1 NICHOLAS A. TRUTANICH United States Attorney 2 District of Nevada Nevada Bar Number 13644 3 PATRICK A. ROSE 4 Assistant United States Attorney Nevada Bar No. 5109 5 501 Las Vegas Boulevard South, Suite 1100 Las Vegas, Nevada 89101 6 Telephone: 702-388-6336 Email: [email protected] 7 Attorneys for the United States

8

9 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 10

11 Remedios Nelson, Case No. 2:18-cv-01515-MMD-NJK

12 Plaintiff, Motion for Exception from 13 v. Attendance Requirements for Settlement Conference 14 United States of America, through the United States Postal Service, an agency 15 of the Government of the United States of America, Does I-X; Roe Corporations 16 I-X, Defendants. 17 18 Federal Defendant, the United States, moves for an order excepting it from certain 19 requirements of the Order, ECF No. 39, setting a settlement conference, namely, “for a 20 representative with binding authority to settle this matter up to the full amount of the claim 21 or last demand made” to be present in person for the duration of the conference. Order 22 1:16-22. Federal Defendant respectfully requests that it be permitted to participate in the 23 settlement conference via the personal attendance of Assistant United States Attorney 24 Patrick A. Rose, who has litigated the case and has recommendation authority as to 25 potential settlements. 26 27 1 This motion is based on the following Memorandum of Points and Authorities, 2 along with all papers and pleadings on file. 3 Respectfully submitted this 7th day of February 2020.

4 NICHOLAS A. TRUTANICH United States Attorney 5 /s/ Patrick A. Rose 6 PATRICK A. ROSE Assistant United States Attorney 7

8

9 10 MEMORANDUM OF POINTS AND AUTHORITIES 11 I. Introduction 12 This case arises out of a car accident on August 6, 2015 between Plaintiff Nelson 13 and an employee of the United States Postal Service. Nelson was promptly admitted to the 14 hospital where an orthopedic surgeon repaired her fractured right radius bone. Other 15 asserted injuries and medical treatment are in dispute. 16 Following discovery and the entry of a joint pretrial order, the case has been set for 17 a settlement conference on June 17, 2020. The Order setting the settlement conference 18 requires, among other things, that “a representative with binding authority to settle this 19 matter up to the full amount of the claim or last demand made” be present in person for 20 the duration of the conference. Order 1:16-22, ECF No. 39. 21 Nelson has not made a settlement demand during the litigation. Her pre-litigation 22 demand to the Postal Service was $510,000, and she is precluded from recovering more 23 than that amount at trial, see Minute Order in Chambers, ECF No. 30. 24 II. Discussion 25 The federal government is unlike other litigants in terms of geographic breadth, 26 nature of issues, and number of cases. See United States v. Mendoza,

, 159 27 (1984). The authority to settle most civil cases against the government rests with varying 1 of Justice (“DOJ”) headquarters, depending on the dollar amount and the concurrence of 2 the client agency. See

(a); 28 C.F.R. Part 0, Subpart Y, Appendix. The 3 settlement authority, which has been delegated to United States Attorneys for defensive 4 cases, is limited to $1 million, and it may not be exercised where the client agency is 5 opposed to the proposed settlement. See

(d)(2); 28 C.F.R. Part 0, Subpart 6 Y, Appendix (e)(1)(iii). Nelson’s pre-litigation demand of $510,000 exceeds the amount of 7 settlement authority delegated by the United States Attorney to the Civil Chief, and civil 8 line AUSAs have not been delegated any standing settlement authority. With the client 9 agency’s (Postal Service’s) financial losses of billions of dollars in recent years, and no 10 funding or relief from Congress, the Postal Service has sought to lower its costs in a 11 number of ways including reductions in personnel, facilities, and authorized travel for 12 employees. The Postal Service’s tort litigation section has a relatively small number of 13 attorneys to address numerous claims and cases across the country. 14 As the advisory committee recognized, “[p]articularly in litigation in which 15 governmental agencies . . . are involved, there may be no one with on-the-spot settlement 16 authority, and the most that should be expected is access to a person who would have a 17 major role in submitting a recommendation to the body or board with ultimate decision- 18 making responsibility.” Fed. R. Civ. P. 16 advisory committee’s note (1993 amendment, 19 subdivision (c)). Additionally, a district court can consider alternative methods of 20 participation, such as via telephone. See United States v. United States Dist. Court,

(9th Cir. 2012). 22 The United States Attorney’s Office understands the importance of ENEs, 23 settlement conferences, and other alternate dispute resolution techniques in resolving civil 24 cases. This office has participated in many of them, in good faith, and consistent with the 25 authority set forth in the applicable regulations. Recommendations (through the respective 26 DOJ and client agency chains of command) regarding any particular settlement proposal 27 in this case will originate with the assigned AUSA, undersigned counsel. 1 Il. Conclusion 2 Based on the reasons and circumstances above, Federal Defendant respectfully 3 || requests that the Court grant this motion so as to as to allow AUSA Rose to personally 4 || attend and participate in the settlement conference in lieu of the personal attendance 5 || requirements otherwise set forth in the Order, ECF No. 39. 6 Respectfully submitted this 7th day of February 2020. 7 NICHOLAS A. TRUTANICH g United States Attorney 9 s/_ Patrick A. Rose PATRICK A. ROSE 10 Assistant United States Attorney 11 12 13 14 IS IT IS SO ORDERED. 16 Dated: February 10, 2020

18 Nancy J. Koppe — 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28