United States District Court, S.D. Indiana, Indianapolis Division
ENTRY
Hon.
Jane Magnus-Stinson, Chief Judge
The
Chief Executive Officer (“CEO”) of
Nationwide Mutual Insurance Company of America
(“Nationwide”) does not want to attend a
settlement conference scheduled in this defamation matter on
June 27, 2019. On April 8, 2019, Nationwide filed a Motion to
Excuse its Chief Executive Officer from the Second Settlement
Conference (“Motion to Excuse”),
[Filing No. 76], which the Magistrate Judge denied
on May 15, 2019, [Filing No. 78]. On May 28, 2019,
Nationwide objected to the Magistrate Judge's Order in
its Appeal of the Magistrate Judge's Order Denying
Nationwide's Motion to Excuse Its Chief Executive Officer
from the Second Settlement Conference
(“Objection”), [Filing No. 81].
For the reasons set forth below, the Court
OVERRULES Nationwide's Objection, [81].
I.
Legal
Standard
Review
of a magistrate judge's decision on a nondispositive
motion is deferential, and the Court may sustain an objection
to such an order only where it is “clearly erroneous or
is contrary to law.” Fed.R.Civ.P. 72(a); 28 U.S.C.
§ 636(b)(1)(A). An order is clearly erroneous
“only if the district court is left with the definite
and firm conviction that a mistake has been made.”
Weeks v. Samsung Heavy Indus. Co., Ltd.,
126 F.3d 926, 943 (7th Cir. 1997). “An order is
contrary to law when it fails to apply or misapplies relevant
statutes, case law, or rules of procedure.” Pain
Center of SE Ind., LLC v. Origin Healthcare Solutions,
LLC, 2014 WL 6674757, *2 (S.D. Ind. 2014) (citations and
quotation marks omitted).
II.
Background
On
December 1, 2017, ARAC Roof It Forward
(“ARAC”) filed this lawsuit against
Nationwide asserting claims related to allegedly defamatory
statements Nationwide made about ARAC to Nationwide's
insureds during the investigation of two separate insurance
claims. [See Filing No. 1; Filing No. 9.]
On February 9, 2018, the Magistrate Judge scheduled a
settlement conference in this matter, directing that each
party be represented by a client representative “with
complete authority to negotiate and communicate a
settlement” and that, “unless excused by written
order of the court, . . . an officer . . . of every corporate
entity that is a party[] shall attend the settlement
conference.” [Filing No. 26 at 1-2.] On August
15, 2018, Nationwide sought leave from the officer attendance
requirement, [Filing No. 44], which was granted to
the extent that the CEO or Chief Financial Officer
(“CFO”) “must be available by
telephone . . . in the event their participation in the
conference is deemed necessary by the Magistrate
Judge.” [Filing No. 45 at 2].
The
first, pre-summary judgment settlement conference was held
before the Magistrate Judge on September 21, 2018.
[Filing No. 47.] After the settlement conference
proved unsuccessful, the Magistrate Judge scheduled a second
settlement conference for June 27, 2019, directing that
“unless excused by written order of the court, the
chief executive officer of each of the parties shall appear
in person for the settlement conference.” [Filing
No. 47 at 1-2.] The Magistrate Judge also ordered that,
prior to October 5, 2018, the parties must confirm that the
required representatives would be attending the second
settlement conference. [Filing No. 47 at
4.] Nationwide failed to confirm that its CEO would
be attending the second settlement conference. [Filing
No. 48 at 1.]
On
February 2, 2019, the Magistrate Judge issued a minute entry
reminding the parties that a second, post-summary judgment
settlement conference is scheduled for June 27, 2019.
[Filing No. 71 at 1.] The Magistrate Judge
stated that:
[t]he parties' CEOs were ordered to attend the second
settlement conference primarily because [Nationwide] refused
to make any offer during the first settlement conference,
despite [Nationwide's] counsel's acknowledgement that
a complete disposition of this matter on summary judgment was
unlikely. It was the belief of the undersigned Magistrate
Judge, based upon [Nationwide's] behavior during the
settlement conference, that [Nationwide's] representative
had predetermined [Nationwide's] settlement position and
was unwilling to even consider the risks inherent in a jury
trial. Therefore, it is the belief of the undersigned
Magistrate Judge that a second settlement conference would be
futile without the presence of a high level member of
[Nationwide's] management, which is why the court ordered
both parties' CEOs to attend. It is not the Court's
intent to force either party to settle, only to bring
together representatives of the parties with an open mind who
are willing to consider the risks of this matter proceeding
to trial.
[Filing No. 71 at 1.]
On
April 8, 2019, Nationwide moved for relief from the
requirement that its CEO appear at the second settlement
conference. [Filing No. 76.] Nationwide requested
that its Managing Counsel, Tony Damelio-who was the
representative at the first settlement conference-attend the
second settlement conference in place of the CEO. [Filing
No. 76 at 4.] Nationwide argued that although Mr.
Damelio did not make any settlement offers at the first
settlement conference, Nationwide later authorized a
settlement offer of $5, 000 in December 2018. [Filing No.
76 at 3-4.] Nationwide argued that Mr. Damelio has the
authority to settle the matter, is the person from Nationwide
who is most informed of the facts, strengths, and weaknesses
of the case, and has the open mind and ability to evaluate
the risks of proceeding to trial. [Filing No. 76 at
4.] Nationwide also argued that its CEO should not have
to attend because this case is not factually or legally
complex and the damages involved are only
“presumed” damages that do not amount to millions
of dollars. [Filing No. 76 at 4.]
On May
14, 2019, the Magistrate Judge denied Nationwide's motion
to excuse the CEO. [Filing No. 78.] The Magistrate
Judge noted that “[t]he Court scheduled the second
settlement conference so far in advance to provide the chief
executive officers of the parties sufficient lead time to
ensure their availability for the second settlement
conference.” [Filing No. 78 at 1, n. 2.] The
Magistrate Judge also noted that the second settlement
conference was scheduled immediately following the first
settlement conference, when Mr. Damelio's
“statements and actions were fresh in the Magistrate
Judge's mind, and not based upon a possibly faded
recollection months later.” [Filing No. 78 at
3.] The Magistrate Judge addressed Nationwide's
apparent argument that the damages were not sufficient to
justify the presence of the CEO, and noted that ARAC's
latest demand was nearly one million dollars. [Filing No.
78 at 3.] Finally, the Magistrate Judge noted that ...