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Active Network, Inc. v. Electronic Arts


July 21, 2010


The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge


The Early Neutral Evaluation set for July 30, 2010, at 2:00 P.M. is VACATED and reset for August 11, 2010 at 2:00 P.M. before United States Magistrate Judge William V. Gallo, United States Courthouse, Courtroom F, First Floor, 940 Front Street, San Diego, California.

The purpose of the Early Neutral Evaluation Conference ("ENE")is to permit an informal discussion between the attorneys, parties and the settlement judge of every aspect of the lawsuit in an effort to achieve an early resolution of the case. All conference discussions will be informal, off the record, privileged and confidential. Counsel for non-English speaking parties is responsible for arranging for the appearance of an interpreter at the conference.

Pursuant to Rule 16.1(c) of the Local Rules of the United States District Court for the Southern District of California, both counsel and the parties who have full and unlimited authority*fn1 to negotiate and enter into a binding settlement shall appear in person at the conference and shall be prepared to discuss the claims, defenses, damages and settlement.

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 48 hours prior to the conference. Where the suit involves the United States or one of its agencies, only counsel for the United States with full settlement authority need appear.

The Court requires that the parties file Confidential ENE Statements. No later than five court days prior to the ENE, the parties shall submit directly to Judge Gallo's chambers confidential statements of five pages or less which outline the nature of the case, the claims, the defenses, and the parties' positions regarding settlement of the case.

In the event the case does not settle at the Early Neutral Evaluation Conference, the parties shall also be prepared to discuss the following matters at the conclusion of the conference.

1. Any anticipated objections under Federal Rule of Civil Procedure 26(a)(1)(E) to the initial disclosure provisions of Federal Rule of Civil Procedure 26(a)(1)(A-D);

2. The scheduling of the Federal Rule of Civil Procedure 26(f) conference;

3. The date of initial disclosure and the date for lodging the discovery plan following the Rule 26(f) conference; and,

4. The scheduling of a Case Management Conference pursuant to Federal Rule of Civil Procedure 16(b).

The Court will issue an appropriate order addressing these issues and setting dates as appropriate.

Plaintiff's counsel shall give notice of the ENE to all parties responding to the Complaint after the date of this Notice.

Local Rule 16.1(c) requires that an ENE take place within 45 days of the filing of the first answer. Requests to continue ENE conferences are rarely granted. However, the Court will consider formal, written ex parte requests to continue an ENE conference when extraordinary circumstances exist that make a continuance appropriate. In and of itself, having to travel a long distance to appear at the ENE conference is not an extraordinary circumstance. Absent extraordinary circumstances, requests for continuances of the ENE conference may not be considered unless submitted in writing no less than seven calendar days prior to the scheduled conference.

Questions regarding the ENE in this case may be directed to the Magistrate Judge's Research Attorney at (619) 557-6384.

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