1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 REGINALD WAYNE WHATLEY, Case No.: 18-cv-02761-CAB (DEB)
12 Plaintiff, ORDER PROVIDING UPDATED 13 v. PROCEDURES FOR MANDATORY SETTLEMENT CONFERENCE 14 G. VALDINOS, et al.,
15 Defendants. 16
17 The Court issues the following updated instructions for the Mandatory Settlement 18 Conference (“MSC”) on January 20, 2021 at 1:30 p.m. 19 1. Purpose of the MSC: The purpose of the MSC is to permit an informal 20 discussion between the attorneys, parties, and the Magistrate Judge of every aspect of the 21 lawsuit in an effort to achieve an early resolution of the case. Counsel attending the MSC 22 are expected to have a command of the facts and applicable law. Counsel and the parties 23 must be prepared to engage in a detailed discussion of the merits of their respective cases 24 and engage in good faith settlement discussions. All discussions during the MSC are 25 informal, off the record, privileged and confidential. Counsel for any non-English 26 speaking party is responsible for arranging for the appearance of an interpreter at the 27 conference. 28 1 2. Full Settlement Authority Is Required: Pursuant to Local Rule 16.3.b., all 2 parties, party representatives, including claims adjusters for insured parties, and the 3 principal attorney(s) responsible for the litigation must participate in the MSC.1 This 4 appearance must be made with full and unlimited authority to negotiate and enter into a 5 binding settlement.2 In the case of a corporate entity, an authorized representative of the 6 corporation who is not retained outside counsel must be present and must have 7 discretionary authority to commit the company to pay an amount up to the amount of the 8 plaintiff’s prayer (excluding punitive damage prayers). The purpose of this requirement is 9 to have representatives present who can settle the case during the course of the conference 10 without consulting a superior. 11 Counsel for a government entity may be excused from this requirement so long as 12 the government attorney who participates in the MSC (1) has primary responsibility for 13 handling the case; and (2) may negotiate settlement offers that the attorney is willing to 14 recommend to the government official having ultimate settlement authority. 15 3. Procedure for Zoom Videoconference Appearance: Although the Court 16 typically requires personal attendance of all participants, due to the COVID-19 public 17 emergency, the Court will use its Zoom video conferencing account to hold the MSC. 18 19 20 1 The attendance requirement includes parties that are indemnified by others. Any 21 deviation from this Order requires prior Court approval.
22 2 Full authority to settle means that the individuals at the MSC are authorized to fully 23 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. 24 1989). The person needs to have “unfettered discretion and authority” to change the 25 settlement position of a party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485-486 (D. Ariz. 2003). One of the purposes of requiring a person with unlimited settlement authority 26 to attend the conference is that the person’s view of the case may be altered during the 27 face-to-face conference. Pitman, 216 F.R.D. at 486. Limited or sum certain authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-597 (8th Cir. 2001). 28 1 If you are unfamiliar with Zoom: Zoom is available on computers through a 2 download on the Zoom website (https://zoom.us/meetings) or on mobile devices through 3 the installation of a free app.3 Joining a Zoom conference does not require creating a Zoom 4 account, but it does require downloading the .exe file (if using a computer) or the app (if 5 using a mobile device). Participants are encouraged to create an account, install Zoom and 6 familiarize themselves with Zoom in advance of the MSC.4 There is a cost-free option for 7 creating a Zoom account. 8 Prior to the start of the MSC, the Court will email each participant an invitation to 9 join a Zoom video conference. Participants must join the video conference by following 10 the ZoomGov Meeting hyperlink in the invitation. Participants who do not have Zoom 11 already installed on their device when they click on the ZoomGov Meeting hyperlink will 12 be prompted to download and install Zoom before proceeding. Zoom may then prompt 13 participants to enter the password included in the invitation. All participants will be placed 14 in a waiting room until the MSC begins. 15 Each participant should plan to join the Zoom video conference at least five minutes 16 before the start of the MSC to ensure that the conference begins on time. The Zoom e- 17 mail invitation may indicate an earlier start time, but the MSC will begin at the time 18 scheduled by the Court. 19 Zoom’s functionalities will allow the Court to conduct the MSC as it ordinarily 20 would conduct an in-person one. The Court will divide participants into separate, 21 confidential sessions, which Zoom calls Breakout Rooms.5 In a Breakout Room, the Court 22 23 3 Participants are encouraged to use laptops or desktop computers for the video 24 conference, if possible, as mobile devices often offer inferior performance. 25 4 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- 26 us/categories/200101697-Getting-Started 27 5 For more information on what to expect when participating in a Zoom Breakout 28 1 will be able to communicate with participants from a single party in confidence. Breakout 2 Rooms will also allow parties and counsel to communicate confidentially outside the 3 presence of the Court. 4 No later than January 13, 2021 counsel for each party must send an e-mail to the 5 Court at efile_butcher@casd.uscourts.gov containing the following: 6 a. The name and title of each participant, including all parties and party 7 representatives with full settlement authority, claims adjusters for insured 8 defendants, and the primary attorney(s) responsible for the litigation; 9 b. An e-mail address for each participant to receive the Zoom video conference 10 invitation; and 11 c. A telephone number where each participant may be reached so that if 12 technical difficulties arise, the Court will be in a position to proceed 13 telephonically instead of by video conference. (If counsel prefers to have all 14 participants of their party on a single conference call, counsel may provide a 15 conference number and appropriate call-in information, including an access 16 code, where all counsel and parties or party representatives for that side may 17 be reached as an alternative to providing individual telephone numbers for 18 each participant.) 19 Counsel are responsible for ensuring their clients are able to participate in the MSC. 20 All participants must display the same level of professionalism during the MSC and be 21 prepared to devote their full attention to the MSC as if they were attending in person (e.g., 22 not be driving while speaking to the Court, or otherwise distracted). Because Zoom may 23 quickly deplete the battery of a participant’s device, each participant should ensure that 24 their device is plugged in or that a charging cable is readily available during the video 25 conference. 26 4. Plaintiff’s Appearance: If Plaintiff is incarcerated in a penal institution or 27 other facility, the Plaintiff’s presence is not required at conferences before Magistrate 28 1 Judge Daniel E. Butcher, and the Plaintiff may appear by telephone.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 REGINALD WAYNE WHATLEY, Case No.: 18-cv-02761-CAB (DEB)
12 Plaintiff, ORDER PROVIDING UPDATED 13 v. PROCEDURES FOR MANDATORY SETTLEMENT CONFERENCE 14 G. VALDINOS, et al.,
15 Defendants. 16
17 The Court issues the following updated instructions for the Mandatory Settlement 18 Conference (“MSC”) on January 20, 2021 at 1:30 p.m. 19 1. Purpose of the MSC: The purpose of the MSC is to permit an informal 20 discussion between the attorneys, parties, and the Magistrate Judge of every aspect of the 21 lawsuit in an effort to achieve an early resolution of the case. Counsel attending the MSC 22 are expected to have a command of the facts and applicable law. Counsel and the parties 23 must be prepared to engage in a detailed discussion of the merits of their respective cases 24 and engage in good faith settlement discussions. All discussions during the MSC are 25 informal, off the record, privileged and confidential. Counsel for any non-English 26 speaking party is responsible for arranging for the appearance of an interpreter at the 27 conference. 28 1 2. Full Settlement Authority Is Required: Pursuant to Local Rule 16.3.b., all 2 parties, party representatives, including claims adjusters for insured parties, and the 3 principal attorney(s) responsible for the litigation must participate in the MSC.1 This 4 appearance must be made with full and unlimited authority to negotiate and enter into a 5 binding settlement.2 In the case of a corporate entity, an authorized representative of the 6 corporation who is not retained outside counsel must be present and must have 7 discretionary authority to commit the company to pay an amount up to the amount of the 8 plaintiff’s prayer (excluding punitive damage prayers). The purpose of this requirement is 9 to have representatives present who can settle the case during the course of the conference 10 without consulting a superior. 11 Counsel for a government entity may be excused from this requirement so long as 12 the government attorney who participates in the MSC (1) has primary responsibility for 13 handling the case; and (2) may negotiate settlement offers that the attorney is willing to 14 recommend to the government official having ultimate settlement authority. 15 3. Procedure for Zoom Videoconference Appearance: Although the Court 16 typically requires personal attendance of all participants, due to the COVID-19 public 17 emergency, the Court will use its Zoom video conferencing account to hold the MSC. 18 19 20 1 The attendance requirement includes parties that are indemnified by others. Any 21 deviation from this Order requires prior Court approval.
22 2 Full authority to settle means that the individuals at the MSC are authorized to fully 23 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. 24 1989). The person needs to have “unfettered discretion and authority” to change the 25 settlement position of a party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485-486 (D. Ariz. 2003). One of the purposes of requiring a person with unlimited settlement authority 26 to attend the conference is that the person’s view of the case may be altered during the 27 face-to-face conference. Pitman, 216 F.R.D. at 486. Limited or sum certain authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-597 (8th Cir. 2001). 28 1 If you are unfamiliar with Zoom: Zoom is available on computers through a 2 download on the Zoom website (https://zoom.us/meetings) or on mobile devices through 3 the installation of a free app.3 Joining a Zoom conference does not require creating a Zoom 4 account, but it does require downloading the .exe file (if using a computer) or the app (if 5 using a mobile device). Participants are encouraged to create an account, install Zoom and 6 familiarize themselves with Zoom in advance of the MSC.4 There is a cost-free option for 7 creating a Zoom account. 8 Prior to the start of the MSC, the Court will email each participant an invitation to 9 join a Zoom video conference. Participants must join the video conference by following 10 the ZoomGov Meeting hyperlink in the invitation. Participants who do not have Zoom 11 already installed on their device when they click on the ZoomGov Meeting hyperlink will 12 be prompted to download and install Zoom before proceeding. Zoom may then prompt 13 participants to enter the password included in the invitation. All participants will be placed 14 in a waiting room until the MSC begins. 15 Each participant should plan to join the Zoom video conference at least five minutes 16 before the start of the MSC to ensure that the conference begins on time. The Zoom e- 17 mail invitation may indicate an earlier start time, but the MSC will begin at the time 18 scheduled by the Court. 19 Zoom’s functionalities will allow the Court to conduct the MSC as it ordinarily 20 would conduct an in-person one. The Court will divide participants into separate, 21 confidential sessions, which Zoom calls Breakout Rooms.5 In a Breakout Room, the Court 22 23 3 Participants are encouraged to use laptops or desktop computers for the video 24 conference, if possible, as mobile devices often offer inferior performance. 25 4 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- 26 us/categories/200101697-Getting-Started 27 5 For more information on what to expect when participating in a Zoom Breakout 28 1 will be able to communicate with participants from a single party in confidence. Breakout 2 Rooms will also allow parties and counsel to communicate confidentially outside the 3 presence of the Court. 4 No later than January 13, 2021 counsel for each party must send an e-mail to the 5 Court at efile_butcher@casd.uscourts.gov containing the following: 6 a. The name and title of each participant, including all parties and party 7 representatives with full settlement authority, claims adjusters for insured 8 defendants, and the primary attorney(s) responsible for the litigation; 9 b. An e-mail address for each participant to receive the Zoom video conference 10 invitation; and 11 c. A telephone number where each participant may be reached so that if 12 technical difficulties arise, the Court will be in a position to proceed 13 telephonically instead of by video conference. (If counsel prefers to have all 14 participants of their party on a single conference call, counsel may provide a 15 conference number and appropriate call-in information, including an access 16 code, where all counsel and parties or party representatives for that side may 17 be reached as an alternative to providing individual telephone numbers for 18 each participant.) 19 Counsel are responsible for ensuring their clients are able to participate in the MSC. 20 All participants must display the same level of professionalism during the MSC and be 21 prepared to devote their full attention to the MSC as if they were attending in person (e.g., 22 not be driving while speaking to the Court, or otherwise distracted). Because Zoom may 23 quickly deplete the battery of a participant’s device, each participant should ensure that 24 their device is plugged in or that a charging cable is readily available during the video 25 conference. 26 4. Plaintiff’s Appearance: If Plaintiff is incarcerated in a penal institution or 27 other facility, the Plaintiff’s presence is not required at conferences before Magistrate 28 1 Judge Daniel E. Butcher, and the Plaintiff may appear by telephone. In that case, defense 2 counsel is to coordinate the Plaintiff’s appearance by telephone. 3 5. Confidential MSC Statements Required: No later than one week before 4 the MSC, each party must lodge a Confidential MSC Statement by email to 5 efile_butcher@casd.uscourts.gov. The MSC statement must not exceed ten (10) pages, 6 excluding exhibits. If exhibits are attached, the parties are encouraged to highlight the 7 relevant portions. 8 The Court does not require MSC Statements to be served on other parties; however, 9 the parties may elect to share their MSC Statements at their discretion. These statements 10 are not to be filed on the CM/ECF system. 11 All confidential MSC Statements must include: 12 a. the party’s position on liability and damages supported by relevant facts, a 13 discussion of the significant facts established during discovery, and legal 14 analysis with citations to controlling legal authority. The parties are also 15 encouraged to attach a chronology setting forth a timeline of the events at 16 issue. If submitted, the chronology should be in a chart or column format with 17 the column headings “DATE” and “EVENT.” The chronology is not counted 18 against the page limits; 19 b. for plaintiff(s), a specific and current settlement demand addressing all relief 20 sought and an itemization of the damages sought, and, for defendant(s), a 21 specific and current offer and the bases for that offer. (Note: a general 22 statement that a party will “negotiate in good faith,” “offer a nominal cash 23 sum,” or “be prepared to make a demand or offer at the conference” is not a 24 specific demand or offer. If a specific offer or demand cannot be made at the 25 MSC or settlement conference, state the reasons why and explain what 26 additional information is required to make a settlement demand or offer.); 27 c. a brief description of any previous settlement negotiations or mediations; and 28 1 d. the names of attorney(s) and non-attorney(s) who will attend the conference, 2 including the name(s) and_ title(s)/position(s) of the party/party 3 representative(s). 4 6. Requests to Continue MSC: A request for continuance may be initiated by 5 ||counsel placing a joint call to the Court’s Chambers. Any request for a continuance must 6 ||be made as soon as counsel is aware of the circumstances that warrant rescheduling the 7 || conference. 8 Questions regarding this case or the mandatory guidelines set forth herein may be 9 || directed to the Magistrate Judge’s law clerks at (619) 446-3704. 10 IT IS SO ORDERED. 11 ||Dated: December 18, 2020 — 12 wudGedinfdlnn. 13 Honorable Daniel E. Butcher United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28