To mix my sports metaphors: We have a bit of hardball on the soccer pitch from the plaintiffs here. To briefly recap: The defendants filed a motion to dismiss this lawsuit back on April 20, 2018. Victory by the defendants would (likely) mean the case is dismissed. The plaintiffs filed their response to the motion on on May 2, 2018. All that remained was for the defendants to file their reply (as the moving party, they get the last word). That was originally due May 9th, but PSV/MLS filed for an extension to May 11th. The plaintiffs didn’t initially oppose an extension, but it’s fair to say they do now. Let’s take a brief look at the motion.

So this is obviously somewhat in response to the decision by PSV/MLS to appeal the ruling from the judge which tolled discovery, a decision on the motion to dismiss and ordered the defendants to comply with providing some financial information. Beyond that, the basics behind the refusal from the plaintiffs to agree to this motion are threefold: 1) The motion was filed late (based on a date they chose, no less), 2) There is no reasoning to support the delay and 3) Some (implied) bad faith in the defendants’ behavior.

TIMELINESS:

First up is the argument that defendants are the ones that chose the May 11th date to file their reply. Implicit in that argument is that if defendants needed more time, they should have asked for it on the front end. And extending the deadline from two to NINETY (!) days seems excessive. Further, the defendants’ waited until the last minute to file this motion. From the plaintiffs’ motion:

REASONING TO SUPPORT THIS DELAY:

I’m not seeing much reason from the defendants as to why this extension is needed. In fact, I’m not seeing any reasoning at all. From the Defendant’s motion to extend time:

Yeah, I don’t really see any reasoning here, except for the fact that the court has put a hold on making a decision on the motion to dismiss. I’d also point out that it makes sense for the defendants to file their reply, so that this matter is ready to be heard as soon as possible. It’s possible that the judge (by his own decision or by court order) cuts the tolling period short. If so, then having the briefing completed will allow the arguments to heard in a timely matter, as the defendants seem to want. The plaintiffs point that out:

So the question is: How does delaying the reply in this case help expedite a decision on the motion to dismiss that the defendants purport to want heard as soon as possible? And again, delaying it 90 days seems crazy. If they only needed two additional days to file, that means that the brief was close to done. Are they starting from scratch? Writing a treatise on the dormant commerce clause (please god no)?

And a dash of bad faith:

It’s hard not to notice throughout the motion that the plaintiffs aren’t happy with the behavior of the defendants. In addition to filing this motion after the close of business (that gets a Red on the Pettiness Scale), plaintiffs note they were amenable to working with the defendants.

Now that I think about, it, as this briefing was filed after hours, and the reply hasn’t been filed in accordance with the rules, I’m upgrading this infraction to “Purple.”

This illustrates the tension throughout this case, and aside from the merits, makes me wonder if the judge is reconsidering the ability of these parties to come to any type of settlement. Beyond that it’s very odd to me that PSV/MLS would file this motion after hours on the day their reply was due, and supply no reasoning whatsoever. Why do they need 90 additional days to file this, when they were initially prepared to submit this a mere two days after the deadline?

WHAT WILL HAPPEN:

PSV/MLS will likely file a reply to the plaintiffs opposition, and maybe they’ll provide some additional reasoning. Either way, if the judge denies their motion, then he will be within his rights to assess fees or even strike the pleading, which is what the plaintiffs want.

If the reply is stricken, then the Court will decide the motion based on the initial filing from PSV/MLS and the response from the City/State. Not something that the defendants will want, but that’s the chance you take by playing fast and loose with filing deadlines: You may run into a judge who slams the door in your face.