1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 YOLANDA ESQUER and ISAAC Case No.: 3:23-cv-00434-MMA-AHG ESQUER, 13 NOTICE AND ORDER SETTING Plaintiffs, EARLY NEUTRAL EVALUATION 14 CONFERENCE AND CASE v. 15 MANAGEMENT CONFERENCE BMW OF NORTH AMERICA, LLC and VIA VIDEOCONFERENCE 16 DOES 1-10, inclusive, 17 Defendants. 18

19 IT IS ORDERED that an Early Neutral Evaluation (“ENE”) of your case will be held 20 on June 8, 20231 at 2:00 p.m. via videoconference before Magistrate Judge Allison H. 21 Goddard. In accordance with the Local Rules, the Court requires attendance of all parties, 22 party representatives, including claims adjusters for insured defendants, and the primary 23 attorney(s) responsible for the litigation via videoconference. CivLR 16.1(c)(1). 24 25 26 1 Local Rule 16.1(c) requires that an ENE take place within forty-five (45) days of the filing 27 of the first answer. Unfortunately, the Court’s calendar does not allow for compliance with the 45-day deadline in this case. The Court has set the ENE for the earliest date available 28 1 The Court issues the following Mandatory Procedures to be followed in 2 preparation for the ENE: 3 1. Purpose of the Conference: The purpose of the ENE is to permit an informal 4 discussion between the attorneys and the settlement judge of every aspect of the lawsuit in 5 an effort to achieve an early resolution of the case. All conference discussions will be 6 informal, off the record, and confidential. 7 2. Full Settlement Authority Required: A party or party representative with 8 full and complete authority to enter into a binding settlement must be present via 9 videoconference or immediately available to join. Full authority to settle means that a 10 person must be authorized to fully explore settlement options and to agree at that time to 11 any settlement terms acceptable to the parties. Heileman Brewing Co., Inc. v. Joseph Oat 12 Corp.,

(7th Cir. 1989). The person needs to have “unfettered discretion 13 and authority” to change the settlement position of a party. Pitman v. Brinker Int’l, Inc., 14

, 485–86 (D. Ariz. 2003). Limited or sum certain authority is not adequate. 15 Nick v. Morgan’s Foods, Inc.,

, 595–97 (8th Cir. 2001). A person who needs 16 to call another person who is not present on the videoconference before agreeing to 17 any settlement does not have full authority. 18 3. Confidential ENE Statements Required: No later than June 1, 2023, the 19 parties shall submit confidential statements of five (5) pages or less directly to the chambers 20 of Magistrate Judge Goddard outlining the nature of the case, the claims, and the defenses. 21 These statements shall not be filed or served on opposing counsel. They shall be lodged 22 via email at [email protected]. The ENE statement is limited to five (5) 23 pages or less, and up to five (5) pages of exhibits or declarations. Each party’s ENE 24 statement must outline: 25 A. the nature of the case and the claims, 26 B. position on liability or defense, 27 28 1 C. position regarding settlement of the case with a specific 2 demand/offer for settlement,3 and 3 D. any previous settlement negotiations or mediation efforts. 4 4. Case Management Conference: In the event the case does not settle at the 5 ENE, the Court will immediately thereafter hold a Case Management Conference (“CMC”) 6 pursuant to Fed. R. Civ. P. 16(b). Appearance of the parties at the CMC is not required. 7 The Court orders the following to occur before the CMC: 8 A. The parties must meet and confer pursuant to Fed. R. Civ. P. 26(f) no 9 later than May 5, 2023. Although the Court is unable to set the ENE 10 within the standard 45-day timeframe after the filing of the first 11 Answer, the Court will consider discovery to be open after the parties 12 have met and conferred pursuant to Rule 26, and will take this deadline 13 into account when setting the case schedule during the CMC. 14 B. Initial disclosures pursuant to Rule 26(a)(1)(A-D) must occur by 15 May 19, 2023. 16 C. The parties must file a Joint Case Management Statement by 17 May 29, 2023. The Joint Case Management Statement must address all 18 points in the “Joint Case Management Statement Requirements for 19 Magistrate Judge Allison H. Goddard,” which can be found on the court 20 website at: 21 https://www.casd.uscourts.gov/Judges/goddard/docs/Goddard%20Join 22 t%20Case%20Management%20Statement%20Rules.pdf. 23

24 25 2 A general statement, such as that a party “will negotiate in good faith,” is a not a specific demand or offer. 26

27 3 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 28 1 5. Appearances via Videoconference Required: All named parties, party 2 representatives, including claims adjusters for insured defendants, as well as principal 3 attorney(s) responsible for the litigation must attend the ENE via videoconference. All who 4 attend the ENE must be legally and factually prepared to discuss and resolve the case. 5 Counsel appearing without their clients (whether or not counsel has been given settlement 6 authority) will be subject to immediate imposition of sanctions. To facilitate the 7 videoconference ENE, the Court hereby orders as follows: 8 A. The Court will use its official Zoom video conferencing account to hold 9 the ENE. If you are unfamiliar with Zoom: Zoom is available on 10 computers through a download on the Zoom website 11 (https://zoom.us/meetings) or on mobile devices through the 12 installation of a free app.4 Joining a Zoom conference does not require 13 creating a Zoom account, but it does require downloading the .exe file 14 (if using a computer) or the app (if using a mobile device). Participants 15 are encouraged to create an account, install Zoom and familiarize 16 themselves with Zoom in advance of the ENE.5 There is a cost-free 17 option for creating a Zoom account. 18 B. Prior to the start of the ENE, the Court will email each participant an 19 invitation to join a Zoom video conference. Again, if possible, 20 participants are encouraged to use laptops or desktop computers for the 21 video conference, as mobile devices often offer inferior performance. 22 Participants shall join the video conference by following the ZoomGov 23

24 25 4 If possible, participants are encouraged to use laptops or desktop computers for the video conference, rather than mobile devices. 26

27 5 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- us/categories/200101697-Getting-Started 28 1 Meeting hyperlink in the invitation. Participants who do not have 2 Zoom already installed on their device when they click on the 3 ZoomGov Meeting hyperlink will be prompted to download and 4 install Zoom before proceeding. Zoom may then prompt participants 5 to enter the password included in the invitation. 6 C. Each participant should plan to join the Zoom video conference at least 7 five minutes before the start of the ENE to ensure that the conference 8 begins promptly at 2:00 p.m. 9 D. Zoom’s functionalities will allow the Court to conduct the ENE as it 10 ordinarily would conduct an in-person one. The Court will divide 11 participants into separate, confidential sessions, which Zoom calls 12 Breakout Rooms.6 In a Breakout Room, the Court will be able to 13 communicate with participants from a single party in confidence. 14 Breakout Rooms will also allow parties and counsel to communicate 15 confidentially without the Court. 16 E. No later than June 1, 2023, counsel for each party shall send an 17 email to the Court at [email protected] containing the 18 following: 19 i. The name and title of each participant, including all parties 20 and party representatives with full settlement authority, claims 21 adjusters for insured defendants, and the primary attorney(s) 22 responsible for the litigation; 23 ii. An email address for each participant to receive the Zoom 24 video conference invitation; 25 iii. A telephone number where each participant may be reached; 26 27 6 For more information on what to expect when participating in a Zoom Breakout 28 1 and 2 iv. A cell phone number for that party’s preferred point of 3 contact (and the name of the individual whose cell phone it is) 4 for the Court to use during the ENE to alert counsel via text 5 message that the Court will soon return to that party’s Breakout 6 Room, to avoid any unexpected interruptions of confidential 7 discussions. 8 F. All participants shall display the same level of professionalism during 9 the ENE and be prepared to devote their full attention to the ENE as if 10 they were attending in person, i.e., cannot be driving or in a car while 11 speaking to the Court. Because Zoom may quickly deplete the battery 12 of a participant’s device, each participant should ensure that their 13 device is plugged in or that a charging cable is readily available during 14 the video conference. 15 G. Counsel are advised that although the ENE will take place on Zoom, all 16 participants shall appear and conduct themselves as if it is proceeding 17 in a courtroom, i.e., all participants must dress in appropriate courtroom 18 attire. 19 H. If the case does not settle during the ENE, the Court will hold the CMC 20 immediately following the ENE with counsel only in the main session. 21 6. Requests for Continuances: Local Rule 16.1(c) requires that an ENE take 22 place within forty-five (45) days of the filing of the first answer. Requests to continue ENEs 23 are rarely granted. An ENE may be rescheduled only upon a showing of good cause and 24 adequate notice to the Court. Absent extraordinary circumstances, requests for 25 continuances will not be considered unless submitted in writing no less than seven (7) days 26 before the ENE. All requests for continuances must be made by a joint motion. The request 27 must state: 28 A. The original date; 1 B. | The number of previous requests for continuances; 2 C. A showing of good cause for the request; 3 D. Whether the request is opposed and why; 4 E. | Whether the requested continuance will affect other case management 5 dates; and 6 F. A declaration from the counsel seeking the continuance that describes 7 the steps taken to comply with the existing deadlines, and the specific 8 reasons why the deadlines cannot be met. 9 7. New Parties Must be Notified by Plaintiff or Plaintiffs Counsel: 10 || Plaintiff's counsel must give notice of the ENE to any Defendants who have been served 11 who have not yet filed responsive pleadings as of the date of this Order. If any 12 || Defendants have not yet been served, Plaintiff's counsel must serve them with a copy of 13 Order along with the summons and complaint. 14 8. The failure of any party to follow these mandatory procedures shall result 15 the imposition of sanctions. 16 9. Questions regarding this case or these mandatory guidelines may be directed 17 || to Judge Goddard’s law clerks at (619) 557-6162. Lodged statements should be emailed to 18 |/efile_ [email protected]. 19 10. A Notice of Right to Consent to Trial Before a United States Magistrate Judge 20 attached for your review and consideration. 21 IT IS SO ORDERED. 22 || Dated: April 4, 2023 23 _Abiomt. Xl Honorable Allison H. Goddard 24 United States Magistrate Judge 25 26 27 28

1 NOTICE OF RIGHT TO CONSENT TO TRIAL 2 BEFORE A UNITED STATES MAGISTRATE JUDGE 3 4 In accordance with the provisions of

(c), you are notified that a 5 U.S. Magistrate Judge of this district may, upon the consent of all parties, conduct any or 6 all proceedings, including a jury or non-jury trial, and order the entry of a final judgment. 7 Consent forms are available in the Clerk’s Office, and one is attached to this notice. 8 Plaintiff or counsel for the plaintiff is responsible to obtain the consent of all parties, 9 should they want to consent. 10 Be aware that your decision to consent or not to consent is entirely voluntary, 11 and should be communicated solely to the Clerk of Court. Only if all parties consent 12 will the Judge or Magistrate Judge to whom the case has been assigned be informed of 13 your decision. 14 Judgments of U.S. Magistrate Judges are appealable to the U.S. Court of Appeals 15 in accordance with this statute and the Federal Rules of Appellate Procedure. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 SOUTHERN DISTRICT OF CALIFORNIA 2

3 YOLANDA ESQUER and ISAAC ESQUER, Case No.: 3:23-cv-00434-MMA-AHG 4 Plaintiff, NOTICE, CONSENT, AND 5 v. REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE 6 BMW OF NORTH AMERICA, LLC and 7 DOES 1-10, inclusive, Defendants. 8

9

Notice of a magistrate judge's availability. A United States magistrate judge of this court is 10 available to conduct all proceedings in this civil action (including a jury or nonjury trial) and to 11 order the entry of a final judgment. The judgment may then be appealed directly to the United States court of appeals like any other judgment of this court. A magistrate judge may exercise this 12 authority only if all parties voluntarily consent. 13 You may consent to have your case referred to a magistrate judge, or you may withhold your consent without adverse substantive consequences. The name of any party withholding consent will 14 not be revealed to any judge who may otherwise be involved with your case. 15 Consent to a magistrate judge's authority. The following parties consent to have a United States 16 magistrate judge conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings. 17 Printed Names Signatures of parties and attorneys Dates 18

19 20 21 22 23 REFERENCE ORDER 24 IT IS ORDERED: This case is referred to United States Magistrate Allison H. Goddard, to conduct all proceedings and order entry of a final judgment in accordance with 28 U.S.C. 25 § 636(c) and Fed. R. Civ. P. 73. 26

27 Date United States District Judge 28