United States District Court, D. New Mexico
January 10, 2017
SEAN MCGARRY, Plaintiff,
BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF LINCOLN, Defendants.
AMENDED ORDER SETTING SETTLEMENT CONFERENCE
GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE
facilitate a final disposition of this case, a mandatory
settlement conference will be conducted in accordance with
Federal Rule of Civil Procedure 16(a)(5). Accordingly, IT IS
ORDERED that all parties and their lead trial counsel
shall appear before me at the United States Courthouse,
Dona Ana Courtroom, 100 N. Church Street, Las Cruces, New
Mexico, on June 22, 2017, at 10:30 a.m. An insured
party or an uninsured corporate party shall appear by a
representative with full and final authority to discuss and
enter into a binding settlement (this requirement cannot be
satisfied by hiring a local representative if the appropriate
representative resides in another state). See
D.N.M.LR-Civ. 16.2(c). A party's personal appearance is
intended to increase the efficiency and effectiveness of the
settlement conference by reducing the time for communication
of offers and expanding the ability to explore options for
settlement. A party's request to be excused must be made
in writing five (5) calendar days before the conference.
See D.N.M.LR-Civ. 16.2 (d).
teaches that settlement conferences are often unproductive
unless the parties have exchanged demands and offers before
the conference and made a serious effort to settle the case
on their own. Accordingly, at least twenty-one (21) calendar
days prior to the date of the settlement conference,
plaintiff's counsel shall serve on defense counsel a
letter that sets forth at least the following information:
(a) a brief summary of the evidence and legal principles that
plaintiff asserts will establish liability; (b) a brief
explanation of why damages or other relief appropriately
would be granted at trial; (c) an itemization of any claimed
damages, including any special damages - i.e., damages for
pecuniary losses, such as past medical expenses, lost wages,
or property damages - that states the exact dollar amount
plaintiff is claiming for each category; and (d) a settlement
least fourteen (14) calendar days before the settlement
conference, defense counsel shall serve on plaintiff's
counsel 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
settlement offer. If a release or a settlement agreement is
contemplated, defense counsel shall include a proposed form
of release with the counteroffer. If defendant disagrees with
the amount of special damages plaintiff has claimed,
defendant's counteroffer must state the dollar amount
defendant believes to be correct for each category. For
example, 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 to merely say, “defendant
disagrees that plaintiff has $1, 000 in past medical
dispute about special damages exists, counsel shall: (1) meet
in person or telephonically before the settlement conference
to try to resolve the dispute (an exchange of emails or
correspondence is insufficient); and (2) if the dispute
cannot be resolved, counsel must bring all documentation
supporting his or her position on special damages to the
these letters typically should be five (5) or fewer pages,
and counsel must ensure that each participant reads the
opposing party's letter before the settlement conference.
If settlement authority for defendant is provided by a
committee, defendant must ensure that the committee reviews
plaintiff's letter before finalizing settlement
authority. Those attending the settlement conference and
reviewing the letters exchanged must treat as confidential
the information discussed, positions taken, and offers made
by other participants in preparation for and during the
least seven (7) calendar days before the conference,
plaintiff's counsel shall provide me copies of the
letters exchanged between the parties. In addition, each
party must provide me, in confidence, a concise letter
(typically no more than seven (7) pages) containing a brief
summary of the facts; analysis of the applicable law,
including evidentiary issues; strengths of the case;
weaknesses of the case; status of discovery; identification
of any pending motions; an outline or itemization of damages
or relief requested; status of settlement negotiations to
date; and the names of the individuals who will be attending
the conference and in what capacity. This confidential letter
must not be a mere restatement of the letter served on
opposing counsel. All matters communicated to me in the
confidential letter will be kept confidential, and will not
be disclosed to any other party, or to the trial judge. Once
I read the letters provided, I may arrange to have ex
parte pre-settlement telephone conferences with counsel
if I need additional information to assist my efforts to
if any party has in its possession any video or audio
recordings of the incident upon which this action is based,
that party must send me a copy of the recording at least
seven (7) calendar days before the conference.
parties shall submit these letters and other materials to me,
preferably by e-mail,
(email@example.com), or alternatively by
facsimile (575-528-1665), or by mail, as long as the
materials arrive in my chambers by the above deadline. It is
not necessary to send an original if a document is sent by
e-mail or facsimile.
settlement conference, counsel should be prepared to discuss
the factual and legal highlights of their cases. Separate,
confidential caucuses will be held with each party and the
party's representative. Attached is an outline for
counsel to review with their clients before the settlement
conference to make the best use of the time allotted.
days immediately preceding the settlement conference, if
either party believes that negotiation attempts would not be
fruitful at the time set for the conference for any reason
(for example, insufficient discovery or a need to wait on the
resolution of a dispositive motion), the parties should
contact my chambers to schedule a status conference to
discuss the concern.
letter due to defendant: [21 days prior]
letter due to plaintiff: [14 days prior]
letters (and any audio/video recordings) due to Court: [7
IS SO ORDERED.
shows that in negotiations the party who is best prepared
usually obtains the best result. Settlement conferences can
be more efficient and productive if all parties and counsel
are prepared. The following are some areas to consider to aid
in the effectiveness of this settlement conference.
Parties with ultimate settlement authority must be
Court will use a mediation format and private caucusing with
each side. The judge may address your client directly.
issues (in and outside of this lawsuit) need to be resolved?
What are the strengths and weaknesses of each issue? What is
your most persuasive argument?
remedies are available resulting from this litigation or
there any ancillary litigation pending/planned which affects
you have enough information to value the case? If not, how
are you going to get more information before the conference?
attorney's fees or other expenses affect settlement? Have
you communicated this to the other side?
there outstanding liens? Have you verified amounts and
whether they are negotiable? Do you need to include a
representative of the lien holder? If so, contact the Court
there valid insurance coverage? In what amount? If coverage
is at issue, or the amount/type affects settlement value,
have you notified the other side? Do you need to include the
representative from more than one company/carrier? If so,
notify the Court immediately.
Where have your last discussions ended?
you have any discussions before the settlement conference to
make it proceed more efficiently?
value do you want to start with? Why? Have you discussed this
with your client?
value do you want to end with? Why? Have you discussed this
with your client? Is it significantly different from values
you have placed on this case at other times?
there confidential information which affects case value? Why
shouldn't it be disclosed? How can the other side be
persuaded to change value if that party doesn't have this
happens if you don't settle the case at the conference?
What is your best alternative to a negotiated settlement?
settlement is reached, do you want it on the record?
you discussed settlement formats with your client? Does the
client understand structured settlements, annuities, and Rule
68 offers to compromise?
soon could checks/closing documents be received?
settlement is not reached, and further discovery is needed,
what is your plan for continued settlement discussions? Do
you want Court involvement in these talks?
settlement is not reached, please be prepared to discuss it
again at the Final Pretrial Conference.
 The words “plaintiff” and
“defendant” include the plural form of the words
if the case involves multiple plaintiffs and/or defendants.
The attorney for each plaintiff and defendant must comply
with the terms of this order. If an attorney represents more
than one plaintiff or defendant, the attorney must comply
with the terms of this order with respect to each of his/her
 The settlement offer must be definite,
meaning that it must state a single amount with no variables.
For example, a settlement offer that lists a set amount of
money “and attorneys' fees” is
 If there are disputes about the
language of the release or the settlement agreement, the
parties are ordered to alert the Court to the disputes in
their confidential letters to the Court that are described
 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.
 Should a party require language
translation or interpreting services, such services must be
provided by the party and/or counsel at their expense. Such
services are not provided by the Court in civil
 A $100 fine for each day a party
misses any of the above deadlines may be assessed unless a
request for an extension is approved by the Court.