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Marks v. United States

November 9, 2007


The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge


On November 2, 2007, parties to the above matter filed a joint motion to continue the trial date, "all related dates," and the December 5, 2007 Mandatory Settlement Conference. Doc. Nos. 28 & 29. In support of their motion, the parties cite (1) the difficulty of conducting business during the week of the San Diego wildfires, and (2) the November 8, 2007 surgery of Plaintiff's lead trial counsel, which requires one week's recovery. Doc. No. 29. For the following reasons, the joint motion is GRANTED in part and DENIED in part.

1. The parties' request to continue the trial is DENIED as moot. Though they state that trial is presently set to begin on August 25, 2008, Doc. No. 29, this is not the case. The Pretrial Conference is set for that day, but no trial date has yet been established. Doc. No. 22.

2. The request to continue all dates "related" to the trial is likewise DENIED. The parties' request presumably refers to the August 15, 2008 Pretrial Conference, and the July and August deadlines for pretrial disclosures and meet and confer efforts, as established by this Court's order. Doc. No. 22. These dates remain eight months in the future. As the wildfires only disrupted business for approximately one week, and as Plaintiff's counsel's surgery only requires an additional week of recovery, the parties still have sufficient time to prepare for their pretrial obligations.

3. The parties' request to continue the Mandatory Settlement Conference is GRANTED. The Mandatory Settlement Conference is hereby continued until February 6, 2008 at 1:30 p.m., to be conducted in the chambers of Magistrate Judge Barbara L. Major located at 940 Front Street, Suite 5140, San Diego, CA 92101. All discussions at the Mandatory Settlement Conference will be informal, off the record, privileged, and confidential. Counsel for any non-English speaking party is responsible for arranging for the appearance of an interpreter at the conference.

a. Personal Appearance of Parties Required: All parties, adjusters for insured defendants, and other representatives of a party having full and complete authority to enter into a binding settlement, as well as the principal attorneys responsible for the litigation, must be present in person and legally and factually prepared to discuss settlement of the case. Counsel appearing without their clients (whether or not counsel has been given settlement authority) will be cause for immediate imposition of sanctions and may also result in the immediate termination of the conference.

Unless there are extraordinary circumstances, persons required to attend the conference pursuant to this Order shall not be excused from personal attendance. Requests for excuse from attendance for extraordinary circumstances shall be made in writing at least three (3) court days prior to the conference. Failure to appear in person at the Mandatory Settlement Conference will be grounds for sanctions.

b. Full Settlement Authority Required: In addition to counsel who will try the case, a party or party representative with full settlement authority*fn1 must be present for the conference. In the case of a corporate entity, an authorized representative of the corporation who is not retained outside counsel must be present and must have discretionary authority to commit the company to pay an amount up to the amount of the Plaintiff's prayer (excluding punitive damages prayers). The purpose of this requirement is to have representatives present who can settle the case during the course of the conference without consulting a superior. Counsel for a government entity may be excused from this requirement so long as the government attorney who attends the Mandatory Settlement Conference (1) has primary responsibility for handling the case, and (2) may negotiate settlement offers which the attorney is willing to recommend to the government official having ultimate settlement authority.

c. Confidential Settlement Statements Required: No later than January 30, 2008, the parties shall submit directly to Magistrate Judge Major's chambers confidential settlement statements no more than five (5) pages in length. These confidential statements shall not be filed or served on opposing counsel. Each party's confidential statement must include the following:

(i) A brief description of the case, the claims and/or counterclaims asserted, and the applicable defenses or position regarding the asserted claims;

(ii) A specific and current demand or offer for settlement addressing all relief or remedies sought. If a specific demand or offer for settlement cannot be made at the time the brief is submitted, then the reasons therefore must be stated along with a statement as to when the party will be in a position to state a demand or make an offer; and

(iii) A brief description of any previous settlement negotiations, mediation sessions, or mediation efforts.

General statements that a party will "negotiate in good faith" is not a specific demand or offer contemplated by this Order. It is assumed that all parties will negotiate in good faith.

d. Requests to Continue a Mandatory Settlement Conference: Any request to continue the Mandatory Settlement Conference or request for relief from any of the provisions or requirements of this Order must be sought by a written ex parte application. The application must (1) be supported by a declaration of counsel setting forth the reasons and justifications for the relief requested, (2) confirm compliance with Civil Local Rule 26.1, and (3) report the position of opposing counsel or any unrepresented parties subject to the Order. Absent extraordinary ...

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