Nasca v. Life Insurance Company of North America ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH NASCA, Case No.: 3:20-cv-0900-JLS-AHG 12 Plaintiff, ORDER GRANTING MOTION TO CONTINUE EARLY NEUTRAL 13 v. EVALUATION CONFERENCE AND 14 LIFE INSURANCE COMPANY OF CASE MANAGEMENT NORTH AMERICA, CONFERENCE 15 Defendant. 16 [ECF No. 14] 17 This matter comes before the Court on the parties’ Joint Motion to Continue the 18 Early Neutral Evaluation (“ENE”) and Case Management Conference (“CMC”), filed on 19 August 12, 2020. ECF No. 14. 20 Parties seeking to continue an ENE must demonstrate good cause. ECF No. 8 at 4 21 (“An ENE may be rescheduled only upon a showing of good cause”); Chmb.R. at 2 (stating 22 that any request for continuance requires “[a] showing of good cause for the request”); see, 23 e.g., Fed. R. Civ. P 6(b) (“When an act may or must be done within a specified time, the 24 court may, for good cause, extend the time”); Fed. R. Civ. P 16(b)(4) (“A schedule may be 25 modified only for good cause and with the judge’s consent”). 26 “Good cause” is a non-rigorous standard that has been construed broadly across 27 procedural and statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 28 1 (9th Cir. 2010). The good cause standard focuses on the diligence of the party seeking to 2 amend the scheduling order and the reasons for seeking modification. Johnson v. Mammoth 3 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 4 On July 9, 2020, the Court scheduled the ENE and CMC in this matter for 5 September 1, 2020 before Magistrate Judge Allison H. Goddard. ECF No. 12. However, 6 the parties ask that the ENE, CMC, and related dates be continued by 45 days pending 7 receipt of subpoenaed documentation from a third party. ECF No. 14 at 1-2. Specifically, 8 this case involves an ERISA disability benefit recovery claim by Plaintiff, who was 9 formerly employed by third party Piksel Americas, Inc. (“Piksel”). Id. at 2; see also ECF 10 No. 1. Piksel funded its disability benefit through the purchase of a long-term disability 11 policy from Defendant Cigna Life Insurance Company of New York (“Cigna”). ECF No. 12 14 at 2. This action stems from Cigna’s denial of Plaintiff’s written claim for disability 13 based on Cigna’s inability to verify Plaintiff’s eligibility and disability. Id. Despite attempts 14 to do so, neither party to the case has been able to obtain from Piksel the information 15 necessary to confirm Plaintiff’s eligibility for coverage as of the date of his claimed 16 disability. Id. Therefore, the parties agreed during their meet-and-confer session on 17 August 7, 2020 that Plaintiff would serve a subpoena upon Piksel to obtain the eligibility 18 information needed for meaningful settlement discussions. Thus, the parties request a 45- 19 day continuance while awaiting that subpoenaed information. 20 Upon consideration, the Court finds the parties have sufficiently established good 21 cause to GRANT the Joint Motion (ECF No. 14). 22 Accordingly, the ENE and CMC are hereby RESET for October 22, 20201 at 23 2:00 p.m. As before, the ENE will take place via videoconference for all attendees. 24 The Court issues the following Mandatory Procedures to be followed in 25 26 27 1 October 16, 2020 is exactly 45 days from the current date of the ENE. However, that date is not available on the Court’s calendar. The Court has reset the ENE for the first available 28 1 preparation for the ENE: 2 1. Purpose of the Conference: The purpose of the ENE is to permit an informal 3 discussion between the attorneys and the settlement judge of every aspect of the lawsuit in 4 an effort to achieve an early resolution of the case. All conference discussions will be 5 informal, off the record, and confidential. 6 2. Full Settlement Authority Required: A party or party representative with 7 full and complete authority to enter into a binding settlement must be present via 8 videoconference or immediately available to join. Full authority to settle means that a 9 person must be authorized to fully explore settlement options and to agree at that time to 10 any settlement terms acceptable to the parties. Heileman Brewing Co., Inc. v. Joseph Oat 11 Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have “unfettered discretion 12 and authority” to change the settlement position of a party. Pitman v. Brinker Int’l, Inc., 13 216 F.R.D. 481, 485–86 (D. Ariz. 2003). Limited or sum certain authority is not adequate. 14 Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595–97 (8th Cir. 2001). A person who needs 15 to call another person who is not present on the videoconference before agreeing to 16 any settlement does not have full authority. 17 3. Confidential ENE Statements Required: No later than October 19, 2020, 18 the parties shall submit confidential statements of five (5) pages or less directly to the 19 chambers of Magistrate Judge Goddard outlining the nature of the case, the claims, and the 20 defenses. These statements shall not be filed or served on opposing counsel. They shall 21 be lodged via email at efile_goddard@casd.uscourts.gov. The ENE statement is limited to 22 five (5) pages or less, and up to five (5) pages of exhibits or declarations. Each party’s 23 ENE statement must outline: 24 A. the nature of the case and the claims, 25 B. position on liability or defense, 26 27 28 1 C. position regarding settlement of the case with a specific 2 demand/offer for settlement,3 and 3 D. any previous settlement negotiations or mediation efforts. 4 4. Case Management Conference: In the event the case does not settle at the 5 ENE, the Court will immediately thereafter hold a Case Management Conference (“CMC”) 6 pursuant to Fed. R. Civ. P 16(b). Appearance of the parties at the CMC is not required. The 7 Court orders the following to occur before the CMC: 8 A. The parties report they have already met and conferred as required by 9 Fed. R. Civ. P. 26(f). Therefore, the Court will not reset the deadline 10 to do so. However, the parties must file a Joint Case Management 11 Statement by October 13, 2020. The Joint Case Management 12 Statement must address all points in the “Joint Case Management 13 Statement Requirements for Magistrate Judge Allison H. Goddard,” 14 which can be found at: 15 https://www.casd.uscourts.gov/Judges/goddard/docs/Goddard%20Join 16 t%20Case%20Management%20Statement%20Rules.pdf. 17 B. Initial disclosures pursuant to Rule 26(a)(1)(A-D) must occur by 18 October 15, 2020. 19 5. Appearances via Videoconference Required: All named parties, party 20 representatives, including claims adjusters for insured defendants, as well as principal 21 attorney(s) responsible for the litigation must attend the ENE via videoconference. All who 22 attend the ENE must be legally and factually prepared to discuss and resolve the case. 23 24 25 2 A general statement, such as that a party “will negotiate in good faith,” is a not a specific demand or offer. 26 27 3 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 28 1 Counsel appearing without their clients (whether or not counsel has been given settlement 2 authority) will be subject to immediate imposition of sanctions. The Court will use its 3 official Zoom video conferencing account to hold the ENE. The parties are instructed to 4 review the Court’s initial Order setting the ENE and CMC (ECF No. 12) to review the 5 relevant information regarding how to use Zoom. 6 A. No later than October 19, 2020, counsel for each party shall send an 7 e-mail to the Court at efile_goddard@casd.uscourts.gov containing the 8 following: 9 i. The name and title of each participant, including all parties 10 and party representatives with full settlement authority, claims 11 adjusters for insured defendants, and the primary attorney(s) 12 responsible for the litigation; 13 ii. An e-mail address for each participant to receive the Zoom 14 video conference invitation; and 15 iii. A telephone number where each participant may be reached 16 so that if technical difficulties arise, the Court will be in a 17 position to proceed telephonically instead of by video 18 conference. (If counsel prefers to have all participants of their 19 party on a single conference call, counsel may provide a 20 conference number and appropriate call-in information, 21 including an access code, where all counsel and parties or party 22 representatives for that side may be reached as an alternative to 23 providing individual telephone numbers for each participant.) 24 iv. A cell phone number for that party’s preferred point of 25 contact (and the name of the individual whose cell phone it is) 26 for the Court to use during the ENE to alert counsel via text 27 message that the Court will soon return to that party’s Breakout 28 Room, to avoid any unexpected interruptions of confidential 1 discussions. 2 B. The day before the ENE, the Court will email each participant an 3 invitation to join a Zoom video conference. If possible, participants are 4 encouraged to use laptops or desktop computers for the video 5 conference, as mobile devices often offer inferior performance. 6 Participants shall join the video conference by following the ZoomGov 7 Meeting hyperlink in the invitation. Each participant should plan to join 8 the Zoom video conference at least five minutes before the start of the 9 ENE to ensure that the conference begins promptly at 2:00 p.m. 10 C. All participants shall display the same level of professionalism during 11 the ENE and be prepared to devote their full attention to the ENE as if 12 they were attending in person, i.e., cannot be driving while speaking to 13 the Court. Because Zoom may quickly deplete the battery of a 14 participant’s device, each participant should ensure that their device is 15 plugged in or that a charging cable is readily available during the video 16 conference. 17 D. If the case does not settle during the ENE, the Court will hold the CMC 18 immediately following the ENE with counsel only in the main session. 19 6. Requests for Continuances: Local Rule 16.1(c) requires that an ENE take 20 place within forty-five (45) days of the filing of the first answer. Requests to continue ENEs 21 are rarely granted. An ENE may be rescheduled only upon a showing of good cause and 22 adequate notice to the Court. Absent extraordinary circumstances, requests for 23 continuances will not be considered unless submitted in writing no less than seven (7) days 24 before the ENE. All requests for continuances must be made by a joint motion. The request 25 must state: 26 A. The original date; 27 B. The number of previous requests for continuances; 28 C. A showing of good cause for the request; 1 D. | Whether the request is opposed and why; 2 E. Whether the requested continuance will affect other case management 3 dates; and 4 F. A declaration from the counsel seeking the continuance that describes 5 the steps taken to comply with the existing deadlines, and the specific 6 reasons why the deadlines cannot be met. 7 7. New Parties Must be Notified by Plaintiff or Plaintiff’s Counsel: 8 || Plaintiff’s counsel must give notice of the ENE to any Defendants who have been served 9 || but who have not yet filed responsive pleadings as of the date of this Order. 10 8. The failure of any party to follow these mandatory procedures shall result 11 |/in the imposition of sanctions. 12 9. Questions regarding this case or these mandatory guidelines may be directed 13 Judge Goddard’s law clerks at (619) 557-6162. Lodged statements should be emailed to 14 || _goddard @casd.uscourts.gov. 15 IT IS SO ORDERED. 16 17 ||Dated: August 13, 2020 ig _ □□ pbiormH. □□□ Honorable Allison H. Goddard 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28