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Hines v. Clearwater Paper Corp.

United States District Court, D. Nevada

July 11, 2018

DENNIS HINES, Plaintiff,
v.
CLEARWATER PAPER CORPORATION, Defendant.

          MOTION TO ENFORCE EARLY NEUTRAL EVALUATION SETTLEMENT AGREEMENT [ECF NO. 37]; MOTION TO ALTER JUDGMENT [ECF NO. 41]

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE

         Before 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) is denied.[1]

         BACKGROUND

         I. Mr. Hines and Ms. Carroll's Cases

         Dennis 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).

         Before 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).

         The ENE 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 No. 26).

         In the 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).

         II. The Early Neutral Evaluation Conference

         The ENE 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 process.

         Following 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).

         At the 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.

         As it 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. 2:17-cv-01688.

         A 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 ...


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