Corvera Hernandez v. Ethicon, Inc. et al, No. 3:2016cv00914 - Document 34 (S.D. Cal. 2016)
Court Description: ORDER granting 32 the Parties' Joint Motion to Continue ENE Conference, Setting Rule 26 Compliance, and Notice of Case Management Conference. Joint Proposed Discovery due by 12/12/2016. Case Management Conference set for 12/16/2016 02:00 PM before Magistrate Judge Andrew G. Schopler. Early Neutral Evaluation set for 12/16/2016 02:00 PM before Magistrate Judge Andrew G. Schopler. Final Pretrial Conference set for 1/11/2018 01:30 PM before Judge Janis L. Sammartino. Mandatory Settlement Conference set for 11/30/2017 09:00 AM before Judge Janis L. Sammartino. Signed by Magistrate Judge Andrew G. Schopler on 10/27/2016. (kcm)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Julia Esther Corvera Hernandez , Case No.: 16-cv-00914-JLS-AGS ORDER GRANTING THE PARTIES’ JOINT MOTION TO CONTINUE ENE CONFERENCE, SETTING RULE 26 COMPLIANCE, AND NOTICE OF CASE MANAGEMENT CONFERENCE Plaintiff, 12 13 v. 14 Ethicon, Inc. et al, Defendants. 15 16 17 The Court has reviewed the Joint Motion to Continue ENE Conference. [Doc. 32.] 18 For good cause shown, the court GRANTS the motion and CONTINUES the Early 19 Neutral Evaluation conference currently scheduled for November 2, 2016, to 20 December 16, 2016, at 2:00 p.m. In the event the case does not settle at the ENE, a Case 21 Management Conference under Federal Rule of Civil Procedure 16(b) is set for 22 December 16, 2016, and will be held at the ENE’s conclusion. 23 The following are mandatory directions for the parties preparing for the ENE. 24 Absent express Court permission, and notwithstanding the pendency of any motion, 25 counsel must timely comply with the dates and deadlines ordered herein. 26 1. Purpose of the ENE: The purpose of the ENE is to permit an informal 27 discussion between the attorneys, parties, and the settlement judge of every aspect of the 28 lawsuit in an effort to achieve an early resolution of the case. All ENE discussions will be 1 16-cv-00914-JLS-AGS 1 informal, off the record, privileged, and confidential. 2 speaking parties is responsible for arranging for the appearance of an interpreter at the 3 ENE. 4 2. Counsel for any non-English Personal Appearance of Parties Required: All parties, adjusters for insured 5 defendants, and other representatives of a party having full settlement authority as 6 explained below, and the principal attorneys responsible for the litigation, must be present 7 in person and legally and factually prepared to discuss settlement of the case. Counsel 8 appearing without their clients (whether or not counsel has been given settlement authority) 9 will be cause for immediate imposition of sanctions and may also result in the immediate 10 termination of the ENE. If each of the principal attorneys responsible for the litigation is 11 not listed on the docket as an “ATTORNEY TO BE NOTICED,” then they each shall enter 12 their appearance on the docket as soon as practicable. 13 Unless there are extraordinary circumstances, persons required to attend the ENE 14 pursuant to this Order shall not be excused from personal attendance. Failure to appear at 15 the ENE will be grounds for sanctions. 16 3. Full Settlement Authority Required: In addition to counsel who will try the 17 case, a party or party representative with full settlement authority1 must be present for the 18 ENE. In the case of a corporate entity, an authorized representative of the corporation who 19 is not retained outside counsel must be present and must have discretionary authority to 20 commit the company to pay an amount up to the amount of the Plaintiff’s prayer (excluding 21 punitive damages prayers). The purpose of this requirement is to have representatives 22 23 24 25 26 27 28 “Full settlement authority” means that the individuals at the settlement conference must be authorized to explore settlement options fully and to agree at that time to any settlement 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 (D. Ariz. 2003). A limited or a sum certain of authority is not adequate. See Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-97 (8th Cir. 2001). 1 2 16-cv-00914-JLS-AGS 1 present who can settle the case during the course of the ENE without consulting a superior. 2 Counsel for a government entity may be excused from this requirement so long as the 3 government attorney who attends the ENE: (1) has primary responsibility for handling the 4 case; and (2) may negotiate settlement offers that the attorney is willing to recommend to 5 the government official having ultimate settlement authority. 6 4. ENE Statements Required: No later than three court days before the ENE, 7 the parties shall lodge statements of five pages or less directly to Judge Schopler’s 8 chambers outlining the nature of the case, the claims, the defenses, and the parties’ 9 positions regarding settlement of the case. The settlement position must include a specific 10 and current demand or offer addressing all relief or remedies sought. If a specific demand 11 or offer cannot be made at the time the brief is submitted, then the reasons must be stated 12 along with a statement as to when the party will be in a position to state a demand or offer. 13 A general statement that a party will “negotiate in good faith,” “offer a nominal cash sum,” 14 or “be prepared to make an offer at the conference” is not a specific demand or offer. The 15 statement shall also list all attorney and non-attorney conference attendees for that side, 16 including the name(s) and title(s)/position(s) of the party/party representative(s) who will 17 attend and have settlement authority at the conference. 18 ENE statements shall be lodged via email at efile_schopler@casd.uscourts.gov. If 19 exhibits are attached and the total submission amounts to more than 20 pages, a hard copy 20 must also be delivered directly to chambers. Whether these statements are submitted 21 confidentially or whether they are served on opposing counsel is within the parties’ 22 discretion. Statements of more than five pages may not be considered and may result in 23 sanctions. 24 5. Submission of Magistrate Judge Consent Form: No later than 25 November 2, 2016, each party must provide Plaintiff’s counsel with an executed copy of 26 the attached consent form, titled Notice, Consent, and Reference of a Civil Action to a 27 Magistrate Judge. If (and only if) all parties have consented to the reference to a Magistrate 28 Judge, the Court prefers that Plaintiff file the consent form(s) in paper format at the Clerk’s 3 16-cv-00914-JLS-AGS 1 Office by November 7, 2016, in order to facilitate easy administration. See Local Civil 2 Rule 73.1. If filed after that date, the ENE may be delayed. If the paper format filing 3 reflects consent by all parties, then the form(s) will be forwarded to the assigned district 4 judge for approval. The consent form(s) should not be filed with the court electronically 5 through its Case Management/Electronic Case Filing (CM/ECF) system. No consent form 6 will be made available, nor will its contents be made known to any judicial officer, unless 7 all parties have consented to the reference to a magistrate judge. The parties are free to 8 withhold consent without adverse substantive consequences. Questions related to the 9 consent form(s) should be directed only to the clerk’s office at (619) 557-5600. Please do 10 11 not call chambers’ staff with questions related to the consent form(s). 6. New Parties Must Be Notified by Plaintiff’s Counsel: Plaintiff’s counsel 12 will give notice of the ENE and this Order to parties responding to the complaint after the 13 date of this notice. 14 7. Case Management Under the Amended Federal Rules: The parties are 15 ordered to comply with Federal Rule of Civil Procedure 26 and proceed with the initial 16 disclosure process as follows: 17 18 19 20 a. Rule 26(f) Conference: The Rule 26(f) conference shall be completed on or before December 2, 2016. b. Initial Dislcosures: Initial disclosures under Rule 26(a)(1)(A-D) shall occur on or before December 9, 2016. 21 c. Joint Discovery Plan: A Joint Discovery Plan must be filed on the CM/ECF 22 system as well as lodged with Magistrate Judge Schopler by emailing the Plan 23 to efile_schopler@casd.uscourts.gov, on or before December 12, 2016. If the 24 Plan with its attachments exceeds 20 pages, a courtesy paper copy of the Plan 25 must be delivered to Judge Schopler’s Chambers. In addition to complying 26 with Chambers Rules, the Plan must identify whether and what good cause 27 (specific to this case) exists to modify the Court’s tentative schedule of 28 deadlines, which is as follows: 4 16-cv-00914-JLS-AGS 1 i. Filing of motions to amend pleadings and/or add parties: January 27, 2 2017; 3 ii. Fact discovery completion: April 7, 2017; 4 iii. Expert witness designations and disclosures: May 12, 2017; 5 iv. Rebuttal expert witness designations and disclosures: May 26, 2017; 6 v. Completion of expert discovery: August 10, 2017; 7 vi. Pretrial motions (inclusive of any motions addressing any Daubert 8 issues): September 11, 2017. Motions in limine are to be filed as 9 directed in the Local Rules, or as otherwise set by the District Judge; 10 vii. Mandatory Settlement Conference: November 30, 2017 at 9:00 a.m.; 11 viii. Mandatory Settlement Conference Briefs: November 22, 2017; 12 ix. Fedral Rule of Civil Procedure 26(a)(3) disclosures: December 14, 13 2017; 14 x. Meet and Confer on the PTO: December 21, 2017; 15 xi. Draft PTO to defense counsel: December 28, 2017; 16 xii. PTO loding: January 4, 2018; 17 xiii. Pretrial Conference before the District Judge assigned to the case: 18 January 11, 2018 at 1:30 p.m. 19 d. Discovery Limitations: The below-listed discovery limitations apply to each 20 side. If the parties wish to modify those limitations, they must set forth good 21 cause for doing so in the Joint Discovery plan. 22 i. Depositions: No more than 8; 23 ii. Interrogatories: No more than 25; 24 iii. Requests to Admit: No more than 25; and 25 iv. Requests for Production of Documents: No more than 25. 26 8. Requests to Continue or Reschedule an ENE: Local Rule 16.1.c requires 27 that an ENE take place within 45 days of the filing of the first answer. Requests to continue 28 ENEs are granted rarely and only in extraordinary circumstances. Any request to continue 5 16-cv-00914-JLS-AGS 1 the ENE will be filed as a joint motion or an ex parte motion, setting forth the extraordinary 2 circumstances. In and of itself, having to travel a long distance to appear in person is not 3 typically sufficient. Continuance requests will not be considered unless filed at least five 4 days before the scheduled ENE. 5 9. Pre-ENE Settlement: The Court encourages the parties to work on settling 6 the matter before the ENE. In the event that the parties resolve the matter prior to the day 7 of the ENE, the following procedures must be followed before the Court will vacate the 8 ENE and excuse the parties from appearing: 9 a. The parties may file a Joint Motion to Dismiss and separately lodge by email 10 a proposed order to the assigned District Judge.2 If a Joint Motion to Dismiss 11 is filed, the Court will vacate the ENE. The parties are encouraged to contact 12 Judge Schopler’s Chambers by telephone to notify the Court of their pending 13 Joint Motion. 14 b. If the parties settle more than 24 hours before the ENE but are not able to file 15 a Joint Motion to Dismiss, they must file a Notice of Settlement containing 16 the electronic signatures of counsel for all settling parties and identifying a 17 date by which the Joint Motion to Dismiss will be filed. The parties are 18 encouraged to contact Judge Schopler’s Chambers by telephone to notify the 19 Court of their filed Notice of Settlement. 20 c. If the parties settle less than 24 hours before the conference, counsel for the 21 settling parties must jointly call chambers and inform the Court of the 22 settlement and receive Court permission not to appear at the ENE. 23 After reviewing Judge Schopler’s Civil Chambers Rules and the assigned District 24 Judge’s Chambers Rules, the parties may address appropriate questions regarding this case 25 26 27 28 2 See Electronic Case Filing Administrative Policies and Procedures Manual, United States District Court for the Southern District of California § 2(h), for the chambers’ official email address and procedures on emailing proposed orders. 6 16-cv-00914-JLS-AGS 1 or the mandatory directions set forth above through a joint call to Judge Schopler’s 2 chambers at (619) 557-6480. 3 Dated: October 27, 2016 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 16-cv-00914-JLS-AGS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Julia Esther Corvera Hernandez , Case No.: 16-cv-00914-JLS-AGS Plaintiff(s) NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE v. Ethicon, Inc. et al, Defendant(s) 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 Consent / Do Not Consent* to 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 Andrew G. Schopler, 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, then Plaintiff shall file the consent form(s) in paper format at the Clerk’s Office.
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