1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRFS INVESTMENTS, INC., a Case No.: 20-CV-239-W-WVG California Corporation, 12

ORDER ON JOINT MOTION FOR

Plaintiff, 13 TELEPHONIC OR VIDEO v. CONFERENCE EARLY NEUTRAL 14

EVALUATION CONFERENCE

AMGUARD INSURANCE COMPANY,

15 a Pennsylvania Corporation, 16 Defendant. 17 18 19 On March 20, 2020, this Court issued an Order setting an Early Neutral Evaluation 20 Conference (“ENE”) and a Case Management Conference (“CMC”) to May 4, 2020 at 2:00 21 p.m. (Doc. No. 6.) On April 28, 2020, the Parties filed a Joint Motion to Continue Early 22 Neutral Evaluation Conference. (Doc. No. 8.) On April 29, 2020, the Court granted the 23 Parties’ Joint Motion and continued the ENE and CMC to May 22, 2020 at 9:00 a.m. On 24 May 8, 2020, the Parties filed a Joint Motion for Leave to Appear Telephonically or Via 25 Video Conference for purposes of the May 22, 2020 ENE and CMC. (Doc. No. 10.) After 26 reviewing and considering the basis for the Parties’ pending request, the Court hereby 27 GRANTS the Joint Motion and converts the ENE and CMC set for May 22, 2020 at 9:00 28 a.m. to a video conference, as elaborated below. 1 Rule 16(b) of the Federal Rules of Civil Procedure requires a movant to establish 2 good cause upon seeking modification of the scheduling order. Fed. R. Civ. P. 16(b). This 3 good cause standard is primarily informed by the movant’s diligence in attempting to fully 4 comply with the deadlines set by the Court. Matrix Motor Co. v. Toyota Jidosha Kabushiki 5 Kaisha, 218 F.R.D. 667, 671 (C.D. Cal. 2003). Failure to make the requisite showing 6 terminates the Court’s inquiry into whether it is appropriate to grant the movant’s requested 7 relief from the operative scheduling order. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 8 1087–88 (9th Cir. 2002). In their Joint Motion, the Parties aver they remain ready, willing, 9 and able to participate in the May 22, 2020 ENE and CMC as ordered by the Court. (Doc. 10 No. 10, 3:1-5.) Thus, there is no question the Parties have demonstrated the diligence 11 necessary to enable this Court to entertain the Parties’ request to modify the manner in 12 which the ENE and CMC are held. 13 To that end, this Court is acutely aware of the ongoing COVID-19 pandemic and the 14 complications it has brought onto litigants, counsel, courts, and seemingly all other 15 participants in the judicial system. Accordingly, Chief Judge Larry Alan Burns issued 16 Chief Judge Order (“CJO”) No. 181 and thus suspended for 30 days the requirement under 17 Civil Local Rule 16.1(a) that all ENEs be conducted in person. (CJO No. 18 ¶ 9.) On April 18 15, 2020, Chief Judge Burns issued CJO No. 24,2 which extended CJO No. 18 until May 19 16, 2020. To date, although CJO No. 24 has not been extended beyond May 16, 2020, the 20 Court appreciates the Parties’ health-related concerns as memorialized in their Joint Motion 21 arising from the requirement to appear in person for the May 22, 2020 ENE and CMC. 22 Accordingly, the Court finds good cause exists to support the Parties’ request for a 23 telephonic or video conference ENE and CMC and hereby ORDERS the Parties, their 24 25 26 1 CJO #18 is available on the Court’s website at: https://www.casd.uscourts.gov 27 /_assets/pdf/rules/Order%20of%20the%20Chief%20Judge%2018.pdf 2 CJO #24 is available on the Court’s website at: https://www.casd.uscourts.gov/_ 28 1 counsel, and any insurance adjusters to appear via Zoom-based video conference for the 2 ENE and CMC on Friday, May 22, 2020 at 9:00 a.m. To facilitate this modification, IT IS 3 HEREBY ORDERED: 4 1. The Court will use its official Zoom video conferencing account to hold the 5 ENE. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on computers 6 through a download on the Zoom website (https://zoom.us/meetings) or on mobile devices 7 through the installation of a free app.3 Joining a Zoom conference does not require creating 8 a Zoom account, but it does require downloading the .exe file (if using a computer) or the 9 app (if using a mobile device). Participants are encouraged to create an account, install 10 Zoom and familiarize themselves with Zoom in advance of the ENE.4 There is a cost-free 11 option for creating a Zoom account. 12 2. Prior to the start of the ENE, the Court will e-mail each ENE participant an 13 invitation to join a Zoom video conference. Again, if possible, participants are encouraged 14 to use laptops or desktop computers for the video conference, as mobile devices often offer 15 inferior performance. Participants shall join the video conference by following the 16 ZoomGov Meeting hyperlink in the invitation. Participants who do not have Zoom 17 already installed on their device when they click on the ZoomGov Meeting hyperlink 18 will be prompted to download and install Zoom before proceeding. Zoom may then 19 prompt participants to enter the password included in the invitation. All participants will 20 be placed in a waiting room until the ENE begins. 21 3. Each participant should plan to join the Zoom video conference at least five 22 minutes before the start of the ENE to ensure that the ENE begins promptly at 9:00 a.m.. 23 The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin 24 25 26 3 If possible, participants are encouraged to use laptops or desktop computers for the 27 video conference, as mobile devices often offer inferior performance. 4 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- 28 1 at the Court-scheduled time. 2 4. Zoom’s functionalities will allow the Court to conduct the ENE as it ordinarily 3 would conduct an in-person ENE. That is, the Court will begin the ENE with all 4 participants joined together in a main session. After an initial discussion in the main 5 session, the Court will divide participants into separate, confidential sessions, which Zoom 6 calls Breakout Rooms.5 In a Breakout Room, the Court will be able to communicate with 7 participants from a single party in confidence. Breakout Rooms will also allow parties and 8 counsel to communicate confidentially without the Court. 9 5. No later than Friday, May 15, 2020, counsel for each party shall send an e- 10 mail to the Court at efile_gallo@casd.uscourts.gov containing the following: 11 a. The name and title of each participant, including all parties and party 12 representatives with full settlement authority, claims adjusters for insured 13 defendants, and the primary attorney(s) responsible for the litigation; 14 b. An e-mail address for each participant to receive the Zoom video 15 conference invitation; and 16 c. A telephone number where each participant may be reached so that 17 if technical difficulties arise, the Court will be in a position to proceed telephonically 18 instead of by video conference. (If counsel prefers to have all participants of their 19 party on a single conference call, counsel may provide a conference number and 20 appropriate call-in information, including an access code, where all counsel and 21 parties or party representatives for that side may be reached as an alternative to 22 providing individual telephone numbers for each participant.) 23 6. All participants shall display the same level of professionalism during the 24 ENE and be prepared to devote their full attention to the ENE as if they were attending in 25 person. Because Zoom may quickly deplete the battery of a participant’s device, each 26

27 5 For more information on what to expect when participating in a Zoom Breakout 28 1 || participant should ensure that their device is plugged in or that a charging cable is readily 2 || available during the video conference. 3 7. If the case does not settle during the ENE, the Court will hold the CMC 4 ||immediately following the ENE with counsel only. 5 8. All dates, deadlines, procedures, and requirements set forth in the Court’s 6 || Order Setting ENE and CMC (Doc. No. 6) remain in place, except as explicitly modified 7 || by this Order. 8 IT ISSO ORDERED. 9 || Dated: May 11, 2020 Se 10 WN Esa | Hon. William V. Gallo United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28