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Higginson v. Becerra

United States District Court, S.D. California

November 17, 2017

DON HIGGINSON, Plaintiff,
v.
XAVIER BECERRA, et al., Defendants.

          ORDER: (1) GRANTING IN PART AND DENYING IN PART JOINT MOTION TO CONTINUE ENE AND DISCOVERY DEADLINES; AND (2) ISSUING AMENDED ENE ORDER [ECF NOS. 15, 29]

          Hon. Jill L. Burkhardt United States Magistrate Judge.

         Before the Court is the parties' Joint Motion to Continue Early Neutral Evaluation Conference and Discovery Deadlines. (ECF No. 29.) The parties request that the Early Neutral Evaluation Conference (ENE) and all discovery deadlines set forth in the Court's October 27, 2017 Order (ECF No. 15) be reset until after the parties have rulings on Plaintiff's Motion for Preliminary Injunction (ECF No. 11), the Motion to Intervene filed by third parties California League of United Latin American Citizens, Jacqueline Contreras, Xavier Flores, Judy Ki, and Hiram Soto (ECF No. 18), and Defendant's impending motion to dismiss. (ECF No. 29 at 3.) The parties request a continuance of these dates for the following reasons: (1) the case is unlikely to settle as Plaintiff seeks only injunctive and declaratory relief; (2) a ruling on the pending Motion for Preliminary Injunction will affect the parties' settlement positions; (3) Defendant's impending motion to dismiss may dispose of the case; (4) if the Motion to Intervene is granted additional parties will be added; and (5) Defendant's counsel are scheduled to attend an annual state-wide meeting in Sacramento on the day of the ENE. (Id. at 3.)

         The Court DENIES in part the joint motion as the Court is not persuaded that the bases identified by the parties' in their motion are best addressed by the requested continuance of the ENE and other deadlines set forth in the October 27, 2017 Order until after a ruling on the parties' pending and impending motions. For good cause shown, however, the Court GRANTS in part the joint motion by resetting the ENE and Case Management Conference (CMC) to December 13, 2017 at 1:45 PM and ordering the telephonic appearance of counsel only. The October 27, 2017 Order (ECF No. 15) is hereby amended as follows:

A telephonic, counsel-only Early Neutral Evaluation (“ENE”) of your case will be held on December 13, 2017, at 1:45 PM in the Chambers of Magistrate Judge Jill L. Burkhardt, Edward J. Schwartz U.S. Courthouse, 221 West Broadway, Suite 5140, San Diego, California 92101. Plaintiff's principal attorney responsible for the litigation is responsible for placing one joint call with all participating counsel already on the line into Chambers at (619) 557-6624.

         In the event the case does not settle at the ENE Conference, a Case Management Conference pursuant to Fed.R.Civ.P. 16(b) is SET for December 13, 2017, and will be held at the conclusion of the ENE Conference.

         The following are mandatory directions for the parties preparing for the ENE Conference. Absent express permission obtained from this Court, and notwithstanding the pendency of any motion, counsel shall timely comply with the dates and deadlines ordered herein.

         1. Purpose of Conference: The purpose of the ENE Conference 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 ENE Conference discussions will be informal, off the record, privileged and confidential. Counsel for any non-English speaking parties is responsible for arranging for the appearance of an interpreter at the ENE Conference.

         2. Personal Appearance of Parties Not Required: The principal attorneys responsible for the litigation, must appear by telephone and be legally and factually prepared to discuss settlement of the case. The principal attorneys are responsible for ensuring that all parties, adjusters for insured defendants, and other representatives of a party having full settlement authority as explained below may be reached by telephone should the need arise during the ENE conference. Counsel appearing without a means to contact their clients by telephone (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. If each of the principal attorneys responsible for the litigation are not listed on the docket as an “ATTORNEY TO BE NOTICED, ” then they each shall enter their appearance on the docket as soon as practicable, but in no event later than ten calendar days prior to the ENE conference.

         Unless there are extraordinary circumstances, persons required to attend the conference pursuant to this Order shall not be excused from attendance. Requests for excuse from attendance for extraordinary circumstances shall be made in writing at least ten calendar days prior to the conference. Failure to appear at the ENE conference will be grounds for sanctions.

         3. Full Settlement Authority Required[1]: In addition to counsel who will try the case, a party or party representative with full settlement authority must be available by telephone should the need to contact them arise at the conference. In the case of an entity, an authorized representative of the entity who is not retained outside counsel must be present and must have discretionary authority to commit the entity 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 available who can settle the case during the course of the conference without consulting a superior. Counsel for a United States government entity may be excused from this requirement so long as the government attorney who attends the ENE 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.

         3. ENE Statements Required: On or before December 4, 2017, the parties shall lodge statements of five pages or less directly to the chambers of Magistrate Judge Burkhardt outlining the nature of the case, the claims, the defenses, and the parties' positions regarding settlement of the case. The settlement position must include a specific and current demand or offer addressing all relief or remedies sought. If a specific demand or offer cannot be made at the time the brief is submitted, then the reasons therefor must be stated along with a statement as to when the party will be in a position to state a demand or offer. A general statement that a party will “negotiate in good faith, ” “offer a nominal cash sum, ” or “be prepared to make an offer at the conference” is not a specific demand or offer. The statement shall also list all attorney and non-attorney conference attendees for that side, including the name(s) and title(s)/position(s) of the party/party representative(s) who will attend and have settlement authority at the conference.

         ENE statements shall be lodged via email at efileburkhardt@casd.uscourts.gov. If exhibits are attached and the total submission amounts to more than 20 pages, a hard copy must also be delivered directly to chambers. Whether these statements are submitted confidentially or whether they are served on opposing counsel is within the parties' discretion. Statements of more than five pages will not be considered.

         4. Submission of Magistrate Judge Consent Form: No later than November 9, 2017, each party shall provide Plaintiff's counsel with an executed copy of the attached consent form, titled Notice, Consent, and Reference of a Civil Action to a Magistrate 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 by November 13, 2017. If the paper format filing reflects consent by all parties, then the form(s) will be forwarded to the assigned district judge for approval. The consent form(s) should not be filed with the court electronically through its Case Management/Electronic Case Filing (CM/ECF) system. No consent form will be made available, nor will its contents be made known to any judicial officer, unless all parties have consented to the reference to a magistrate judge. The parties are free to withhold consent without adverse substantive consequences. Questions related to the consent form(s) should be directed only to the clerk's office at 619-557-5600. Please do not call chambers' staff with questions related to the consent form(s).

         5. New Parties Must Be Notified by Plaintiff's Counsel: Plaintiff's counsel shall give notice of the ENE Conference and this Order to parties ...


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