(PC) Baca v. Biter ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK BACA, Case No. 1:15-cv-01916-DAD-JDP (PC) 12 Plaintiff, ORDER REQUIRING DEFENDANTS TO SHOW CAUSE WHY SANCTIONS 13 v. SHOULD NOT ISSUE FOR FAILURE TO PARTICIPATE IN SCHEDULING 14 LARRY DILEO, et al., SETTLEMENT CONFERENCE IN GOOD FAITH 15 Defendants. FOURTEEN DAY DEADLINE 16 17 I. 18 RELEVANT BACKGROUND 19 Frank Baca, proceeding pro se and in forma pauperis, filed this action on December 28, 20 2015. (ECF No. 1.) Plaintiff’s first amended complaint was screened and found to state a 21 cognizable claim against three unnamed defendants. (ECF No. 10.) On February 7, 2017, 22 William Schmidt was selected from the court’s pro bono panel and was appointed to represent 23 Plaintiff in this matter and amended complaints were filed. (ECF No. 12.) Currently, this matter 24 is proceeding on the third amended complaint against Defendants J. Bal, M. Boparai, L. 25 Carmichael, J. Carrick, L. DiLeo, E. Dos Santos, R. Kanan, D. Ralston, G. Song, S. Tharratt, A. 26 Vasudeva, Jonathan Akanno and F. Igbinosa1 for deliberate indifference for failing to treat 27 1 Pursuant to stipulation of the parties, Defendants Schaeffer and Bzoskie, have been dismissed from this action. 1 Plaintiff’s Hepatits C virus in violation of the Eighth Amendment.2 (ECF Nos. 29, 40.) 2 As relevant here, on December 12, 2019, at the request of the parties, this matter was set 3 for a settlement conference before the undersigned. (ECF No. 141.) Pursuant to the December 4 12, 2019 order, the parties were to submit confidential settlement statements by January 10, 5 2020. Settlement statements were submitted on January 8, 2020, January 9, 2010, and January 6 10, 2020. (ECF Nos. 143, 144, 145.) 7 On January 15, 2020, the court received a telephone call and a follow up email3 from 8 counsel requesting that the settlement conference be vacated. An informal teleconference was 9 held on January 16, 2020 to address the issue. Counsel William Schmidt and Jeffrey Eisenger 10 appeared for Plaintiff. Counsel Jonathan Paul appeared for Defendants J. Bal, M. Boparai, L. 11 Carmichael, J. Carrick, L. DiLeo, E. Dos Santos, R. Kanan, D. Ralston, G. Song, S. Tharratt, and 12 A. Vasudeva. Counsel Elizabeth Frater appeared for Defendants Akanno and Igbinosa. 13 / / / 14 / / / 15 16 2 Although not named as a party in this action, the Court is aware that CDCR will indemnify the defendants in this action. 17 3 The email stated: 18 Subject: Baca v. Biter 1:15-cv-01916-MJS (PC) - Settlement Conference 19 Ms. Hernandez: 20 This email is a follow up to my earlier telephone call regarding the settlement conference set for this Friday in 21 the aforementioned case. 22 Please be advised that I have now met and conferred with all counsel in this matter and all agree that the settlement conference scheduled for his Friday should not go forward at this time. 23 As I indicated in my phone call, the staff counsel assigned from the California Department of Corrections had to 24 take an emergency leave of absence this past weekend and the matter was reassigned to another replacement counsel. I have been informed by the replacement counsel that it is CDCR’s position that the department will 25 only be offering a waiver of costs at the settlement conference. Given the foregoing, all counsel agree that it would serve no purpose to move forward with the scheduled conference in light of the foregoing position. 26 Plaintiff’s counsel, Mr. Schmidt has indicated that he objects to CDCR’s position and handling of this matter, but agrees that it would serve no purpose for the conference to go forward in light of the foregoing 27 circumstances. 1 II. 2 DISCUSSION 3 During the conference call, the parties confirmed that the settlement conference in this 4 matter had been set at their request. After counsel for this action went on emergency leave this 5 weekend, current counsel was informed by the California Department of Corrections and 6 Rehabilitation (“CDCR”) that it would only be offering a waiver of costs in settlement of this 7 action. At that time, the parties found that it would be futile to hold the settlement conference 8 and reached out to the court about vacating the scheduling conference. 9 The Court expects that, where the parties have requested a settlement conference, they 10 intend to engage in good faith negotiations to settle the matter. Although Plaintiff submitted a 11 settlement offer to the defendants, there was no counter offer made. Further, it is apparent from 12 the record that CDCR had decided that they would not be offering any amount in settlement of 13 this action prior to the confidential settlement statements being due. While Defendants requested 14 that Plaintiff participate in the settlement conference, he was not informed that there would be no 15 offer other than a waiver of costs to settle the action until a few days prior to the settlement 16 conference. By that time, Plaintiff’s counsel had expended time on preparing the settlement 17 statement and Plaintiff had been transferred to a facility closer to the courthouse so he could 18 attend the conference. 19 Initially, the Court notes that Defendants were not required to participate in a settlement 20 conference nor were they required to offer any amount in settlement of this action. The Court 21 does not intend to indicate that a waiver of costs would be an inappropriate offer, but it does find 22 Defendant’s conduct in this action concerning for reasons discussed below. This matter has been 23 proceeding since December 2015. (ECF No. 1.) The defendants filed motions to dismiss that 24 were denied (ECF No. 109) and there are currently pending motions for summary judgment 25 (ECF No. 127, 130). Defendants may take the position that there is no merit to Plaintiff’s claims 26 and he is unlikely to prevail at trial, however they were the parties that requested the settlement 27 conference. By having the Court set a settlement conference, Defendants caused Plaintiff’s 1 conference with the knowledge that they were not going to offer anything in settlement and that 2 this matter was unlikely to settle. Further, this Court has on two prior occasions conducted 3 settlement conferences during which the CDCR only offered a waiver of costs. 4 By moving forward with the settlement conference with knowledge that there would be 5 no settlement offer, Defendants caused Plaintiff to be transferred from Sierra Conservation Camp 6 where he was housed to Valley State Prison. The Court is not unaware of the disruption faced by 7 inmates when they are transferred to a new location, such as deprivation of their property and 8 loss of jobs and privileges at their previous facility even if they return. Causing such disruption 9 where it is apparent that settlement is futile is concerning because such action could be used for 10 the purpose of coercing the inmate to cease pursing his constitutional claims for fear of being 11 moved to different prisons in retaliation for filing lawsuits. 12 Additionally, this Court spends considerable time preparing for settlement conferences so 13 as to make it meaningful to the parties and results in a greater likelihood of settlement success. 14 Settlement is extremely important in this district where the judges have one of the highest 15 caseloads per judge in the United States. The Court set asides time to conduct the conference. 16 Two other litigants requested to set matters during this time period and their requests were 17 denied so that the Court’s full attention could be directed to settling this matter. This Court 18 conducts a large number of settlements for criminal and civil duty matters, which include time 19 conducting jury trial. The Court’s available time is limited but the Court desires to see that 20 parties get their claim/defenses adjudicated as quickly as possible. In fact on this date, the Court 21 was also hearing its criminal duty matters. 22 Finally, while the Court appreciates that current counsel notified Plaintiff and the Court 23 that no offer would be forthcoming and the settlement conference should be vacated, Defendants 24 were aware prior to submitting the confidential settlement statement that no offer would be 25 forthcoming in settlement. Once Defendants decided that no monetary offer would be made to 26 settle this matter and it was unlikely that this case would settle, Plaintiff’s counsel and the Court 27 should have been timely notified rather than allowing Plaintiff’s counsel to incur costs of 1 conference. 2 Rule 16 of the Federal Rules of Civil Procedure gives the Court the authority to issue 3 pretrial scheduling orders in civil cases, including orders to facilitate settlement of the case. Fed. 4 R. Civ. P. 16(a)(5). Rule 16(f) provides a mechanism to enforce compliance with the rule. Rule 5 16 provides that the court may issue any just order, including sanctions under Rule 37, if a party 6 or its attorney is “substantially unprepared to participate--or does not participate in good faith. . . 7 .” Fed. R. Civ. P. 16(f)(1)(B); see Newton v. A.C. & S., Inc., 918 F.2d 1121, 1126 (3d Cir. 8 1990) (“Rule 16 authorizes courts to require parties to attend conferences for the purpose of 9 discussing settlement and impose sanctions if they fail to participate in good faith.”); Pitman v. 10 Brinker Int’l, Inc., 216 F.R.D. 481, 483 (D. Ariz. 2003), amended on reconsideration in part sub 11 nom. Pitman v. Brinker Int’l, No. CV02-1886PHX DGC, 2003 WL 23353478 (D. Ariz. Oct. 3, 12 2003). Courts have not developed clear standards for evaluating good-faith in court-ordered 13 settlement, but “good faith” has been interpreted “narrowly to require compliance with orders to 14 attend mediation, provide pre-mediation memoranda, and, in some cases, produce organizational 15 representatives with sufficient settlement authority.” In re A.T. Reynolds & Sons, Inc., 452 B.R. 16 374, 381 (S.D.N.Y. 2011) (citations omitted). 17 In addition to or instead of sanctions, the court must order a party, its attorney or both to 18 pay reasonable expenses incurred due to non-compliance with Rule 16, unless the 19 noncompliance was substantially justified or other circumstances make the award unjust. Fed. R. 20 Civ. P. 16(f)(2). Rule 16 does not limit the authority of the court in pretrial proceedings but 21 enhances the district court’s inherent power to actively manage their dockets. G. Heileman 22 Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 652 (7th Cir. 1989). Further, the Court has 23 inherent power to issue sanction parties or their attorneys for improper conduct. Chambers v. 24 Nasco, Inc., 501 U.S. 32, 43-46 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 25 (1980); Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001). 26 It appears to the Court that CDCR failed to act in good faith in this matter by leading 27 Plaintiff to believe that a settlement was possible and causing him to incur unnecessary costs and 1 in the settlement conference or make a settlement offer in this action; they had the right to adopt 2 a “no pay” position and to choose to proceed to trial in this matter. In re A.T. Reynolds & Sons, 3 Inc., 452 B.R. at 382 (citing Negron v. Woodhull Hosp., 173 Fed.App’x. 77, 79 (2d Cir. 2006)). 4 “It is well-settled that a court cannot force a party to settle, nor may it invoke ‘pressure tactics’ 5 designed to coerce a settlement.” In re A.T. Reynolds & Sons, Inc., 452 B.R. at 382; see also 6 Newton, 918 F.2d at 1126 (“pressure tactics to coerce settlement simply are not permissible”). 7 Here, the issue is that Defendants requested the settlement conference and caused 8 Plaintiff to incur costs, expenses, and inconvenience in preparation for the settlement conference 9 knowing that no settlement offer would be forthcoming and it was unlikely that the matter would 10 settle. It is this conduct that the Court finds to be concerning. See Francis v. Women’s 11 Obstetrics & Gynecology Grp., P.C., 144 F.R.D. 646, 648 (W.D.N.Y. 1992) (finding party acted 12 in bad faith by failing to inform plaintiffs before the settlement conference that the insurance 13 carrier had not yet authorized coverage); Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1335 (5th 14 Cir. 1996) (affirming bad faith finding where defendant concealed its true position that it never 15 intended to settle the case). 16 “The purpose of a settlement conference is to facilitate a settlement or to narrow the 17 disparity between the parties by the candid input of a neutral, disinterested judicial officer.” 18 Pitman, 216 F.R.D. at 485. Where as here, the defendants offer nothing in settlement and are 19 seeking to have the court act as an advocate by convincing Plaintiff that his suit had no merit and 20 convince him to settle for only a waiver of costs, it places the judge in an ethical dilemma. The 21 magistrate judge is not an advocate for the party in the settlement process. For settlement to be 22 possible, “it is imperative that both plaintiff and defendant arrive at a settlement conference with 23 an open mind and a genuine willingness to meaningfully discuss the strengths and weaknesses of 24 each party’s case.” Id. The Court does not advocate for a particular party, but seeks to help the 25 parties come to a resolution agreeable to all parties. While the Court may comment on the 26 strengths or weaknesses of the party’s case, it will not act as an advocate for one side by taking a 27 position on the ultimate merits of the action to convince the other party to accept nothing in 1 Il. 2 ORDER 3 Based upon the foregoing, IT IS HEREBY ORDERED that: 4 1. Within fourteen (14) days of the date of entry of this order, Defendants SHALL 5 SHOW CAUSE IN WRITING why sanctions should not issue requiring payment 6 of Plaintiffs attorney fees incurred in preparing for settlement of this action. 7 2. Counsel for the California Department of Corrections and Rehabilitation may 8 make a special appearance for the purposes of responding to the order to show 9 cause. 10 3. The Clerk of the Court shall serve a copy of this order on Jennifer Neill, Office of 11 Legal Affairs, P.O. Box 942883, Sacramento, California 94283-0001. 12 3 IT IS SO ORDERED. FA. ee 14 | Dated: _ January 21, 2020 Is UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28