Case 3:12-cv-02738-CAB-MDD Document 45 Filed 12/06/12 PageID.797 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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`WARSAW ORTHOPEDIC, INC., et al.,
`Plaintiffs,
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`vs.
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`NUVASIVE, INC., et al.,
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`Defendants.
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`CASE NO. 12cv2738-CAB (MDD)
`ORDER: 1) DENYING
`PLAINTIFFS’ REQUEST FOR
`CASE MANAGEMENT
`CONFERENCE; 2)
`SCHEDULING EARLY
`NEUTRAL EVALUATION
`CONFERENCE FOR
`COMPLIANCE WITH PATENT
`L.R. 2.1
`[ECF NO. 42]
`
`On November 30, 2012, Plaintiffs filed a request for a case management
`conference. (ECF No. 42). Defendants filed a response on December 3, 2012. (ECF
`No. 44). The Court has reviewed the case history and based upon the status of the
`case, the Court declines to schedule an early case management conference and issues
`the following order setting an Early Neutral Evaluation Conference:
`I. On January 28, 2013, at 9:30 a.m. an Early Neutral Evaluation of your
`case will be held in the chambers of the Honorable Mitchell D. Dembin, United States
`Magistrate Judge, 333 West Broadway, Suite 1180, San Diego, California, 92101.
`Absent extraordinary circumstances, requests for continuances will not be
`considered unless submitted in writing no less than fourteen (14) days prior
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`Case 3:12-cv-02738-CAB-MDD Document 45 Filed 12/06/12 PageID.798 Page 2 of 4
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`to the scheduled conference.
`Pursuant to Civil Local Rule 16.1.c and Patent Local Rule 2.1.a of the Local
`Rules of the United States District Court for the Southern District of California, all
`counsel and each party, in addition to any other person(s) who has full
`authority to explore settlement options and to agree at that time to any
`settlement terms acceptable to the parties must appear in person at the
`conference. Governmental entities may appear through litigation counsel
`only. As to all other parties, appearance by litigation counsel only is not
`acceptable. The parties must be prepared to present demands and offers of
`settlement.
`II. Plaintiff's counsel must give notice of the Early Neutral Evaluation
`conference to all defendants making an appearance after the date of this notice.
`All conference discussions will be informal, off the record, privileged
`and confidential.
`In preparation for the Early Neutral Evaluation Conference, the parties must each
`submit a confidential settlement brief to chambers on or before January 22, 2013.
` The settlement briefs must include must include the following:
`1.
`For the Plaintiff a brief description of the case and the claims asserted;
`a specific and current demand for settlement addressing all relief or
`remedies sought. If a specific demand for settlement cannot be made at
`the time the brief is submitted, then the reasons therefor must be stated
`along with a statement as to when the plaintiff(s) will be in a position to
`state a demand; and a brief description of any previous settlement
`negotiations, mediation sessions or mediation efforts.
` For the Defendant a brief description of the defendant(s) position
`concerning plaintiff(s) allegations, any defenses and any counter-claims
`or set-offs asserted;
`a specific and current response to plaintiff(s) demand and the
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`Case 3:12-cv-02738-CAB-MDD Document 45 Filed 12/06/12 PageID.799 Page 3 of 4
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`defendant(s) specific offer of settlement; and a brief description of any
`previous settlement negotiations, mediation sessions or mediation
`efforts.
`General statements that a party will "negotiate in good faith" is not a specific
`demand or offer contemplated by this Order. It is assumed that all parties will
`negotiate in good faith.
`The briefs are limited to ten (10) pages and must not include exhibits,
`attachments, or incorporate by reference the pleadings on file or other material.
`III. Any request to continue the conference or request for relief from any of
`the provisions or requirements of this Order must be sought by a written ex parte
`application. The application must be supported by a declaration of counsel setting
`forth the reasons and justifications for the relief requested; confirm compliance with
`Civil Local Rule 26.1; and, report the position of opposing counsel or any
`unrepresented parties subject to the Order.
`If the case is settled in its entirety before the scheduled date of the conference,
`counsel and any unrepresented parties must still appear in person, unless a joint
`motion to vacate a conference date due to the complete settlement of the case is
`submitted no less than 48 hours before the scheduled conference.
`In the event the case does not settle at the ENE, the parties must be
`IV.
`prepared to discuss Rule 26 compliance dates and deadlines and a Claim
`Construction briefing schedule and hearing date. Parties shall therefore meet
`and confer pursuant to Fed. R. Civ. P. 26(f) no later than January 15, 2013,
`and be prepared to discuss the following matters at the conclusion of the ENE
`conference:
`1.
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`Any anticipated objections under Federal Rule of Civil Procedure
`26(a)(1)(E) to the initial disclosure provisions of Federal Rule of Civil
`Procedure 26(a)(1)(A-D) and the date of initial disclosures;
`Any proposed modification of the deadlines provided for in the Patent
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`Case 3:12-cv-02738-CAB-MDD Document 45 Filed 12/06/12 PageID.800 Page 4 of 4
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`4.
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`5.
`6.
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`3.
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`Local Rules, and the effect of any such modification on the date and time
`of the Claim Construction Hearing, if any;
`Whether the court will hear live testimony at the Claim Construction
`Hearing;
`The need for and specific limitations on discovery relating to claim
`construction, including depositions of percipient and expert witnesses;
`The order of presentation at the Claim Construction Hearing; and
`Any proposed modifications to the limitations on discovery imposed
`under the Federal Rules of Civil Procedure or by local rule.
`The Court will issue an order following the ENE addressing these issues and setting
`dates as appropriate.
`Questions regarding this case may be directed to the Judge's chambers at (619)
`446-3972.
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` IT IS SO ORDERED.
`DATED: December 6, 2012
`
`
` Hon. Mitchell D. Dembin
` U.S. Magistrate Judge
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