Opinion
3:21-cv-01079-MMA-AHG
11-12-2021
NATIONAL PUBLIC RADIO, INC. and GRAHAM SMITH, Plaintiffs v. U.S. CENTRAL COMMAND and U.S. DEPARTMENT OF DEFENSE, Defendants
ORDER:
1) VACATING MOTION HEARING SET FOR NOVEMBER 16, 2021 [ECF No. 11],
2) GRANTING PLAINTIFFS’ MOTION FOR EARLY NEUTRAL EVALUATION CONFERENCE [ECF No. 10], and
3) SETTING EARLY NEUTRAL EVALUATION CONFERENCE AND CASE MANAGEMENT CONFERENCE VIA VIDEOCONFERENCE
HONORABLE ALLISON H. GODDARD, UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiffs’ Motion for Pre-Answer Early Neutral Evaluation Conference. ECF No. 10.
On June 9, 2021, Plaintiffs filed suit in this district, alleging violations of the Freedom of Information Act, and seeking records from Defendants relating to a “a suspected friendly fire incident that took place in Fallujah, Iraq on 12 April, 2004.” ECF No. 1. On August 2, 2021, Defendants filed a motion to dismiss Plaintiffs’ complaint. ECF No. 6. 1 As such, no Defendant answered Plaintiffs’ complaint. On November 4, 2021, Plaintiffs filed the instant motion, requesting that an Early Neutral Evaluation Conference (“ENE”) be scheduled before any answer had been filed. ECF No. 10; see CivLR 16.1(c)(1). On November 10, 2021, the Court denied Defendants’ motion to dismiss, and ordered Defendants “to file a response within the time specified by Federal Rule of Civil Procedure 12(a)(4)(A).” ECF No. 12 at 9. On November 12, 2021, Defendants filed a Notice of Non-Opposition to the instant motion, stating that “they do not oppose Plaintiffs’ request that the Court schedule an Early Neutral Evaluation.” ECF No. 13. The Court finds that this motion is suitable for determination on the papers and without oral argument in accordance with Civil Local Rule 7.1(d)(1). As such, the motion hearing scheduled for November 16, 2021 is VACATED.
In this district, the Court generally conducts ENEs within forty-five days of the filing of an answer. See CivLR 16.1(c)(1) (“Within forty-five (45) days of the filing of an answer, counsel and the parties must appear before the assigned judicial officer supervising discovery for an early neutral evaluation conference”); Seoane v. Lexisnexis Risk Data Mgmt., No. 11cv0908 L-WMc, 2011 WL 2132844, at *1 (S.D. Cal. May 26, 2011); Yang v. DTS Financial Group, 570 F.Supp. 2d 1257, 1261 (S.D. Cal. 2008). However, “[a]t any time after the filing of a complaint and before an answer has been filed, counsel for any party may make a request in writing to the judicial officer assigned to supervise discovery in the case to hold an early neutral evaluation conference[.]” CivLR 16.1(c)(1). Upon such a request, the Court “will examine the circumstances of the case and the reasons asserted for the request[,]” and determine whether an expedited ENE would reduce the “expense and delay” of litigation. Id.; Seoane, 2011 WL 2132844, at *1.
Upon due consideration of this case’s procedure history (see ECF Nos. 12, 13), and good cause appearing, the Court GRANTS Plaintiffs’ unopposed motion. ECF No. 10. Accordingly, the Court ORDERS as follows: 2
IT IS ORDERED that an Early Neutral Evaluation (“ENE”) of your case will be held on December 15, 2021 at 9:30 a.m. before Magistrate Judge Allison H. Goddard. In accordance with the Local Rules, the Court requires personal attendance of all parties, party representatives, including claims adjusters for insured defendants, and the primary attorney(s) responsible for the litigation. CivLR 16.1(a). However, due to the current COVID-19 public emergency, and upon due consideration, the Court hereby MODIFIES the ENE to be via videoconference for all attendees.
On March 2, 2021, Chief Judge Dana M. Sabraw issued an Order in response to the COVID-19 public emergency (“CJO #62”) which, among other things, suspends the requirement under Civil Local Rule 16.1(a) that ENEs be conducted in person. See CJO #62 at 1. CJO #62 is available on the Court website at https://www.casd.uscourts.gov/assets/pdf/rules/Chief%20Judge%20Order%2062%20-%20Civil%20Case%20Proceedings%20During%20the%20Covid- 19%20Public%20Emergency.pdf. The suspension of the requirement under Civil Local Rule 16.1(a) that ENEs be conducted in person is also reiterated by CJO #62-B, filed on June 11, 2021. CJO #62-B is available on the Court website at https://www.casd.uscourts.gov/assets/pdf/rules/Chief%20Judge%20Order%2062-B.pdf.
The Court issues the following Mandatory Procedures to be followed in preparation for the ENE:
1. Purpose of the Conference: The purpose of the ENE is to permit an informal discussion between the attorneys and the settlement judge of every aspect of the lawsuit in an effort to achieve an early resolution of the case. All conference discussions will be informal, off the record, and confidential.
2. Full Settlement Authority Required: A party or party representative with full and complete authority to enter into a binding settlement must be present via videoconference or immediately available to join. Full authority to settle means that a person must be 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, 653 (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, 485-86 (D. Ariz. 2003). 3 Limited or sum certain authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-97 (8th Cir. 2001). A person who needs to call another person who is not present on the videoconference before agreeing to any settlement does not have full authority.
3. Confidential ENE Statements Required: No later than December 8, 2021, the parties shall submit confidential statements of five (5) pages or less directly to the chambers of Magistrate Judge Goddard outlining the nature of the case, the claims, and the defenses. These statements shall not be filed or served on opposing counsel. They shall be lodged via email at efilegoddard@casd.uscourts.gov. The ENE statement is limited to five (5) pages or less, and up to five (5) pages of exhibits or declarations. Each party’s ENE statement must outline:
A. the nature of the case and the claims,
B. position on liability or defense,
C. position regarding settlement of the case with a specific demand/offer for settlement, and
D. any previous settlement negotiations or mediation efforts.
A general statement, such as that a party “will negotiate in good faith,” is a not a specific demand or offer.
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 party must explain when they will be in a position to state a demand or offer.
4. Case Management Conference: In the event the case does not settle at the ENE, the Court will immediately thereafter hold a Case Management Conference (“CMC”) pursuant to Fed. R. Civ. P. 16(b). Appearance of the parties at the CMC is not required. The Court orders the following to occur before the CMC:
A. The parties must meet and confer pursuant to Fed. R. Civ. P. 26(f) no later than November 30, 2021 .4
B. The parties must file a Joint Case Management Statement by December 7, 2021 . The Joint Case Management Statement must address all points in the “Joint Case Management Statement Requirements for Magistrate Judge Allison H. Goddard,” which can be found on the court website at: https://www.casd.uscourts.gov/Judges/goddard/docs/Goddard%20Join t%20Case%20Management%20Statement%20Rules.pdf.
C. Initial disclosures pursuant to Rule 26(a)(1)(A-D) must occur by December 14, 2021 .
5. Appearances via Videoconference Required: All named parties, party representatives, including claims adjusters for insured defendants, as well as principal attorney(s) responsible for the litigation must attend the ENE via videoconference. All who attend the ENE must be legally and factually prepared to discuss and resolve the case. Counsel appearing without their clients (whether or not counsel has been given settlement authority) will be subject to immediate imposition of sanctions. To facilitate the videoconference ENE, the Court hereby orders as follows:
A. The Court will use its official Zoom video conferencing account to hold the ENE. If you are unfamiliar with Zoom: Zoom is available on computers through a download on the Zoom website (https://zoom.us/meetings) or on mobile devices through the installation of a free app. Joining a Zoom conference does not require creating a Zoom account, but it does require downloading the .exe file (if using a computer) or the app (if using a mobile device). Participants are encouraged to create an account, install Zoom and familiarize5
themselves with Zoom in advance of the ENE. There is a cost-free option for creating a Zoom account.
B. Prior to the start of the ENE, the Court will email each participant an invitation to join a Zoom video conference. Again, if possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. Participants shall join the video conference by following the ZoomGov Meeting hyperlink in the invitation. Participants who do not have Zoom already installed on their device when they click on the ZoomGov Meeting hyperlink will be prompted to download and install Zoom before proceeding. Zoom may then prompt participants to enter the password included in the invitation. All participants will be placed in a waiting room until the ENE begins.
C. Each participant should plan to join the Zoom video conference at least five minutes before the start of the ENE to ensure that the conference begins promptly at 9:30 a.m.
D. Zoom’s functionalities will 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 will be able to communicate with participants from a single party in confidence. Breakout Rooms will also allow parties and counsel to communicate confidentially without the Court.6
E. No later than December 8, 2021 , counsel for each party shall send an e-mail to the Court at efile goddard@casd.uscourts.gov containing the following:
i. The name and title of each participant, including all parties and party representatives with full settlement authority, claims adjusters for insured defendants, and the primary attorney(s) responsible for the litigation;
ii. An e-mail address for each participant to receive the Zoom video conference invitation; and
iii. A telephone number where each participant may be reached so that if technical difficulties arise, the Court will be in a position to proceed telephonically instead of by video conference. (If counsel prefers to have all participants of their party on a single conference call, counsel may provide a conference number and appropriate call-in information, including an access code, where all counsel and parties or party representatives for that side may be reached as an alternative to providing individual telephone numbers for each participant.)
iv. A cell phone number for that party’s preferred point of contact (and the name of the individual whose cell phone it is) for the Court to use during the ENE to alert counsel via text message that the Court will soon return to that party’s Breakout Room, to avoid any unexpected interruptions of confidential discussions.
F. All participants shall display the same level of professionalism during the ENE and be prepared to devote their full attention to the ENE as if they were attending in person, i.e., cannot be driving while speaking to the Court. Because Zoom may quickly deplete the battery of a7
participant’s device, each participant should ensure that their device is plugged in or that a charging cable is readily available during the video conference.
G. Counsel are advised that although the ENE will take place on Zoom, all participants shall appear and conduct themselves as if it is proceeding in a courtroom, i.e., counsel must dress in appropriate courtroom attire.
H. If the case does not settle during the ENE, the Court will hold the CMC immediately following the ENE with counsel only in the main session.
If possible, participants are encouraged to use laptops or desktop computers for the video conference, rather than mobile devices.
For help getting started with Zoom, visit: https://support.zoom.us/hc/enus/categories/200101697-Getting-Started
For more information on what to expect when participating in a Zoom Breakout Room, visit: https://support.zoom.us/hc/en-us/articles/115005769646
6. Requests for Continuances: Local Rule 16.1(c) requires that an ENE take place within forty-five (45) days of the filing of the first answer, and the answers in this case are due on November 24, 2021. See ECF Nos. 12, 13. Requests to continue ENEs are rarely granted. An ENE may be rescheduled only upon a showing of good cause and adequate notice to the Court. Absent extraordinary circumstances, requests for continuances will not be considered unless submitted in writing no less than seven (7) days before the ENE. All requests for continuances must be made by a joint motion. The request must state:
A. The original date;
B. The number of previous requests for continuances;
C. A showing of good cause for the request;
D. Whether the request is opposed and why;
E. Whether the requested continuance will affect other case management dates; and
F. A declaration from the counsel seeking the continuance that describes the steps taken to comply with the existing deadlines, and the specific reasons why the deadlines cannot be met.
7. New Parties Must be Notified by Plaintiff or Plaintiff’s Counsel: Plaintiff’s counsel must give notice of the ENE to any Defendants who have been served but who have not yet filed responsive pleadings as of the date of this Order. If any 8 Defendants have not yet been served, Plaintiff’s counsel must serve them with a copy of this Order along with the summons and complaint.
8. The failure of any party to follow these mandatory procedures shall result in the imposition of sanctions.
9. Questions regarding this case or these mandatory guidelines may be directed to Judge Goddard’s law clerks at (619) 557-6162. Lodged statements should be emailed to efile_goddard@casd.uscourts.gov.
10. A Notice of Right to Consent to Trial Before a United States Magistrate Judge is attached for your review and consideration.
IT IS SO ORDERED. 9
NOTICE OF RIGHT TO CONSENT TO TRIAL BEFORE A UNITED STATES MAGISTRATE JUDGE
In accordance with the provisions of 28 U.S.C. § 636(c), you are notified that a U.S. Magistrate Judge of this district may, upon the consent of all parties, conduct any or all proceedings, including a jury or non-jury trial, and order the entry of a final judgment. Consent forms are available in the Clerk’s Office, and one is attached to this notice. Plaintiff or counsel for the plaintiff is responsible to obtain the consent of all parties, should they want to consent.
Be aware that your decision to consent or not to consent is entirely voluntary, and should be communicated solely to the Clerk of Court. Only if all parties consent will the Judge or Magistrate Judge to whom the case has been assigned be informed of your decision.
Judgments of 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. 10
NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE
Notice of a magistrate judge's availability. A United States magistrate judge of this court is available to conduct all proceedings in this civil action (including a jury or nonjury trial) and to 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 authority only if all parties voluntarily consent.
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 not be revealed to any judge who may otherwise be involved with your case.
Consent to a magistrate judge's authority. The following parties consent to have a United States magistrate judge conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings.
REFERENCE ORDER
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. § 636(c) and Fed. R. Civ. P. 73. 11