Smith v. LensCrafters, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RACHEL SMITH, individually and on Case No.: 14CV366-JAH(BLM) behalf of all others similarly situated 12 SCHEDULING ORDER Plaintiff, 13 REGULATING DISCOVERY v. AND OTHER PRE-TRIAL 14 PROCEEDINGS LUXOTTICA RETAIL NORTH 15 AMERICA, INC. dba LensCrafters, AND 16 EYEXAM OF CALIFORNIA, INC., 17 Defendant. 18 19 On June 19, 2020, the Court held a telephonic Early Neutral Evaluation Conference 20 (“ENE”) in the above-entitled action. ECF No. 58. Settlement of the case could not be 21 reached during the ENE and the Court therefore conducted a Case Management 22 Conference pursuant to Rule 16.1(d) of the Local Rules. Id. After consulting with the 23 attorneys of record for the parties and being advised of the status of the case, and good 24 cause appearing, IT IS HEREBY ORDERED: 25 1. The parties shall file a joint motion for a protective order, which includes the 26 terms of their agreement for handling confidential documents and information, on or before 27 July 3, 2020. 28 2. Any motion to join other parties, to amend the pleadings, or to file additional 1 pleadings shall be filed by August 21, 2020. 2 3. The parties shall designate their respective class certification experts in 3 writing by November 13, 2020. The parties must identify any person who may be used at 4 trial to present evidence pursuant to Rules 702, 703 or 705 of the Fed. R. Evid. This 5 requirement is not limited to retained experts. The date for exchange of rebuttal experts 6 shall be by December 11, 2020. The written designations shall include the name, address 7 and telephone number of the expert and a reasonable summary of the testimony the expert 8 is expected to provide. The list shall also include the normal rates the expert charges for 9 deposition and trial testimony. 10 4. By November 13, 2020, each party shall comply with the disclosure 11 provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This 12 disclosure requirement applies to all persons retained or specially employed to provide 13 expert testimony, or whose duties as an employee of the party regularly involve the giving 14 of expert testimony. Except as provided in the paragraph below, any party that fails 15 to make these disclosures shall not, absent substantial justification, be permitted to 16 use evidence or testimony not disclosed at any hearing or at the time of trial. In 17 addition, the Court may impose sanctions as permitted by Fed. R. Civ. P. 37(c). 18 5. Any party shall supplement its disclosure regarding contradictory or rebuttal 19 evidence under Fed. R. Civ. P. 26(a)(2)(D) by December 11, 2020. 20 6. Any motion for class certification must be filed on or before January 29, 21 2021. 22 7. The parties are ORDERED to contact the chambers of Judge Major within 23 three days of the Court’s ruling on the motion for class certification to set the remaining 24 case deadlines. 25 8. Failure to comply with this section or any other discovery order of the court 26 may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 27 the introduction of experts or other designated matters in evidence. 28 9. A Mandatory Settlement Conference shall be conducted on February 10, 1 2021 at 1:30 p.m. in the chambers of Magistrate Judge Barbara L. Major located at 333 2 West Broadway, Suite 1110, San Diego, CA 92101. All discussions at the Mandatory 3 Settlement Conference will be informal, off the record, privileged, and confidential. 4 Counsel for any non-English speaking party is responsible for arranging for the appearance 5 of an interpreter at the conference. 6 a. Personal Appearance of Parties Required: All parties, adjusters for 7 insured defendants, and other representatives of a party having full and complete authority 8 to enter into a binding settlement, as well as the principal attorneys responsible for the 9 litigation, must be present in person and legally and factually prepared to discuss 10 settlement of the case. Counsel appearing without their clients (whether or not counsel has 11 been given settlement authority) will be cause for immediate imposition of sanctions and 12 may also result in the immediate termination of the conference. 13 Unless there is good cause, persons required to attend the conference pursuant to 14 this Order shall not be excused from personal attendance. Requests for excuse from 15 attendance for good cause shall be made in writing at least three (3) court days prior to the 16 conference. Failure to appear in person at the Mandatory Settlement Conference will be 17 grounds for sanctions. 18 b. Full Settlement Authority Required: In addition to counsel who will 19 try the case, a party or party representative with full settlement authority1 must be present 20 for the conference. In the case of a corporate entity, an authorized representative of the 21 corporation who is not retained outside counsel must be present and must have 22 discretionary authority to commit the company to pay an amount up to the amount of 23 24 1 "Full settlement authority" means that the individuals at the settlement conference must be authorized to 25 explore settlement options fully and to agree at that time to any settlement terms acceptable to the parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have 26 "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). The purpose of requiring a person with unlimited settlement 27 authority to attend the conference contemplates that the person's view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum certain of authority is not adequate. See Nick 28 1 Plaintiff's prayer (excluding punitive damages prayers). The purpose of this requirement 2 is to have representatives present who can settle the case during the course of the 3 conference without consulting a superior. Counsel for a government entity may be excused 4 from this requirement so long as the government attorney who attends the Mandatory 5 Settlement Conference (1) has primary responsibility for handling the case, and (2) may 6 negotiate settlement offers which the attorney is willing to recommend to the government 7 official having ultimate settlement authority. 8 c. Confidential Settlement Statements Required: No later than 9 January 29, 2021, the parties shall submit directly to Magistrate Judge Major's chambers 10 (via hand delivery or email address) confidential settlement statements no more than ten 11 (10) pages in length. These confidential statements shall not be filed or served on 12 opposing counsel. Each party's confidential statement must set forth the party’s statement 13 of the case, identify controlling legal issues, concisely set out issues of liability and 14 damages, and shall set forth the party’s settlement position, including any previous 15 settlement negotiations, mediation sessions, or mediation efforts, the last offer or demand 16 made by that party, and a separate statement of the offer or demand the party is prepared 17 to make at the settlement conference. If a specific demand or offer for settlement cannot 18 be made at the time the brief is submitted, then the reasons therefore must be stated along 19 with a statement as to when the party will be in a position to state a demand or make an 20 offer. 21 General statements that a party will "negotiate in good faith" is not a specific 22 demand or offer contemplated by this Order. It is assumed that all parties will negotiate in 23 good faith. 24 d. Requests to Continue a Mandatory Settlement Conference: Any 25 request to continue the Mandatory Settlement Conference or request for relief from any of 26 the provisions or requirements of this Order must be sought by a written ex parte 27 application. The application must (1) be supported by a declaration of counsel setting 28 forth the reasons and justifications for the relief requested, (2) confirm compliance with 1 |]Civil Local Rule 83.3(h), and (3) report the position of opposing counsel or any 2 || unrepresented parties subject to the Order. Absent good cause, requests for continuances 3 || will not be considered unless submitted in writing no fewer than (7) days prior to the 4 ||scheduled conference. 5 If the case is settled in its entirety before the scheduled date of the conference, 6 ||counsel and any unrepresented parties must still appear in person, unless a written 7 ||joint notice confirming the complete settlement of the case is filed no fewer than 8 || twenty-four (24) hours before the scheduled conference. 9 10. The parties must review the chambers’ rules for the assigned district judge 10 magistrate judge. 11 11. The dates and times set forth herein will not be modified except for good 12 || cause shown. 13 12. Briefs or memoranda in support of or in opposition to any pending motion 14 || shall not exceed twenty-five (25) pages in length without leave of a district court judge. 15 reply memorandum shall exceed ten (10) pages without leave of a district court judge. 16 || Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents 17 || and a table of authorities cited. 18 13. Plaintiff’s counsel shall serve a copy of this order on all parties that enter 19 || this case hereafter. 20 IT IS SO ORDERED. 21 ||Dated: 6/22/2020 23 United States Maaistrate Judae 24 25 26 27 28