United States District Court, D. New Mexico
ORDER SETTING SETTLEMENT CONFERENCE
KEVIN
R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE
To
facilitate a final disposition of this case, the Court will
conduct a mandatory settlement conference in accordance with
Federal Rule of Civil Procedure 16(a)(5). IT IS,
THEREFORE, ORDERED that:
All
parties and their lead trial counsel shall appear for a
settlement conference at the United States Courthouse,
Picacho Courtroom, 100 N. Church Street, Las Cruces, New
Mexico, on February 20, 2018 at 9:00
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 presence increases the efficiency and
effectiveness of the process 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).
Experience
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, on or before January 30,
2018, 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 demand.
On
or before February 6, 2018, 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. Defendant shall also
include any proposed form of release or settlement agreement
with Defendant's letter to opposing counsel.
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 rather than expressing general disagreement and
dissatisfaction. 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.
If a
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
conference.
Each of
these letters typically should be five (5) or fewer pages,
and counsel must ensure that each settlement-conference
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 conference.
On
or before February 13, 2018, Plaintiff's counsel
shall provide the Court copies of the letters exchanged
between the parties. In addition, each party must provide the
Court, 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 the Court in the confidential letter
will be kept confidential, and will not be disclosed to any
other party, or to the trial judge. Once the Court
reads the letters provided, it may speak with counsel
ex-parte if the Court needs additional information
to assist in facilitating settlement.
Further,
if any party has video or audio recording(s) of the incident
upon which this action is based, that party must send the
Court a copy of the recording no later than February
13, 2018. The parties shall submit these letters and
other materials to the Court, preferably by email,
(krsproposedtext@nmcourt.fed.us), or alternatively
by facsimile (575) 528-1695, or by mail, as long as the
materials arrive by the above deadline. It is not necessary
to send an original if a document is sent by e-mail or
facsimile.
At the
settlement conference, all of the settlement conference
participants will first meet together to discuss procedures
for the settlement conference. Counsel will not be required
or permitted to give opening statements during the initial
meeting with the Court and the other settlement conference
participants. Upon the conclusion of the initial meeting,
separate, confidential caucuses will be held by the Court
with each party and the party's representative. Counsel
and parties should be prepared to discuss the factual and
legal details of their cases. Attached is an outline for
counsel to review with their clients before the settlement
conference to make the best use of the time allotted.
IN
SUMMARY:
Plaintiffs
letter due to Defendant: January 30, 2018
Defendant's
letter due to ...