Hairston v. Salazar

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA KEVIN TYRONE IZAL HAIRSTON, Case No.: 22-cv-1800-MMA-KSC 12 Plaintiff, NOTICE AND ORDER SETTING v. EARLY NEUTRAL EVALUATION CONFERENCE AND CASE J. SALAZAR et al., MANAGEMENT CONFERENCE Defendants.

IT IS ORDERED an Early Neutral Evaluation (“ENE”) of your case will be held on June 12, 2023 at 2:00 p.m. before Magistrate Judge Karen S. Crawford. If the case does not settle during the ENE, the Court will conduct a Case Management Conference (“CMC”) pursuant to Federal Rule of Civil Procedure 16(b) immediately following the conclusion of the ENE.

Absent express permission obtained from this Court, and notwithstanding the pendency of any motion, the parties must timely comply with the dates and deadlines herein.

1 1. Review of Chambers Rules: Counsel must refer to the Civil Local Rules, the undersigned’s Chambers Rules for Civil Cases, and the Chambers Rules of the assigned District Judge, which are accessible via the Court’s website at www.casd.uscourts.gov.

4 Plaintiff may file an ex parte application requesting the Court provide print copies of these rules if plaintiff is unable to access them through the Court’s website.

6 2. Purpose of the ENE: The purpose of the ENE is to permit an informal discussion between the parties, counsel, and the Magistrate Judge of the lawsuit to achieve an early resolution of the case. Counsel and parties must be prepared to engage in a detailed discussion of the merits of the case and engage in good faith settlement discussions. All discussions during the ENE are informal, off the record, privileged, and confidential.

11 3. Full Settlement Authority Is Required: Pursuant to Civil Local Rule 16.1.c.1, all parties, party representatives (including claims adjusters for insured parties), and the principal attorney(s) responsible for the litigation must participate in the ENE. This appearance must be made with full and unlimited authority to negotiate and enter into a binding settlement.2 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.

17 The Court does not require participation by California Department of Corrections and Rehabilitation (“CDCR”) employees named as defendants in cases brought by an 1 References to “counsel” or “attorney(s)” include plaintiff and any other self- represented party.

2 Full authority to settle means that the individuals attending the ENE are 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 Int’l, Inc., 216 F.R.D. 481, 485-486 (D. Ariz. 2003). One of the purposes of requiring a person with unlimited settlement authority to attend the conference is that the person’s view of the case may be altered during the face-to-face conference. Pitman, 216 F.R.D. at 486. Limited or sum certain authority is inadequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-597 (8th incarcerated litigant alleging violations of 28 U.S.C. § 1983; however, any such defendants must be available to be reached by telephone for the duration of the ENE. The party- attendance requirement for CDCR employees may be satisfied by these individuals being available by telephone, in combination with the appearance of a CDCR representative with authority to negotiate a settlement that fully resolves the case.

6 4. Procedure for Zoom Videoconference Appearance: The Court will use its Zoom video conferencing account to host the ENE and CMC. The Court will email participants an invitation with a hyperlink to attend the ENE and CMC by Zoom.

9 Each participant should plan to join the Zoom video conference at least five minutes before the start of the ENE to ensure the conference begins on time. All participants will be placed in a waiting room until the ENE begins.

12 Zoom’s functionalities allow the Court to conduct the ENE as it ordinarily would conduct an in-person one. The Court will divide participants into separate, confidential sessions, which Zoom calls Breakout Rooms. In a Breakout Room, the Court can communicate confidentially with participants from a single party and parties and counsel may also communicate confidentially outside the presence of the Court.

17 During the ENE participants must display the same level of professionalism and be prepared to devote their full attention as if they were attending in person (e.g., participants may not be driving or otherwise distracted while speaking to the Court).

20 Because Zoom may quickly deplete the battery of a participant’s device, participants should ensure their device is plugged in or a charging cable is readily available.

22 5. Defense Counsel Must Coordinate Plaintiff’s Participation: 23 If plaintiff is incarcerated, defense counsel must coordinate plaintiff’s appearance with the penal institution. Seven (7) days prior to the ENE, defense counsel3 must e-mail the Court ([email protected]) the following information: If plaintiff is not incarcerated, plaintiff must send the Court an email with the same 1 a. The name and title of each participant, including all parties and party 2 representatives with full settlement authority, claims adjusters for any insured 3 defendants, and the primary attorney(s) responsible for the litigation; 4 b. An e-mail address for each participant to receive the Zoom video conference 5 invitation; and 6 c. A telephone number where each participant may be reached if technical 7 difficulties arise with Zoom, so the Court can proceed telephonically instead 8 of by video conference. (Counsel may provide a conference line number as 9 an alternative to providing individual telephone numbers for each participant.)

10 6. Confidential ENE Statements Required: No later than seven (7) days before the ENE, each party must lodge a Confidential ENE Statement by email ([email protected]). Plaintiff’s ENE Statement may be lodged by U.S. Mail if plaintiff cannot lodge it by email, but plaintiff must mail the statement with enough time to ensure delivery 7 days before the ENE. These statements are not to be filed on the CM/ECF system or served on other parties.

16 The ENE Statement must not exceed five (5) pages, excluding exhibits (and not exceed 20 pages including exhibits), and must include: 18 a. A brief description of the case and the claims and defenses asserted; 19 b. The party's position on liability and damages supported by relevant facts 20 and controlling legal authority; 21 c. A specific and current demand or offer for addressing all relief or remedies 22 sought, and the specific basis for that relief. If a party can not make a 23 specific demand or offer for settlement, the party must state the reasons 24 why and explain what additional information is required to make a 25 settlement demand or offer (a statement that a party will “negotiate in 26 good faith,” “offer a nominal cash sum,” or “be prepared to make a 27 demand or offer at the conference” is not a specific demand or offer); 28 and 1 d. A brief description of any previous settlement negotiations.

2 7. Case Management Conference: If the case does not settle during the ENE, 3 Court will immediately proceed with the CMC. The Court generally issues a written ||Scheduling Order after the CMC.

5 8. Requests to Continue an ENE: Civil Local Rule 16.1.c.1 requires the ENE 6 place within 45 days of the filing of the first Answer. Any request to continue the |{ENE must be made by Joint Motion to the greatest extent practical. Ex parte requests by || defendant(s) to continue the ENE must satisfy Chambers and Civil Local Rules for ex parte || applications and must describe efforts made to give plaintiff notice.

10 9. Settlement Before the ENE: The Court encourages the parties to work on || settling the matter in advance of the ENE. If the parties resolve the matter before the ENE, ||counsel must promptly file a Joint Motion for Dismissal or a Notice of Settlement.

13 10. New Parties Must Be Notified by Defense Counsel: Counsel for the first ||defendant who appears in this action must provide a copy of this Order to parties 15 responding to the complaint after the date of this notice.

16 Questions regarding this case or the mandatory guidelines set forth herein may be || directed to the Magistrate Judge’s law clerks at (619) 446-3964.

18 A Notice of Right to Consent to Trial Before a United States Magistrate Judge is || attached for your information.

20 IT IS SO ORDERED.

21 ||Dated: May 12, 2023 4 yy y-), 22 MUD Se 73 Hon. Karen 8. Crawford United States Magistrate Judge 2 NOTICE OF RIGHT TO CONSENT TO TRIAL 3 BEFORE A UNITED STATES MAGISTRATE JUDGE 5 IN ACCORDANCE WITH THE PROVISIONS OF 28 U.S.C. § 636(c), YOU ARE HEREBY NOTIFIED THAT A U.S. MAGISTRATE JUDGE OF THIS DISTRICT MAY, UPON THE CONSENT OF ALL PARTIES, ON FORM 1A AVAILABLE IN THE CLERK’S OFFICE, CONDUCT ANY OR ALL PROCEEDINGS, INCLUDING A JURY OR NON-JURY TRIAL, AND ORDER THE ENTRY OF A FINAL JUDGMENT.

10 COUNSEL FOR THE PLAINTIFF SHALL BE RESPONSIBLE FOR OBTAINING THE CONSENT OF ALL PARTIES, SHOULD THEY DESIRE TO CONSENT.

12 YOU SHOULD BE AWARE THAT YOUR DECISION TO CONSENT OR NOT TO CONSENT IS ENTIRELY VOLUNTARY. ONLY IF ALL PARTIES CONSENT WILL THE JUDGE OR MAGISTRATE JUDGE TO WHOM THE CASE HAS BEEN ASSIGNED BE INFORMED OF YOUR DECISION.

16 JUDGMENTS OF THE U.S. MAGISTRATE JUDGES ARE APPEALABLE TO THE U.S. COURT OF APPEALS IN ACCORDANCE WITH THIS STATUTE AND THE FEDERAL RULES OF APPELLATE PROCEDURE.