United States District Court, D. New Mexico
December 14, 2016
WILMA JEANETTE FARMER, Plaintiff,
FRATERNAL ORDER OF EAGLES GRAND AERIE, FRATERNAL ORDER OF EAGLES CLOVIS AERIE #3245, MICHAEL ZICARO, SONYA OSBORN, DOES 1-10, and DOES 11-20, Defendants.
ORDER SETTING SETTLEMENT CONFERENCE
STEPHAN M. VIDMAR United States Magistrate Judge
MATTER is before the Court pursuant to a telephonic status
conference held on December 13, 2016. To facilitate a final
disposition of this case, a mandatory Settlement Conference
will be conducted in accordance with Rule 16(a)(5) of the
Federal Rules of Civil Procedure. The conference will be held
on January, 18, 2017, at 9:00 a.m. in the Organ Courtroom,
United States Courthouse at 100 North Church Street in Las
Cruces, New Mexico.
parties or a designated representative, other than counsel of
record, with full authority to resolve the case, must attend
in person. Counsel who will try the case must also attend in
person. Counsel are encouraged to read “Keys to a
Successful Mediation” by Judge James A. Hall prior to
the settlement conference. Those attending the settlement
conference must treat as confidential the information
discussed, positions taken, and offers made by other
participants in preparation for and during the
conference. See generally Hand v. Walnut Valley
Sailing Club, No. 11-3228, 2012 WL 1111137 (10th Cir.
Apr. 2, 2012) (unpublished) (affirming dismissal of case as
sanction for violating confidentiality of settlement
conference). Counsel shall advise their clients regarding
appropriate attire for appearance in federal court.
later than 5:00 p.m. on December 22, 2016,
Plaintiff shall serve on Defendant a letter setting
forth at least the following information: (a) a brief summary
of the evidence and legal principles that Plaintiff assert
will allow it to establish liability; (b) a brief explanation
of why damages or other relief would be warranted; (c) an
itemization of the principles supporting those damages; and
(d) a settlement demand.
later than 5:00 p.m. on January 4, 2017, Defendant shall
serve on Plaintiff a letter that sets forth at least the
following information: (a) any points in Plaintiff's
letter with which the defense agrees; (b) any points in
Plaintiff's letter with which the defense disagrees, with
references to supporting evidence and legal principles; and
(c) a counteroffer. If a release is contemplated, defense
counsel shall include a proposed form of release with the
these letters typically should be five pages or fewer, and
counsel must ensure that each party reads the opposing
party's letter before the Settlement Conference. If the
case does not settle, Plaintiff shall provide copies of these
letters to the Court no later than 5:00 p.m. on January 12,
2017. Otherwise, the letters will be kept confidential.
been the Court's experience that disagreement over
special damages-e.g., past medical expenses, lost wages,
property damages-often presents an obstacle to settlement.
Therefore, if Plaintiff is claiming special damages,
Plaintiff's letter must itemize such special damages and
state the exact dollar amount Plaintiff is claiming for each
category. If Defendant disagrees with the amount of special
damages listed in Plaintiff's letter, Defendant's
letter must state the exact dollar amount Defendant believes
to be correct for each category. In other words, if Plaintiff
claims $1, 000 in past medical expenses, and Defendant
believes the correct amount of past medical expenses is $500,
Defendant's letter must clearly state that
Plaintiff's past medical expenses amount to $500. It is
insufficient simply to say, “Defendant disagrees that
Plaintiff has $1, 000 in past medical expenses.” If
there is a dispute over any item of special damages, counsel
will be required to do two things. First, lead trial counsel
for Plaintiff and lead trial counsel for Defendant must meet
(in person or telephonically) prior to the settlement
conference to try to resolve the dispute. Counsel are
specifically instructed to talk to each other; an exchange of
emails or correspondence is insufficient. Second, if the
dispute cannot be resolved, lead trial counsel for Plaintiff
and lead trial counsel for Defendant will each bring with
them to the settlement conference all documentation
supporting their position on special damages and will be
prepared to personally argue their position. This duty cannot
be delegated to an associate, a party representative, or an
insurance representative. The Court will expect each lead
trial counsel to be prepared to present his or her case on
later than 5:00 p.m. on January 12, 2017, each party must
provide the Court, in confidence, a concise position
statement (typically no more than ten pages) containing an
analysis of the strengths and weaknesses of its case and the
names of the individuals who will be attending the conference
and in what capacity. Position statements must be submitted
to the Court by e-mail at
if any party has in its possession any video or audio
recording of the incident upon which this action is based,
that party must submit a copy of the recording to the Court
no later than 5:00 p.m. on January 12, 2017.
Settlement Conference will not be vacated or rescheduled
except upon motion and for good cause shown. Any motion to
vacate or reschedule the Settlement Conference shall provide
the Court with sufficient notice to ensure that other matters
may be scheduled in the time allotted for the Settlement
Court may contact counsel ex parte prior to the Settlement
Conference to discuss the Settlement Conference.
THEREFORE ORDERED as follows:
letter and settlement demand due to Defendant:December 22,
2016, at 5:00 p.m.
letter and counteroffer due to Plaintiff:January 4, 2017, at
provides copies of settlement letters to the Court by:January
12, 2017, at 5:00 p.m.
confidential position statements due to the Court:January 12,
2017, at 5:00 p.m.
Conference:January, 18, 2017, at 9:00 a.m.
 For ease of reference, the Court has
posted the article on its website, and the article may be
 This does not prohibit disclosures
stipulated to by the parties, necessary in proceedings to
determine the existence of a binding settlement agreement, or
as otherwise required by law.
 Herein, the terms
“Plaintiff” and “Defendant” shall
encompass both singular and plural meanings.
 If the parties have engaged in
settlement negotiations, Plaintiff's demand should be
lower than Plaintiff's most recent demand, and
Defendant's counteroffer should be higher than
Defendant's most recent counteroffer.
 Each e-mail message and its
attachments cannot exceed 5 MB. Data exceeding 5 MB should be
submitted in individual e-mail messages, each less than 5