Free Order - District Court of California - California

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an IT IS HEREBY ORDERED that an Early Neutral Evaluation (ENE) of your case will be held on March 17, 2008 at 9:30 a.m. in the chambers of the Honorable Barbara L. Major, United States Magistrate Judge, 940 Front Street, Suit 5140, San Diego, California 92101. The following are mandatory guidelines for the parties preparing for the Early Neutral Evaluation Conference. 1. Purpose of Conference: discussion between The purpose of the ENE is to permit the attorneys, parties, and the ANTICANCER, INC., a California Corporation, ) ) ) Plaintiff, ) ) v. ) ) TECO DIAGNOSTICS, a California ) corporation; KC CHEN, a natural ) person; TONG CHIAH, a natural ) person; JIAN YANG VAECHES, a ) natural person; and DOES 1-30, ) ) Defendants. ) ) ) Case No. 07cv2294-L (BLM) NOTICE AND ORDER FOR EARLY NEUTRAL EVALUATION CONFERENCE IN PATENT CASE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

informal

settlement judge of every aspect of the lawsuit in an effort to achieve

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an early resolution of the case.

All conference discussions will be

informal, off the record, privileged, and confidential. Counsel for any non-English speaking party is responsible for arranging for the

appearance of an interpreter at the conference. 2. Personal Appearance of Parties Required: All parties,

adjusters for insured defendants, and other representatives of a party having full and complete authority to enter into a binding settlement, and the principal attorneys responsible for the litigation, must be present in person and legally and factually prepared to discuss

settlement of the case.

Counsel appearing without their clients

(whether or not counsel has been given settlement authority) will be cause for immediate imposition of sanctions and may also result in the immediate termination of the conference. Unless there are extraordinary circumstances, persons required to attend the conference pursuant to this Order shall not be excused from personal attendance. Requests for excuse from attendance for

extraordinary circumstances shall be made in writing at least three (3) court days prior to the conference. Failure to appear at the ENE

conference will be grounds for sanctions. 3. Full Settlement Authority Required: In addition to counsel

who will try the case, a party or party representative with full settlement authority1 must be present for the conference. In the case

1

"Full settlement authority" means that the individuals at the settlement

conference must be authorized to 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 "unfettered Pitman v.

discretion and authority" to change the settlement position of a party. Brinker Int'l, Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003).

The purpose of requiring

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of a corporate entity, an authorized representative of the corporation who is not retained outside counsel must be present and must have discretionary authority to commit the company to pay an amount up to the amount of the Plaintiff's prayer (excluding punitive damages prayers). The purpose of this requirement is to have representatives present who can settle the case during the course of the conference without consulting a superior. Counsel for a government entity may be excused

from this requirement so long as the government attorney who attends the ENE conference (1) has primary responsibility for handling the case, and (2) may negotiate settlement offers which the attorney is willing to recommend authority. 4. Confidential ENE Statements Required: No later than five (5) to the government official having ultimate settlement

court days prior to the ENE, the parties shall submit confidential statements no more than ten (10) pages2 in length directly to the chambers of the Honorable Barbara L. Major. be filed or served on opposing counsel. statement must include the following: a. counterclaims A brief description of the case, the claims and/or asserted, and the applicable defenses or position These statements shall not Each party's confidential

regarding the asserted claims; b. A specific and current demand or offer for settlement

addressing all relief or remedies sought. If a specific demand or offer

a person with unlimited settlement authority to attend the conference contemplates that the person's view of the case may be altered during the face to face conference. at 486. A limited or a sum certain of authority is not adequate. Id.

See Nick v. Morgan's

Foods, Inc., 270 F.3d 590, 595-97 (8th Cir. 2001).
2

The parties shall not append attachments or exhibits to the ENE statement.

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for settlement cannot be made at the time the brief is submitted, then the reasons therefore must be stated along with a statement as to when the party will be in a position to state a demand or make an offer; and c. A brief description of any previous settlement

negotiations, mediation sessions, or mediation efforts. General statements that a party will "negotiate in good faith" is not a specific demand or offer contemplated by this Order. assumed that all parties will negotiate in good faith. In addition, parties are encouraged to include in the statement or bring to the ENE appropriate demonstrative aids to assist the court in understanding the invention(s) at issue in the litigation. 5. New Parties Must be Notified by Plaintiff's Counsel: It is

Plaintiff's counsel shall give notice of the ENE to parties responding to the complaint after the date of this notice. 6. Case Management Under the Amended Federal Rules and the Local In the event the case does not settle at the ENE, the an Initial Case Management Conference. In

Patent Rules: Court will

conduct

preparation for this conference, the parties must a. Meet and confer pursuant to Fed. R. Civ. P. 26(f) no

later than twenty-one (21) days before the ENE. b. File a joint Case Management Statement with Magistrate The statement

Judge Barbara L. Major seven (7) days before the ENE.

must address all of the topics set forth in Rule 26 as well as the following: i. Any proposed modification of the deadlines provided

for in the Patent Local Rules, and the effect of any such modification on the date and time of the Claim Construction Hearing, if any; ///

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ii.

Whether the court will hear live testimony at the

Claim Construction Hearing; iii. The need for and specific limitations on discovery relating to claim construction, including depositions of percipient and expert witnesses; iv. The order of presentation at the Claim Construction

v.

Any proposed modifications to the limitations on

discovery imposed under the Federal Rules of Civil Procedure or by local rule; and vi. Any issues or agreements relating to electronically

stored information or protective orders. c. Exchange initial disclosures pursuant to Rule 26(a)(1)(A-

D) no later than seven (7) days prior to the ENE. 7. Requests to Continue an ENE Conference: Local Patent Rule

2.1.a requires that an ENE take place within sixty (60) days of the filing of the first answer. granted. Requests to continue ENEs are rarely

However, the Court will consider formal, written ex parte

requests to continue an ENE conference when extraordinary circumstances exist that make a continuance appropriate. In and of itself, having to

travel a long distance to appear in person is not "extraordinary." Absent extraordinary circumstances, requests for continuances will not be considered unless submitted in writing no less than seven (7) days prior to the scheduled conference. DATED: February 4, 2008

BARBARA L. MAJOR United States Magistrate Judge

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COPY TO: HONORABLE M. JAMES LORENZ U.S. DISTRICT JUDGE ALL COUNSEL

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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 hereby notified that a U.S. Magistrate Judge of this district may, upon the consent of all parties, on Form 1A available in the Clerk's Office, conduct any or all proceedings, including a jury or non-jury trial, and order the entry of a final judgment. Counsel for the plaintiff shall

be responsible for obtaining the consent of all parties, should they desire to consent. You should 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. Judgements 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.

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