Mohamed v. Sea World Parks & Entertainment, Inc. et al, No. 3:2017cv00928 - Document 10 (S.D. Cal. 2017)
Court Description: ORDER Granting In Part and Denying In Part Joint Motion and Stipulation Re: Early Neutral Evaluation Conference and Telephonic Case Management Conference. Signed by Magistrate Judge Jill L. Burkhardt on 6/29/2017. (jjg)
Mohamed v. Sea World Parks & Entertainment, Inc. et al Doc. 10 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 Case No.: 17-cv-928 CAB (JLB) REEM MOHAMED, Plaintiff, 13 14 v. 15 ORDER GRANTING IN PART AND DENYING IN PART JOINT MOTION AND STIPULATION RE: EARLY NEUTRAL EVALUATION CONFERENCE AND TELEPHONIC CASE MANAGEMENT CONFERENCE SEA WORLD, LLC, Defendant. 16 17 18 19 20 Before the Court is the parties’ Joint Motion and Stipulation Re: Early Neutral 21 Evaluation Conference and Telephonic Case Management Conference. (ECF No. 9.) The 22 parties request that an Early Neutral Evaluation Conference not be set in this case because 23 they recently attended a full-day private mediation. (Id. at 2.) The parties further request 24 that they be allowed to appear telephonically at the Case Management Conference set for 25 this case. (Id.) 26 Rule 16.1.c. of this Court’s Civil Local Rules requires that an Early Neutral 27 Evaluation Conference be held within 45 days of the filing of an answer, unless a case falls 28 within the categories of cases listed under Civil Local Rule 16.1.e. CivLR 16.1.c. As this 1 17-cv-928 CAB (JLB) Dockets.Justia.com 1 case does not fall within one of the categories of cases listed under Civil Local Rule 16.1.e., 2 the parties must appear before the Court for an Early Neutral Evaluation Conference. For 3 this reason, the Court DENIES the parties’ request to exempt this case from the 4 requirement of an Early Neutral Evaluation Conference. However, because the parties 5 recently attended a full day, in-person private mediation, the parties may appear 6 telephonically, through their respective counsel, at the Early Neutral Evaluation 7 Conference before the Court. Additionally, because the parties will appear telephonically 8 at the Early Neutral Evaluation Conference, the Court GRANTS the parties’ request to 9 appear telephonically, through their respective counsel, at the Case Management 10 Conference in this case. 11 Accordingly, IT IS HEREBY ORDERED that a telephonic, counsel-only Early 12 Neutral Evaluation (“ENE”) of this case will be held on July 14, 2017, at 2:30 PM before 13 Magistrate Judge Jill L. Burkhardt. Plaintiff’s principal attorney responsible for the 14 litigation is responsible for placing one joint call with all participating counsel already on 15 the line into Chambers at (619) 557-6624. 16 In the event the case does not settle at the ENE Conference, a Case Management 17 Conference pursuant to Fed. R. Civ. P. 16(b) is SET for July 14, 2017, and will be held at 18 the conclusion of the ENE Conference. 19 The following are mandatory directions for the parties preparing for the ENE Absent express permission obtained from this Court, and 20 Conference. 21 notwithstanding the pendency of any motion, counsel shall timely comply with the 22 dates and deadlines ordered herein. 23 1. Purpose of Conference: The purpose of the Early Neutral Evaluation 24 Conference (“ENE”) is to permit an informal discussion between the attorneys, parties, and 25 the settlement judge of every aspect of the lawsuit in an effort to achieve an early resolution 26 of the case. All conference discussions will be informal, off the record, privileged and 27 confidential. Counsel for any non-English speaking parties is responsible for arranging for 28 the appearance of an interpreter at the conference. 2 17-cv-928 CAB (JLB) 1 2. Personal Appearance of Parties Not Required: The principal attorneys 2 responsible for the litigation must appear by telephone and be legally and factually 3 prepared to discuss settlement of the case. The principal attorneys are responsible for 4 ensuring that all parties, adjusters for insured defendants, and other representatives of a 5 party having full settlement authority as explained below may be reached by telephone 6 should the need arise during the ENE Conference. Counsel appearing without a means to 7 contact their clients by telephone (whether or not counsel has been given settlement 8 authority) will be cause for immediate imposition of sanctions and may also result in the 9 immediate termination of the conference. If each of the principal attorneys responsible for 10 the litigation are not listed on the docket as an “ATTORNEY TO BE NOTICED,” then they 11 each shall enter their appearance on the docket as soon as practicable, but in no event later 12 than ten calendar days prior to the ENE conference. 13 Unless there are extraordinary circumstances, persons required to attend the 14 conference pursuant to this Order shall not be excused from attendance. Requests for 15 excuse from attendance for extraordinary circumstances shall be made in writing at 16 least ten calendar days prior to the conference. Failure to appear at the ENE conference 17 will be grounds for sanctions. 18 3. Full Settlement Authority Required1: In addition to counsel who will try 19 the case, a party or party representative with full settlement authority must be available by 20 telephone should the need to contact them arise at the conference. In the case of an entity, 21 an authorized representative of the entity who is not retained outside counsel must be 22 23 24 25 26 27 28 1 “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). The purpose of requiring a person with unlimited settlement authority to attend the conference contemplates 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 of authority is not adequate. See Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-97 (8th Cir. 2001). 3 17-cv-928 CAB (JLB) 1 present and must have discretionary authority to commit the entity to pay an amount up to 2 the amount of the Plaintiff’s prayer (excluding punitive damages prayers). The purpose of 3 this requirement is to have representatives available who can settle the case during the 4 course of the conference without consulting a superior. 5 4. ENE Statements Required: On or before July 6, 2017, the parties shall 6 lodge statements of five pages or less directly to the chambers of Magistrate Judge 7 Burkhardt outlining the nature of the case, the claims, the defenses, and the parties’ 8 positions regarding settlement of the case. The settlement position must include a specific 9 and current demand or offer addressing all relief or remedies sought. If a specific demand 10 or offer cannot be made at the time the brief is submitted, then the reasons therefor must 11 be stated along with a statement as to when the party will be in a position to state a demand 12 or offer. A general statement that a party will “negotiate in good faith,” “offer a nominal 13 cash sum,” or “be prepared to make an offer at the conference” is not a specific demand or 14 offer. The statement shall also list all attorney and non-attorney conference attendees for 15 that side, including the name(s) and title(s)/position(s) of the party/party representative(s) 16 who will attend and have settlement authority at the conference. 17 ENE statements shall be lodged via email at firstname.lastname@example.org. If 18 exhibits are attached and the total submission amounts to more than 20 pages, a hard copy 19 must also be delivered directly to chambers. Whether these statements are submitted 20 confidentially or whether they are served on opposing counsel is within the parties’ 21 discretion. Statements of more than five pages will not be considered. 22 5. Submission of Magistrate Judge Consent Form: No later than July 6, 2017, 23 each party shall provide Plaintiff’s counsel with an executed copy of the attached consent 24 form, titled Notice, Consent, and Reference of a Civil Action to a Magistrate Judge. 25 Pursuant to Civil Local Rule 73.1, if (and only if) all parties have consented to the reference 26 to a magistrate judge, then Plaintiff shall file the consent form(s) in paper format at the 27 Clerk’s Office by July 10, 2017. If the paper format filing reflects consent by all parties, 28 then the form(s) will be forwarded to the assigned district judge for approval. The consent 4 17-cv-928 CAB (JLB) 1 form(s) should not be filed with the court electronically through its Case 2 Management/Electronic Case Filing (CM/ECF) system. No consent form will be made 3 available, nor will its contents be made known to any judicial officer, unless all parties 4 have consented to the reference to a magistrate judge. The parties are free to withhold 5 consent without adverse substantive consequences. Questions related to the consent 6 form(s) should be directed only to the clerk’s office at 619-557-5600. Please do not call 7 chambers’ staff with questions related to the consent form(s). 8 9 10 11 6. New Parties Must Be Notified by Plaintiff’s Counsel: Plaintiff’s counsel shall give notice of the ENE and this Order to parties responding to the complaint after the date of this notice. 7. Case Management Under the Amended Federal Rules: The parties are 12 ordered to comply with Fed. R. Civ. P. 26 and proceed with the initial disclosure process 13 as follows: 14 a. The Rule 26(f) conference shall be completed on or before July 4, 2017; 15 b. The date of initial disclosure pursuant to Rule 26(a)(1)(A-D) shall occur on or before July 6, 2017; 16 17 c. A Joint Discovery Plan shall be filed on the CM/ECF system as well as 18 lodged with Magistrate Judge Burkhardt by emailing the Plan to 19 email@example.com, on or before July 6, 2017. The Plan must 20 be one document and must explicitly cover the parties’ views and proposals 21 for each item identified in Fed. R. Civ. P. 26(f)(3). The parties should consult 22 both Judge Burkhardt’s and the assigned District Judge’s Civil Chambers 23 Rules in drafting their Plan. A courtesy paper copy of the Plan shall be 24 delivered to Judge Burkhardt’s Chambers if the plan with its attachments 25 exceeds 20 pages. In addition to complying with Chambers Rules, the Plan 26 should identify whether and what good cause (specific to this case) exists to 27 modify the Court’s tentative schedule for this case. The Court’s tentative 28 schedule is as follows: 5 17-cv-928 CAB (JLB) i. Filing of motions to amend pleadings and/or add parties: August 18, 1 2017; 2 3 ii. Completion of fact and expert witness discovery: January 12, 2018; 4 iii. The designation and service of expert witness reports: November 10, 2017; 5 6 iv. The supplemental designation and service of rebuttal expert witness reports: December 15, 2017; 7 8 v. The date by which dispositive motions, inclusive of any motions 9 addressing any Daubert issues, shall be filed: February 9, 2018. 10 Motions in limine are to be filed as directed in the Local Rules, or as 11 otherwise set by the District Judge; vi. The date for the Mandatory Settlement Conference: January 30, 2018; 12 13 and 14 vii. The date for a Pretrial Conference before the District Judge assigned to the case: June 8, 2018. 15 16 8. Requests to Continue or Reschedule an ENE Conference: Local Rule 17 16.1.c requires that an ENE take place within 45 days of the filing of the first answer. 18 Requests to continue ENEs are rarely granted. However, the Court will consider formal, 19 written ex parte or joint motions to continue an ENE conference when extraordinary 20 circumstances exist that make a continuance appropriate. In and of itself, having to travel 21 a long distance to appear in person is not “extraordinary.” 22 circumstances, requests for continuances will not be considered unless filed no less than 23 ten calendar days prior to the scheduled conference. 24 9. Absent extraordinary Settlement Prior to ENE Conference: The Court encourages the parties to 25 work on settling the matter in advance of the ENE Conference. In the event that the parties 26 resolve the matter prior to the day of the ENE Conference, the following procedures must 27 be followed before the Court will vacate the ENE and excuse the parties from appearing: 28 /// 6 17-cv-928 CAB (JLB) 1 a. The parties may file a Joint Motion to Dismiss and separately lodge by email 2 a proposed order to the assigned District Judge. 2 If a Joint Motion to Dismiss 3 is filed, the Court will vacate the ENE. The parties are encouraged to contact 4 Judge Burkhardt’s Chambers by telephone to notify the Court of their pending 5 Joint Motion; 6 b. If the parties settle more than 24 hours before the conference but are not able 7 to file a Joint Motion to Dismiss, they must file a Notice of Settlement 8 containing the electronic signatures of counsel for all settling parties and 9 identifying a date by which the Joint Motion to Dismiss will be filed. The 10 parties are encouraged to contact Judge Burkhardt’s Chambers by telephone 11 to notify the Court of their filed Notice of Settlement; 12 c. If the parties settle less than 24 hours before the conference, counsel for the 13 settling parties must JOINTLY call chambers and inform the Court of the 14 settlement and receive Court permission to not appear at the ENE. 15 After having reviewed Judge Burkhardt’s Civil Chambers Rules, appropriate 16 questions regarding this case or the mandatory directions set forth herein may be addressed 17 to the Magistrate Judge’s law clerks at (619) 557-6624. For additional information, please 18 see Judge Burkhardt’s Civil Chambers Rules. 19 Dated: June 29, 2017 20 21 22 23 24 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. 7 17-cv-928 CAB (JLB) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA REEM MOHAMED, Case No.: 17-cv-928 CAB (JLB) Plaintiff(s) v. NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE SEA WORLD, LLC, 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 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 Jill L. Burkhardt to conduct all proceedings and order entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. 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.