Gerrity v. AscentX Medical, Inc. et al, No. 3:2022cv00796 - Document 8 (S.D. Cal. 2022)
Court Description: ORDER Granting 7 Joint Motion to Continue (1) Early Neutral Evaluation Conference, (2) Case Management Conference, and (3) Telephonic Status Conference: Joint Discovery Plan due 12/6/2022 Case Management Conference set for 12/20/2022 02:00 PM befo re Magistrate Judge William V. Gallo. Early Neutral Evaluation set for 12/20/2022 02:00 PM before Magistrate Judge William V. Gallo. Attorneys only Telephonic Status Conference set for 12/13/2022 01:00 PM before Magistrate Judge William V. Gallo.Signed by Magistrate Judge William V. Gallo on 10/14/2022. (exs)
Download PDF
<![CDATA[
Gerrity v. AscentX Medical, Inc. et al Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Gerrity, Plaintiff, 12 13 v. 14 AscentX Medical, Inc. et al, 15 Case No.: 22-cv-796-JO(WVG) ORDER GRANTING JOINT MOTION TO CONTINUE (1) EARLY NEUTRAL EVALUATION CONFERENCE, (2) CASE MANAGEMENT CONFERENCE, AND (3) TELEPHONIC STATUS CONFERENCE Defendants. 16 17 [ECF No. 7] 18 19 20 On October 14, 2022, the Parties filed a Joint Motion to Modify Scheduling Order, 21 requesting the Court continue the November 17, 2022 Early Neutral Evaluation and Case 22 Management Conference, and November 9, 2022 Telephonic Status Conference. (ECF No. 23 7.) The Court GRANTS the Joint Motion. Accordingly: 24 IT IS HEREBY ORDERED that an Early Neutral Evaluation (“ENE”) of your case 25 and Case Management Conference (“CMC”) will be held on December 20, 2022, at 2:00 26 p.m., before United States Magistrate Judge William V. Gallo. These conferences will be 27 held via Zoom videoconference as set forth in Appendix A. 28 Additionally, on December 13, 2022, beginning at 1:00 p.m., the Court will hold 1 22-cv-796-JO(WVG) Dockets.Justia.com 1 an attorneys-only telephonic status conference with each party separately.1 The purpose 2 of this confidential, off-the-record teleconference is for the Court’s benefit in assessing 3 each party’s concerns, challenges, and whether the Court can assist in alleviating these. 4 On or before December 6, 2022, each attorney intending to participate shall lodge, via 5 electronic mail addressed to efile_Gallo@casd.uscourts.gov, (1) the name of each attorney 6 who will participate and (2) a telephone number at which each attorney may be reached 7 directly without fail at the time of the conference. 8 I. 9 10 EARLY NEUTRAL EVALUATION CONFERENCE The following are mandatory guidelines for the parties preparing for the ENE Conference. 11 1. 12 The purpose of the ENE is to permit an informal discussion between the attorneys, 13 parties and the settlement judge of every aspect of the lawsuit in an effort to achieve an 14 early resolution of the case. All conference discussions will be informal, off the record, 15 privileged and confidential. Counsel for non-English speaking parties is responsible for 16 arranging for the appearance of an interpreter at the conference. Purpose of Conference 17 2. 18 All parties, adjusters for insured defendants, and other representatives of a party 19 having full and complete authority to enter into a binding settlement, and the principal 20 attorneys responsible for the litigation, must participate in the ENE and be legally and 21 factually prepared to discuss settlement of the case. See S.D. Cal. Civ. L. R. 16.1(c). Given 22 the current ongoing COVID-19 pandemic and related travel and health concerns, the ENE Personal Participation of Parties Required 23 24 25 26 27 28 1 The Court will contact the first party and proceed to contact the remaining parties one at a time. Each call may be short or lengthy. Counsel are required to be available for the Court’s call beginning at the appointed time and remain available until they are called. If counsel has not received a call from chambers after 20 minutes, counsel is directed to call chambers at (619) 557-6384. If multiple counsel will appear for a party, all counsel shall call jointly. 2 22-cv-796-JO(WVG) 1 and CMC will be held via Zoom videoconference, the procedures for which are set forth 2 in Appendix A to this Order. 3 3. 4 In addition to counsel who will try the case, a party or party representative with full 5 settlement authority 2 must participate in the conference. In the case of a corporate entity, 6 an authorized representative of the corporation who is not retained outside counsel must 7 participate and must have discretionary authority to commit the company to pay an amount 8 up to the amount of the plaintiff’s prayer (excluding punitive damage prayers). The 9 purpose of this requirement is to have representatives present who can settle the case during 10 Full Settlement Authority Required the course of the conference without consulting a superior. 11 4. 12 No later than October 25, 2022, Plaintiff shall submit to Defendant(s) a written 13 settlement proposal. No later than November 11, 2022, Defendant(s) shall submit a 14 response to Plaintiff’s settlement proposal. All parties shall be prepared to address in their 15 ENE Statements, and discuss at the ENE conference, the settlement proposal and response. Settlement Proposal and Response Required 16 5. 17 In accordance with the Court’s Chambers Rules, each party shall exchange its 18 settlement Statement with all opposing parties. Additionally, in accordance with the 19 Court’s Chambers Rules, each party shall submit a confidential or non-confidential ENE Statements Required 20 21 2 22 23 24 25 26 27 28 “Full authority to settle” means that the individuals at the settlement conference must be authorized to fully 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 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to change the settlement position of a party. Pitman v. Brinker Intl., 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 includes 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. The person with full settlement authority must be able to negotiate a settlement without being restricted by any predetermined level of authority. Nick v. Morgan’s Foods, Inc., 270 F.3d 590 (8th Cir. 2001). 3 22-cv-796-JO(WVG) 1 Statement to the Court. Both the exchange of Statements between the parties and 2 submissions of Statements to the Court shall occur on or before December 6, 2022. 3 The Statement each party submits directly to the chambers shall be five pages or less and 4 shall outline the nature of the case, the claims, the defenses, and the parties’ positions 5 regarding settlement of, and attempts to settle the case. All Statements must comply with 6 the Court’s Chambers Rules. 7 The parties shall meet and confer in good faith prior to the ENE Conference, and 8 verify that they have done so in their respective ENE Conference statements, outlining the 9 substance of their discussions and negotiations. 10 6. 11 The Court generally allots two hours for ENEs. Counsel should be prepared to be 12 succinct and to the point. Requests for additional time must be made in writing in the 13 party’s ENE statement, accompanied by a short explanation. Time Allotted 14 7. 15 Plaintiff’s counsel shall give notice of the ENE Conference to all parties responding 16 New Parties Must Be Notified by Plaintiff’s Counsel to the Complaint after the date of this Notice. 17 8. 18 Civil Local Rule 16.1(c) requires that an ENE take place within 45 days of the filing 19 of the first answer. Requests to continue ENE conferences are rarely granted. Counsel 20 seeking to reschedule an ENE must first confer with opposing counsel. The Court will 21 consider formal, written ex parte requests to continue an ENE conference when 22 extraordinary circumstances exist that make a continuance appropriate. Absent 23 extraordinary circumstances, requests for continuances of the ENE conference will 24 not be considered unless submitted in writing no less than seven calendar days prior 25 to the scheduled conference, and only after conferring with opposing counsel. 26 27 28 Requests to Continue an ENE Conference Please refer to the undersigned’s Chambers Rules for additional guidance regarding the areas which must be addressed in the request. The parties shall be prepared to engage in good faith settlement discussions with the 4 22-cv-796-JO(WVG) 1 Court and opposing parties during the ENE Conference. Failure to engage in good faith 2 settlement discussions may result in the imposition of sanctions. 3 II. CASE MANAGEMENT CONFERENCE 4 If the case does not settle at the ENE, the parties shall be prepared for a Case 5 Management Conference immediately upon completion of the ENE. Accordingly, the 6 Court issues the following orders: 7 1. The Rule 26(f) conference shall be completed before October 13, 2022; 8 2. The date of initial disclosure pursuant to Rule 26(a)(1)(A)-(D) shall occur before 9 November 18, 2022; and 10 3. A joint discovery plan shall be lodged with Magistrate Judge Gallo on or before December 6, 2022. 3 11 12 Questions regarding this case may be directed to the undersigned’s Research 13 Attorney at (619) 557-6384. Please consult the undersigned’s Chambers Rules, which are 14 available on the Court’s website, before contacting chambers with any questions. 15 16 IT IS SO ORDERED. DATED: October 14, 2022 17 18 19 20 21 22 23 24 25 26 27 28 3 Counsel shall review the undersigned’s Chambers Rules for guidance on completing the proposed discovery plan. Counsel are further advised to consult the Chambers Rules of the District Judge assigned to this case for case timeline preferences, if any. 5 22-cv-796-JO(WVG) 1 Appendix A – Zoom Videoconference Procedures 2 1. The Court will use its official Zoom video conferencing account to hold the 3 ENE. The Zoom software is available for download on the Zoom website 4 (https://zoom.us/meetings) or on mobile devices through the installation of a free app.4 5 Joining a Zoom conference does not require creating a Zoom account, but it does require 6 downloading the .exe file (if using a computer) or the app (if using a mobile device). 7 Participants are encouraged to create an account, install Zoom and familiarize themselves 8 with Zoom in advance of the ENE. 5 There is a cost-free option for creating a Zoom account. 9 2. Prior to the start of the ENE, the Court will e-mail counsel the meeting login 10 information required to join the Zoom video conference. Participants can join the video 11 conference by following the ZoomGov Meeting hyperlink provided to counsel or by 12 entering the meeting ID and password. Again, if possible, participants are encouraged to 13 use laptops or desktop computers with a camera for the video conference, as mobile devices 14 often offer inferior performance. Participants who do not have Zoom already installed 15 on their device when they click on the ZoomGov Meeting hyperlink will be prompted 16 to download and install Zoom before proceeding. Zoom may then prompt participants 17 to enter the password included in the invitation. All participants will be placed in a waiting 18 room until the ENE begins. 19 20 3. Each participant should plan to join the Zoom video conference at least five minutes before the start of the ENE to ensure that the ENE begins promptly at 2:00 p.m. 21 4. Zoom’s functionalities will allow the Court to conduct the ENE as it ordinarily 22 would conduct an in-person ENE. That is, the Court will begin the ENE with all 23 participants joined together in a main session. After an initial discussion in the main 24 25 26 27 28 4 If possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. 5 For help getting started with Zoom, visit: https://support.zoom.us/hc/enus/categories/200101697-Getting-Started 6 22-cv-796-JO(WVG) 1 session, the Court will divide participants into separate, confidential sessions, which Zoom 2 calls “Breakout Rooms.”6 In a Breakout Room, the Court will be able to communicate with 3 participants from a single party in confidence. Breakout Rooms will also allow parties and 4 counsel to communicate confidentially without the Court. 5 6 5. No later than 12:00 p.m. on December 6, 2022, counsel for each party shall send an e-mail to the Court at efile_Gallo@casd.uscourts.gov containing the following: 7 a. The name and title of each participant, including all parties and party 8 representatives with full settlement authority, claims adjusters for insured 9 defendants, and the primary attorney(s) responsible for the litigation; 10 b. 11 An e-mail address for each participant. This email address should be the same address the participant has used to create his or her Zoom account; and 12 c. A telephone number where each participant may be reached so that 13 if technical difficulties arise, the Court will be in a position to proceed telephonically 14 instead of by video conference. (If counsel prefers to have all participants of their 15 party on a single conference call, counsel may provide a conference number and 16 appropriate call-in information, including an access code, where all counsel and 17 parties or party representatives for that side may be reached as an alternative to 18 providing individual telephone numbers for each participant.) 19 6. 20 be prepared to devote their full attention to the ENE as if they were attending in person. All participants shall display the same level of professionalism during the ENE and 21 22 23 24 25 26 27 28 6 For more information on what to expect when participating in a Zoom Breakout Room, visit: https://support.zoom.us/hc/en-us/articles/115005769646. In short, the Court will manually place each participant in their respective Breakout Room. When the Court does this, on the participants device, the participant will see a notification regarding joining the Breakout Room. The participant should select the option to join the room. If the Court then wishes to close the Breakout Rooms and converse with all parties and counsel, the participant should choose the option that will appear on his or her device to leave the Breakout Room—this will send the participant to the group room; it will not expel the participant from the conference. 7 22-cv-796-JO(WVG) 1 Because Zoom may quickly deplete the battery of a participant’s device, each participant 2 should ensure that their device is plugged in or that a charging cable is readily available 3 during the video conference. Participants should also participate in the conference in a 4 location that allows for privacy and which does not contain background noise such as dogs 5 barking, children, or other noise that will disrupt the conference. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 22-cv-796-JO(WVG)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
