Securities and Exchange Commission v. Minuskin et al, No. 3:2022cv00483 - Document 29 (S.D. Cal. 2022)
Court Description: ORDER Granting In Part 28 Joint Motion to Continue Early Neutral Evaluation Conference ("ENE") and Case Management Conference ("CMC"). ENE and CMC set for 1/4/2022 are RESET for 1/26/2023 at 2:00 PM before Magistrate Judge Allison H. Goddard. Signed by Magistrate Judge Allison H. Goddard on 12/16/2022. (hmw)
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Securities and Exchange Commission v. Minuskin et al Doc. 29 Case 3:22-cv-00483-RSH-AHG Document 29 Filed 12/16/22 PageID.728 Page 1 of 7 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 SECURITIES AND EXCHANGE COMMISSION, 16 ORDER GRANTING IN PART JOINT MOTION TO CONTINUE EARLY NEUTRAL EVALUATION CONFERENCE AND CASE MANAGEMENT CONFERENCE Plaintiff, 14 15 Case No.: 3:22-cv-00483-RSH-AHG v. THOMAS F. CASEY; GOLDEN GENESIS, INC.; et al., 17 [ECF No. 28] Defendants. 18 19 Before the Court is the parties’ joint Motion to Continue the Early Neutral 20 Evaluation (“ENE”) and Case Management Conference (“CMC”) currently set for 21 January 4, 2023. ECF No 28. 22 Parties seeking to continue an ENE must demonstrate good cause. ECF No. 26 at 6 23 (“An ENE may be rescheduled only upon a showing of good cause”); Chmb.R. at 2 (stating 24 that any request for continuance requires “[a] showing of good cause for the request”); see 25 FED. R. CIV. P. 6(b) (“When an act may or must be done within a specified time, the court 26 may, for good cause, extend the time”). 27 “Good cause” is a non-rigorous standard that has been construed broadly across 28 procedural and statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 1 3:22-cv-00483-RSH-AHG Dockets.Justia.com Case 3:22-cv-00483-RSH-AHG Document 29 Filed 12/16/22 PageID.729 Page 2 of 7 1 (9th Cir. 2010). The good cause standard focuses on the diligence of the party seeking to 2 amend the scheduling order and the reasons for seeking modification. Johnson v. Mammoth 3 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 4 Here, the parties represent to the Court that counsel for Defendants has a conflict on 5 the same date as the ENE in this case—a family vacation during the first week of January, 6 booked one year ago. ECF No. 28 at 2. Accordingly, the parties request that both the ENE 7 and CMC be continued to January 19, 2023. Id. The Court finds good cause to GRANT IN PART1 the Motion. The Court 8 9 ORDERS the following: 10 1. The ENE and CMC originally rescheduled for January 4, 2023, at 2:00 p.m. 11 are hereby CONTINUED to January 26, 2023 at 2:00 p.m. before Magistrate Judge 12 Allison H. Goddard. In accordance with the Local Rules, the Court requires attendance of 13 all parties, party representatives, including claims adjusters for insured defendants, and the 14 primary attorney(s) responsible for the litigation via videoconference. CivLR 16.1(c)(1). 15 2. Purpose of the Conference: The purpose of the ENE is to permit an informal 16 discussion between the attorneys and the settlement judge of every aspect of the lawsuit in 17 an effort to achieve an early resolution of the case. All conference discussions will be 18 informal, off the record, and confidential. 19 3. Full Settlement Authority Required: A party or party representative with 20 full and complete authority to enter into a binding settlement must be present via 21 videoconference. Full authority to settle means that a person must be authorized to fully 22 explore settlement options and to agree at that time to any settlement terms acceptable to 23 the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 24 25 26 27 28 1 The parties requested that the continued ENE and CMC take place on January 19, 2023 at 2:00 p.m. ECF No. 28 at 2. Though the Court appreciates that the parties worked together to find a mutually agreeable date, the Court does not have that date and time available on its calendar. 2 3:22-cv-00483-RSH-AHG Case 3:22-cv-00483-RSH-AHG Document 29 Filed 12/16/22 PageID.730 Page 3 of 7 1 1989). The person needs to have “unfettered discretion and authority” to change the 2 settlement position of a party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485–86 (D. 3 Ariz. 2003). Limited or sum certain authority is not adequate. Nick v. Morgan’s Foods, 4 Inc., 270 F.3d 590, 595–97 (8th Cir. 2001). A person who needs to call another person 5 who is not present on the videoconference before agreeing to any settlement does not 6 have full authority. 7 4. Confidential ENE Statements Required: No later than January 17, 2023,2 8 the parties shall submit confidential statements of five (5) pages or less directly to the 9 chambers of Magistrate Judge Goddard outlining the nature of the case, the claims, and the 10 defenses. These statements shall not be filed or served on opposing counsel. They shall 11 be lodged via email at efile_goddard@casd.uscourts.gov. The ENE statement is limited to 12 five (5) pages or less, and up to five (5) pages of exhibits or declarations. Each party’s 13 ENE statement must outline: 14 A. the nature of the case and the claims, 15 B. position on liability or defense, 16 C. position regarding settlement of the case with a specific3 demand/offer for settlement,4 and 17 18 D. 19 20 5. any previous settlement negotiations or mediation efforts. Case Management Conference: In the event the case does not settle at the ENE, the Court will immediately thereafter hold a Case Management Conference (“CMC”) 21 22 23 24 25 26 27 28 2 Certain parties have already submitted their ENE Statements, and those parties are not required to submit any further Statements unless they so prefer. A general statement, such as that a party “will negotiate in good faith,” is a not a specific demand or offer. 3 4 If a specific demand or offer cannot be made at the time the ENE statement is submitted, then the reasons as to why a demand or offer cannot be made must be stated. Further, the party must explain when they will be in a position to state a demand or offer. 3 3:22-cv-00483-RSH-AHG Case 3:22-cv-00483-RSH-AHG Document 29 Filed 12/16/22 PageID.731 Page 4 of 7 1 pursuant to Fed. R. Civ. P. 16(b). Appearance of the parties at the CMC is not required. 2 The deadlines set forth in the Court’s Order originally resetting ENE and CMC (see ECF 3 No. 26 at 3) remain in place. The Court notes that, although it is unable to set the ENE 4 within the standard 45-day timeframe after the filing of the first Answer, the Court will 5 consider discovery to be open after the parties met and conferred pursuant to Rule 26, and 6 will take this deadline into account when setting the case schedule during the CMC. 7 6. Appearances via Videoconference Required: All named parties, party 8 representatives, including claims adjusters for insured defendants, as well as principal 9 attorney(s) responsible for the litigation must attend the ENE via videoconference. All who 10 attend the ENE must be legally and factually prepared to discuss and resolve the case. 11 Counsel appearing without their clients (whether or not counsel has been given settlement 12 authority) will be subject to immediate imposition of sanctions. To facilitate the 13 videoconference ENE, the Court hereby orders as follows: 14 A. The Court will use its official Zoom video conferencing account to hold 15 the ENE. If you are unfamiliar with Zoom: Zoom is available on 16 computers through a download on the Zoom website 17 (https://zoom.us/meetings) or on mobile devices through the 18 installation of a free app.5 Joining a Zoom conference does not require 19 creating a Zoom account, but it does require downloading the .exe file 20 (if using a computer) or the app (if using a mobile device). Participants 21 are encouraged to create an account, install Zoom and familiarize 22 themselves with Zoom in advance of the ENE.6 There is a cost-free 23 option for creating a Zoom account. 24 25 5 26 If possible, participants are encouraged to use laptops or desktop computers for the video conference, rather than mobile devices. 27 6 28 For help getting started with Zoom, us/categories/200101697-Getting-Started visit: https://support.zoom.us/hc/en- 4 3:22-cv-00483-RSH-AHG Case 3:22-cv-00483-RSH-AHG Document 29 Filed 12/16/22 PageID.732 Page 5 of 7 1 B. Prior to the start of the ENE, the Court will email each participant an 2 invitation to join a Zoom video conference. Again, if possible, 3 participants are encouraged to use laptops or desktop computers for the 4 video conference, as mobile devices often offer inferior performance. 5 Participants shall join the video conference by following the ZoomGov 6 Meeting hyperlink in the invitation. Participants who do not have 7 Zoom already installed on their device when they click on the 8 ZoomGov Meeting hyperlink will be prompted to download and 9 install Zoom before proceeding. Zoom may then prompt participants 10 to enter the password included in the invitation. 11 C. Each participant should plan to join the Zoom video conference at least 12 five minutes before the start of the ENE to ensure that the conference 13 begins promptly at 2:00 p.m. 14 D. Zoom’s functionalities will allow the Court to conduct the ENE as it 15 ordinarily would conduct an in-person one. The Court will divide 16 participants into separate, confidential sessions, which Zoom calls 17 Breakout Rooms.7 In a Breakout Room, the Court will be able to 18 communicate with participants from a single party in confidence. 19 Breakout Rooms will also allow parties and counsel to communicate 20 confidentially without the Court. 21 E. No later than January 17, 2023,8 counsel for each party shall send an 22 e-mail to the Court at efile_goddard@casd.uscourts.gov containing the 23 following: 24 25 26 7 For more information on what to expect when participating in a Zoom Breakout Room, visit: https://support.zoom.us/hc/en-us/articles/115005769646 27 8 28 Certain parties have already submitted their Participant Information Lists, and those parties are not required to submit any further Lists unless they so prefer. 5 3:22-cv-00483-RSH-AHG Case 3:22-cv-00483-RSH-AHG Document 29 Filed 12/16/22 PageID.733 Page 6 of 7 1 i. The name and title of each participant, including all parties 2 and party representatives with full settlement authority, claims 3 adjusters for insured defendants, and the primary attorney(s) 4 responsible for the litigation; 5 ii. 6 An e-mail address for each participant to receive the Zoom video conference invitation; 7 iii. 8 A telephone number where each participant may be reached; and 9 iv. A cell phone number for that party’s preferred point of 10 contact (and the name of the individual whose cell phone it is) 11 for the Court to use during the ENE to alert counsel via text 12 message that the Court will soon return to that party’s Breakout 13 Room, to avoid any unexpected interruptions of confidential 14 discussions. 15 F. All participants shall display the same level of professionalism during 16 the ENE and be prepared to devote their full attention to the ENE as if 17 they were attending in person, i.e., cannot be driving while speaking to 18 the Court. Because Zoom may quickly deplete the battery of a 19 participant’s device, each participant should ensure that their device is 20 plugged in or that a charging cable is readily available during the video 21 conference. 22 G. Counsel are advised that although the ENE will take place on Zoom, all 23 participants shall appear and conduct themselves as if it is proceeding 24 in a courtroom, i.e., counsel must dress in appropriate courtroom attire. 25 H. 26 27 28 If the case does not settle during the ENE, the Court will hold the CMC immediately following the ENE with counsel only in the main session. 7. The failure of any party to follow these mandatory procedures shall result in the imposition of sanctions. 6 3:22-cv-00483-RSH-AHG Case 3:22-cv-00483-RSH-AHG Document 29 Filed 12/16/22 PageID.734 Page 7 of 7 1 8. Questions regarding this case or these mandatory guidelines may be directed 2 to Judge Goddard’s law clerks at (619) 557-6162. Lodged statements should be emailed to 3 efile_goddard@casd.uscourts.gov. 4 5 6 IT IS SO ORDERED. Dated: December 16, 2022 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 3:22-cv-00483-RSH-AHG
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