The ENE will be hosted through the Court’s ZoomGov account. All discussions at 8 the ENE Conference will be informal, off the record, privileged, and confidential. 9 Counsel for any non-English speaking party is responsible for arranging for the 10 appearance of an interpreter at the conference. The following rules and deadlines 11 apply: 12 1. Personal Appearance of Parties Required: All named parties, party 13 representatives, including claims adjusters for insured defendants, as well as the 14 principal attorney(s) responsible for the litigation, must participate in the video 15 conference, and be legally and factually prepared to discuss and resolve the case. 16 Counsel appearing without their clients (whether or not counsel has been given 17 settlement authority) will be cause for immediate imposition of sanctions and may also 18 result in the immediate termination of the conference. 19 2. Full Settlement Authority Required: A party or party representative with 20 full settlement authority1 must be present at the conference. Retained outside 21 corporate counsel shall not appear on behalf of a corporation as the party 22
23 1 “Full settlement authority” means that the individuals at the settlement conference must be 24 authorized to fully explore settlement options and to agree at that time to any settlement terms 25 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 26 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 contemplates that the person’s 27 view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum 2 3. Confidential ENE Statements Required: No later than August 18, 2021, the 3 parties shall submit directly to Magistrate Judge Berg’s chambers (via hand delivery or 4 by e-mail to the Court at efile_berg@casd.uscourts.gov), confidential settlement 5 statements. The ENE statement is limited to five (5) pages or less, and up to five (5) 6 pages of exhibits or declarations. Each party’s ENE statement must outline (1) the 7 nature of the case and the claims, (2) position on liability or defense, (3) position 8 regarding settlement of the case with a specific demand/offer for settlement, and 9 (4) any previous settlement negotiations or mediation efforts. 10 If a specific demand or offer cannot be made at the time the ENE statement is 11 submitted, then the reasons as to why a demand or offer cannot be made must be 12 stated. Further, the party must explain when they will be in a position to state a 13 demand or offer. General statements such as a party will “negotiate in good faith” is 14 not a specific demand or offer. The ENE statement should be submitted confidentially 15 and need not be shared with other parties. 16 4. The Court will use its official Zoom video conferencing account to hold the 17 ENE. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on computers through a 18 download on the Zoom website (https://zoom.us/meetings) or on mobile devices 19 through the installation of a free app.2 Joining a Zoom conference does not require 20 creating a Zoom account, but it does require downloading the .exe file (if using a 21 computer) or the app (if using a mobile device). Participants are encouraged to create 22 an account, install Zoom, and familiarize themselves with Zoom in advance of the ENE.3 23 There is a cost-free option for creating a Zoom account. 24
25 26 2 If possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. 27 2 invitation to join a Zoom video conference. Again, if possible, participants are 3 encouraged to use laptops or desktop computers for the video conference, as mobile 4 devices often offer inferior performance. Participants shall join the video conference by 5 following the ZoomGov Meeting hyperlink in the invitation. Participants who do not 6 have Zoom already installed on their device when they click on the ZoomGov Meeting 7 hyperlink will be prompted to download and install Zoom before proceeding. Zoom 8 may then prompt participants to enter the password included in the invitation. All 9 participants will be placed in a waiting room until the ENE begins. 10 6. Each participant should plan to join the Zoom video conference at least five 11 minutes before the start of the ENE to ensure that the ENE begins promptly at 9:30 a.m. 12 The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin at 13 the Court-scheduled time. 14 7. Zoom’s functionalities will allow the Court to conduct the ENE as it 15 ordinarily would conduct an in-person ENE. That is, the Court will begin the ENE with all 16 participants joined together in a main session. After an initial discussion in the main 17 session, the Court will divide participants into separate, confidential sessions, which 18 Zoom calls Breakout Rooms.4 In a Breakout Room, the Court will be able to 19 communicate with participants from a single party in confidence. Breakout Rooms will 20 also allow parties and counsel to communicate confidentially without the Court. 21 8. No later than August 18, 2021, counsel for each party shall send an e-mail 22 to the Court at efile_berg@casd.uscourts.gov containing the following: 23 a. The name and title of each participant, including all parties and 24 party representatives with full settlement authority, claims adjusters for insured 25 defendants, and the primary attorney(s) responsible for the litigation; 26
27 2 conference invitation; and 3 c. A telephone number where each participant may be reached so that 4 if technical difficulties arise, the Court will be able to proceed telephonically instead of 5 by video conference. (If counsel prefers all participants of their party on a single 6 conference call, counsel may provide a conference number and appropriate call-in 7 information, including an access code, where all counsel and parties or party 8 representatives for that side may be reached as an alternative to providing individual 9 telephone numbers for each participant.) 10 9. All participants shall display the same level of professionalism during the 11 ENE and be prepared to devote their full attention to the ENE as if they were attending 12 in person. Because Zoom may quickly deplete the battery of a participant’s device, each 13 participant should ensure that their device is plugged in or that a charging cable is 14 readily available during the video conference. 15 10. New Parties Must be Notified by Plaintiff or Plaintiff’s Counsel: Plaintiff’s 16 counsel shall give notice of the ENE to parties responding to the complaint after the 17 date of this notice. 18 11. Requests to Continue an ENE Conference: Local Rule 16.1(c) requires that 19 an ENE take place within forty-five (45) days of the filing of the first answer. Requests to 20 continue ENEs are rarely granted. An ENE may be rescheduled only upon a showing of 21 good cause and adequate notice to the Court. Absent good cause, requests for 22 continuances will not be considered unless submitted in writing no fewer than seven 23 (7) calendar days prior to the scheduled conference. 24 / / / 25 / / / 26 / / / 27 / / / 1 12. Case Management Conference: If the case does not settle during the ENE, 2 Court will conduct a CMC at the conclusion of the ENE. 3 IT IS SO ORDERED. 4 ||Dated: June 1, 2021 _
6 Honorable Michael S. Berg United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28