Dawson Jr. v. Santander Consumer USA, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 LUTHER C. DAWSON, JR., Case No.: 22cv849-JLS (MSB) 12 Plaintiff, ORDER: 13 v. (1) GRANTING EX PARTE APPLICATION TO CHANGE EARLY NEUTRAL 14 SANTANDER CONSUMER USA, INC., et al., EVALUATION DATE [ECF NO. 8]; AND 15 Defendants. (2) SUA SPONTE CONVERTING THE EARLY NEUTRAL EVALUATION [16] CONFERENCE AND CASE MANAGEMENT 17 CONFERENCE TO VIDEO CONFERENCES [18] 19 On July 25, 2022, Defendant Santander Consumer USA, Inc. (“Santander”) filed an 20 “Ex Parte Application to Change Early Neutral Evaluation Date Due to Party and Counsel 21 Unavailability.” (ECF No. 8.) In the motion, Santander explains that it has two conflicts 22 with the August 17, 2022 Early Neutral Evaluation (“ENE”) date previously set by this 23 court: its party representative is scheduled to attend a mediation in another case and 24 its counsel will be away on a preplanned international vacation. (Id. at 2; ECF No. 8-1 at 25 2-3.) Counsel for Plaintiff and Defendant Experian indicated to Santander’s counsel that 26 their clients do not oppose continuing the ENE and Case Management Conference 27 (“CMC”), provided the new date works with the schedules of the parties and their 2 counsel informed the Court via email, copied to counsel for all parties, that all necessary 3 participants as required by the Court’s Notice and Order for Early Neutral Evaluation 4 Conference and Case Management Conference [ECF No. 7] are available on August 31, 5 2022, at 9:30 a.m. 6 Based on the foregoing, the Court finds good cause to GRANT the ex parte 7 application and CONTINUE the ENE/CMC. Additionally, the Court sua sponte CONVERTS 8 the ENE/CMC to video conferences. The Court ORDERS as follows: 9 The ENE and CMC previously scheduled for August 17, 2022, are CONTINUED to 10 August 31, 2022, at 9:30 a.m., and will be held via video conference through the Court’s 11 ZoomGov account. All discussions at the ENE Conference will be informal, off the 12 record, privileged, and confidential. Counsel for any non-English speaking party is 13 responsible for arranging for the appearance of an interpreter at the conference. The 14 following rules and deadlines apply: 15 1. Personal Appearance of Parties Required: All named parties, party 16 representatives, including claims adjusters for insured defendants, as well as the 17 principal attorney(s) responsible for the litigation, must participate in the video 18 conference, and be legally and factually prepared to discuss and resolve the case. 19 Counsel appearing without their clients (whether or not counsel has been given 20 settlement authority) will be cause for immediate imposition of sanctions and may also 21 result in the immediate termination of the conference. 22 2. Full Settlement Authority Required: A party or party representative with 23 full settlement authority1 must be present at the conference. Retained outside [25] 1 “Full settlement authority” means that the individuals at the settlement conference must be [26] authorized to fully explore settlement options and to agree at that time to any settlement terms 27 acceptable to the parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). 2 representative who has the authority to negotiate and enter into a settlement. 3 3. Confidential ENE Statements Required: No later than August 24, 2022, the 4 parties shall submit directly to Magistrate Judge Berg’s chambers (via hand delivery or 5 by e-mail to the Court at efile_berg@casd.uscourts.gov), confidential settlement 6 statements. The ENE statement is limited to five (5) pages or less, and up to five (5) 7 pages of exhibits or declarations. Each party’s ENE statement must outline (1) the 8 nature of the case and the claims, (2) position on liability or defense, (3) position 9 regarding settlement of the case with a specific demand/offer for settlement, and 10 (4) any previous settlement negotiations or mediation efforts. 11 If a specific demand or offer cannot be made at the time the ENE statement is 12 submitted, then the reasons as to why a demand or offer cannot be made must be 13 stated. Further, the party must explain when they will be in a position to state a 14 demand or offer. General statements such as a party will “negotiate in good faith” is 15 not a specific demand or offer. The ENE statement should be submitted confidentially 16 and need not be shared with other parties. 17 4. The Court will use its official Zoom video conferencing account to hold the 18 ENE. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on computers through a 19 download on the Zoom website (https://zoom.us/meetings) or on mobile devices 20 through the installation of a free app.2 Joining a Zoom conference does not require 21 creating a Zoom account, but it does require downloading the .exe file (if using a [23] 24 party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481 , 485–86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement authority to attend the conference contemplates that the person’s [25] view of the case may be altered during the face to face conference. Id. at 486 . A limited or a sum 26 certain of authority is not adequate. See Nick v. Morgan’s Foods, Inc., 270 F.3d 590 , 595–97 (8th Cir. 2001). 27 2 If possible, participants are encouraged to use laptops or desktop computers for the video conference, 2 an account, install Zoom, and familiarize themselves with Zoom in advance of the ENE.3 3 There is a cost-free option for creating a Zoom account. 4 5. Prior to the start of the ENE, the Court will e-mail each ENE participant an 5 invitation to join a Zoom video conference. Again, if possible, participants are 6 encouraged to use laptops or desktop computers for the video conference, as mobile 7 devices often offer inferior performance. Participants shall join the video conference by 8 following the ZoomGov Meeting hyperlink in the invitation. Participants who do not 9 have Zoom already installed on their device when they click on the ZoomGov Meeting 10 hyperlink will be prompted to download and install Zoom before proceeding. Zoom 11 may then prompt participants to enter the password included in the invitation. All 12 participants will be placed in a waiting room until the ENE begins. 13 6. Each participant should plan to join the Zoom video conference at least five 14 minutes before the start of the ENE to ensure that the ENE begins promptly at 9:30 a.m. 15 The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin at 16 the Court-scheduled time. 17 7. Zoom’s functionalities will allow the Court to conduct the ENE as it 18 ordinarily would conduct an in-person ENE. That is, the Court will begin the ENE with all 19 participants joined together in a main session. After an initial discussion in the main 20 session, the Court will divide participants into separate, confidential sessions, which 21 Zoom calls Breakout Rooms.4 In a Breakout Room, the Court will be able to 22 communicate with participants from a single party in confidence. Breakout Rooms will 23 also allow parties and counsel to communicate confidentially without the Court. 24 / / / [26] 3 For help getting started with Zoom, visit: https://support.zoom.us/hc/en-us/categories/20010169727 Getting-Started. 2 to the Court at efile_berg@casd.uscourts.gov containing the following: 3 a. The name and title of each participant, including all parties and 4 party representatives with full settlement authority, claims adjusters for insured 5 defendants, and the primary attorney(s) responsible for the litigation; 6 b. An e-mail address for each participant to receive the Zoom video 7 conference invitation; and 8 c. A telephone number where each participant may be reached so that 9 if technical difficulties arise, the Court will be able to proceed telephonically instead of 10 by video conference. (If counsel prefers all participants of their party on a single 11 conference call, counsel may provide a conference number and appropriate call-in 12 information, including an access code, where all counsel and parties or party 13 representatives for that side may be reached as an alternative to providing individual 14 telephone numbers for each participant.) 15 9. All participants shall display the same level of professionalism during the 16 ENE and be prepared to devote their full attention to the ENE as if they were attending 17 in person. Because Zoom may quickly deplete the battery of a participant’s device, each 18 participant should ensure that their device is plugged in or that a charging cable is 19 readily available during the video conference. 20 10. New Parties Must be Notified by Plaintiff or Plaintiff’s Counsel: Plaintiff’s 21 counsel shall give notice of the ENE to parties responding to the complaint after the 22 date of this notice. 23 11. Case Management Conference: If the case does not settle during the ENE, 24 the Court will conduct the Case Management Conference. In preparation for this 25 conference, the parties must do the following: 26 a. Meet and confer pursuant to Fed. R. Civ. P. 26(f) no later than 27 August 17, 2022; 2 Agreements made in the Joint Discovery Plan will be treated as binding stipulations that 3 are effectively incorporated into the Court’s Case Management Order. The Joint 4 Discovery Plan must be one document and must cover the parties’ views and proposals 5 for each item identified in Fed. R. Civ. P. 26(f)(3). In addition, the Joint Discovery Plan 6 must include the following: 7 i. Service: A statement as to whether any parties remain to be 8 served and, if so, a proposed deadline for service; 9 ii. Amendment of Pleadings: The extent to which parties, claims, or 10 defenses are expected to be added or dismissed and a proposed deadline for amending 11 the pleadings; 12 iii. Protective Order: Whether a protective order is contemplated to 13 cover the exchange of confidential information and, if so, the date by which the 14 proposed order will be submitted to the Court; 15 iv. Privilege: The procedure the parties plan to use regarding claims 16 of privilege and whether an order pursuant to Fed. R. Evid. 502 will be sought; 17 v. Evidence Preservation: Whether the parties have discussed 18 issues related to the preservation of relevant evidence and if there are areas of 19 disagreement, how the parties are resolving them; 20 vi. Electronic Discovery: In addition to the requirements set forth in 21 Fed. R. Civ. P. 26(f)(3)(C), the parties must describe their agreements regarding 22 methodologies for locating and producing electronically stored information and the 23 production of metadata, and must identify any issues or agreements regarding 24 electronically stored information that may not be reasonably accessible (see Fed. R. Civ. 25 P. 26 (b)(2)(B)); 26 / / / 27 / / / 1 vii. Discovery: In addition to the requirements of Fed. R. Civ. P. 2 || 26(f)(3)(B), the parties must describe the discovery taken to date (if any), any proposed 3 || limitations or modifications of the discovery rules, and any identified discovery disputes; [4] 5 viii. Related Cases: Any related cases or proceedings pending before 6 || another judge of this court, or before another court or administrative body. 7 C. Exchange initial disclosures pursuant to Rule 26(a)(1)(A-D) no later than 8 || August 24, 2022. 9 12. Requests to Continue an ENE Conference: Requests to continue ENEs are 10 |/rarely granted. An ENE may be rescheduled only upon a showing of good cause and 11 || adequate notice to the Court. Absent good cause, requests for continuances will not 12 considered unless submitted in writing no fewer than seven (7) calendar days prior 13 the scheduled conference. 14 The deadline and requirements in the instant Order supersede those from the 15 Court’s previous Notice and Order for Early Neutral Evaluation Conference and Case 16 || Management Conference [ECF No. 7]. 17 IT IS SO ORDERED. 18 || Dated: July 26, 2022 __— i IFA 0 Honorable Michael S. Berg United States Magistrate Judge