(PC) Marceleno v. California Department of Corrections and Rehabiliation ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIK ABELINO MARCELENO, 1:17-cv-01136-NONE-GSA-PC 12 Plaintiff, ORDER SETTING SETTLEMENT CONFERENCE 13 v. 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 19 20 Erik Abelino Marceleno (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. §1983. On July 10, 2020, the Court 22 directed the parties to file a notice indicating whether they believe a settlement conference would 23 be beneficial. (ECF No. 36.) The parties filed notices that they believe a settlement conference 24 would be beneficial. (ECF Nos. 37, 38.) Therefore, the Court has determined that this case will 25 benefit from a settlement conference and will refer this case to Magistrate Judge Stanley A. 26 Boone to conduct a settlement conference on November 20, 2020 at 10:00 a.m. The settlement 27 conference will be conducted remotely by Zoom video conferencing. The Court will issue any 28 necessary transportation order in due course. 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. This case is set for a settlement conference before Magistrate Judge Stanley A. Boone 3 on November 20, 2020, at 10:00 a.m. The settlement conference will be conducted 4 remotely by Zoom video conferencing. Defense counsel shall arrange for Plaintiff’s 5 participation in the conference. 6 2. A representative with full and unlimited authority to negotiate and enter into a binding 7 settlement on the defendant’s behalf shall attend in person.1 8 3. Those in attendance must be prepared to discuss the claims, defenses and damages. 9 The failure of any counsel, party or authorized person subject to this order to appear 10 in person may result in the imposition of sanctions. In addition, the conference will 11 not proceed and will be reset to another date. 12 4. Each party shall provide a confidential settlement statement no later than November 13 13, 2020 to the following email address: saborders@caed.uscourts.gov. Plaintiff shall 14 mail his confidential settlement statement Attn: Magistrate Judge Stanley A. Boone, 15 USDC CAED, 2500 Tulare Street, Fresno, California 93721 so it arrives no later than 16 November 13, 2020. The envelope shall be marked “Confidential Settlement 17 Statement”. Parties shall also file a “Notice of Submission of Confidential Settlement 18 Statement” (See Local Rule 270(d)). 19 20 21 1 While the exercise of its authority is subject to abuse of discretion review, “the district court has the authority to order parties, including the federal government, to participate in mandatory settlement 22 conferences… .” United States v. United States District Court for the Northern Mariana Islands, 694 F.3d 1051, 1053, 1057, 1059 (9th Cir. 2012)(“the district court has broad authority to compel participation in mandatory 23 settlement conference[s].”). The term “full authority to settle” means that the individuals attending the mediation conference must be authorized to fully explore settlement options and to agree at that time to any 24 settlement terms acceptable to the parties. G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989), cited with approval in Official Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1396 (9th Cir. 1993). The 25 individual with full authority to settle must also have “unfettered discretion and authority” to change the 26 settlement position of the party, if appropriate. Pitman v. Brinker Int’l., Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003), amended on recon. in part, Pitman v. Brinker Int’l., Inc., 2003 WL 23353478 (D. Ariz. 2003). The purpose 27 behind requiring the attendance of a person with full settlement authority is that the parties’ view of the case may be altered during the face to face conference. Pitman, 216 F.R.D. at 486. An authorization to settle for a 28 limited dollar amount or sum certain can be found not to comply with the requirement of full authority to settle. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 596-97 (8th Cir. 2001). 1 Settlement statements should not be filed with the Clerk of the Court nor served on 2 any other party. Settlement statements shall be clearly marked “confidential” with 3 the date and time of the settlement conference indicated prominently thereon. 4 5 The confidential settlement statement shall be no longer than five pages in length, 6 typed or neatly printed, and include the following: 7 8 a. A brief statement of the facts of the case. 9 b. A brief statement of the claims and defenses, i.e., statutory or other grounds upon 10 which the claims are founded; a forthright evaluation of the parties’ likelihood of 11 prevailing on the claims and defenses; and a description of the major issues in 12 dispute. 13 c. An estimate of the cost and time to be expended for further discovery, pretrial, 14 and trial. 15 d. The party’s position on settlement, including present demands and offers and a 16 history of past settlement discussions, offers, and demands. 17 e. A brief statement of each party’s expectations and goals for the settlement 18 conference, including how much a party is willing to accept and/or willing to pay. 19 f. If the parties intend to discuss the joint settlement of any other actions or claims 20 not in this suit, give a brief description of each action or claim as set forth above, 21 including case number(s) if applicable. 22 5. The Clerk of the Court is directed to serve a copy of this order on the Litigation Office 23 at North Kern State Prison, via facsimile at (661) 721-6205 or via email. 24 IT IS SO ORDERED. 25 26 Dated: August 21, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28