United States District Court, D. Nevada
MOTION TO ENFORCE EARLY NEUTRAL EVALUATION SETTLEMENT
AGREEMENT [ECF NO. 37]; MOTION TO ALTER JUDGMENT [ECF NO.
FERENBACH UNITED STATES MAGISTRATE JUDGE
the Court are two related motions in separate cases: (1)
Defendant Clearwater Paper Corporation's Motion to
Enforce Early Neutral Evaluation Settlement Agreement, ECF
No. 37 in 2:17-cv-01688-APG-VCF, and (2) Defendant Industrial
Supply Co.'s Motion to Enforce Early Neutral Evaluation
Settlement Agreement, ECF No. 13 in 2:18-cv-00204-RFB-VCF.
For the reasons discussed below, Clearwater Paper
Corporation's motion to enforce is granted and Mr.
Hines' motion to alter judgment in this case (ECF No. 41)
Mr. Hines and Ms. Carroll's Cases
Hines commended his action (2:17-cv-01688) by filing a
complaint (ECF No. 1) on June 16, 2017. The “Nature of
Suite” code “440 Civil Rights: Other” was
applied to the Docket. As a result, although the substance of
the suit required assignment of this case to a second
Magistrate Judge for an Early Neutral Evaluation Conference
(“ENE Conference”), no such assignment was made
until Clearwater Paper Corporation filed a motion requesting
same. (ECF Nos. 20 and 22).
a second Magistrate Judge was assigned for ENE purposes, Mr.
Hines had filed an amended complaint. (ECF No. 4). Clearwater
Paper Corporation filed a motion to dismiss, which was fully
briefed by October 18, 2017. (ECF Nos. 7, 10, and 11). A
discovery plan and scheduling order was entered and extended,
with the extended discovery cutoff date set for July 2, 2018.
(ECF Nos. 18, 28, and 30).
Conference was scheduled for March 14, 2018. (ECF No. 24).
Due to a scheduling conflict, Clearwater Paper Corporation
requested a continuance of the conference. (ECF No. 25).
After consulting with both sides during a telephonic hearing
held in chambers, the ENE Magistrate Judge, Magistrate Judge
Ferenbach, continued the conference until April 5, 2018. (ECF
meantime, Mr. Hines' wife, Connie Carroll, commenced an
action in this court against Clearwater Paper Corporation,
Industrial Supply Co., and an employee of Industrial Supply
Co. (2:18-cv-00204). No. returns of service have been filed
for Industrial Supply Co. or its employee, Stephanie Kemple.
A return of service was filed, reporting that Clearwater
Paper Corporation was served on March 26, 2018. (ECF No. 5).
The Early Neutral Evaluation Conference
Conference in Mr. Hines' case commenced on April 5, 2018
before Magistrate Judge Ferenbach, the undersigned Magistrate
Judge. (2:17-cv-01688; ECF No. 32). Mr. Hines was accompanied
by his wife, Ms. Carroll. Clearwater Paper Corporation's
corporate representative, Carol Hangen, and counsel of
record, Dana Salmonson, attended on the defense side. My
usual practice at ENE Conferences is to permit family members
to attend, even though they are not parties. In my
experience, it is usually not productive to exclude a family
member that a party wants to include in the settlement
Court rules, the parties submitted their confidential ENE
statements to chambers a week before the conference date. A
few days before April 5, 2018, Mr. Hines also delivered to my
chambers a letter regarding Ms. Carroll's case. This was
problematic, as I was the assigned Magistrate Judge for the
substance of Ms. Carroll's case, and her husband had
provided me with an ex parte communication about that case.
(See 2:17-cv-01688, ECF No. 39 at 2-7).
beginning of the ENE Conference, in a separate meeting with
Mr. Hines and Ms. Carroll, I explained to them that this was
an improper ex parte communication, and I would most likely
have to recuse myself from Ms. Carroll's case going
forward. I brought this situation up early for two reasons:
first, to demonstrate to Mr. Hines and Ms. Carroll the
pitfalls of proceeding in federal court without a lawyer; and
second, to suggest that they might want to consider widening
the scope of this April 5, 2018 settlement discussions to
include Ms. Carroll's case, since I was going to have to
recuse myself from her case, anyway. I was not sure if it
would be possible to have a lawyer from Industrial Supply Co.
join us on short notice, but if it was, such a discussion
might be fruitful.
happened, counsel for Industrial Supply Co., who had been in
contact with Ms. Salmonson, was able to join us toward the
end of the Conference, and the parties were able to reach an
agreement to settle both cases. A copy of the settlement
agreement signed by counsel for both Defendants and by Mr.
Hines and Ms. Carroll, with the settlement amount redacted,
appears at pages 8 and 9 of ECF No. 39 in Case No.
minute order was entered in each case reporting that
settlements were reached and setting deadlines for dismissal.
(2:17-cv-01688, ECF No. 32; 2:18-cv-00204, ECF No. 6). In Mr.
Hines' case, June 5, 2018 was set as a deadline for the
parties to file a stipulation and order for dismissal.
(2:17-cv-01688, ECF No. 32). Ms. Carrol's case was
stayed, Ms. Carroll was required to file a notice of
dismissal with ...