SaveTheCrew: Update on PSV/MLS Motion to Dismiss

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Update: A status conference hearing has been scheduled for July 10th.

Since we’ve been dealing with the PSV/MLS appeal of the Order from Judge Brown, as well as the goings on in Austin, there haven’t been many filings in the underlying Modell suit. This was partially a function of the Order delaying a ruling on various issues, including the Motion to Dismiss filed by PSV/MLS. In that May 8th order, the judge held off on ruling on the motion for 90 days, while the parties are required to explore a possible settlement and determine a valuation of the Crew.

At the same time, PSV/MLS filed a motion to extend the time for the reply brief on the Motion to Dismiss (as the moving party, they get the last word) until the 90-day toll expired. This was after requesting two other short extensions. The plaintiffs initially agreed to the extensions, but balked at agreeing to give PSV/MLS up to 90 days to file the reply, and filed a brief objecting to the extension.

In the meantime, we went through the appeals process, but we’re still missing PSV/MLS’ reply brief, which is well past the May 11th deadline. Well, we’ve gotten a reply from PSV/MLS…on their motion to extend the deadline of the reply (yes, you read that right).

I mentioned in that story there didn’t seem to be much justification for such a long delay, but that perhaps PSV/MLS would provide more compelling information in the reply declaration. So, let’s take a quick look and see.

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Beyond the obvious annoyance underlying this opening from PSV/MLS over the judge entering that May 8th order, they are right that 6(B)(1) gives the Court wide discretion on these matters to grant extensions. But let’s talk about the reasoning here. “Conserve litigation resources?” What does that even mean? Are they paying their attorneys time-and-a-half? PSV/MLS have multiple attorneys from well-regarded firms working on this case. If they’re arguing that they’re being spread to thin based on the multiple motions/appeals, well, they’re the ones that filed those pleadings in the first place. As for wanting to “avoid rushing their reply,” we’ll talk about that in a bit.

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Again, the annoyance displayed here is pretty clear to see. As to the premise that PSV/MLS gain nothing by a delay, to me that is probably right. The sooner they motion to dismiss is decided, the better it is for MLS, though I had to chuckle about how they completely avoid describe what these “time-sensitive decisions with respect to running their business in 2019 and beyond” are, even though everyone knows what they’re talking about. Of course, this doesn’t explain why they wanted to wait 90 days to file the reply.

PSV/MLS argue the extension request is in good faith and for good reasons:

PSV/MLS spend a lot of time trying to counter the implication in the City/State response that they’ve been acting in bad faith, arguing that they have not previously delayed their filings, or only asked for short extensions.

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So here’s the thing for me: If PSV/MLS was going to request some extra time for the reply, why didn’t they request more than two days initially? The implication was that their brief was ready to be filed on May 11, since that’s the date they requested. What is it about the Order, which put off ruling on the Motion to Dismiss, that has changed things so that they’d need up to 90 additional days? They talk about the complexities of the issues, and yes they are complex. But I’m not sure how the May 8th Order impacts things.

As to the claim that the plaintiffs want to extend this process…I suppose that’s true insofar as they want to ensure that PSV/MLS comply with the statute and run out the clock without giving local buyers the chance to purchase the team. But the plaintiffs (and SaveTheCrew at large) have been on notice that local buyer(s) need to step up; it’s not like the judge is going to give them years to come up with someone to purchase the team. Indeed, the judge’s Order specifically says he can cut short the toll or eliminate it, which he would surely do if there aren’t any local buyers.

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“[R]ealities of the Order?” Again, I don’t know what this means. The Order requires PSV/MLS to meet regarding a potential settlement, participate in a valuation and put together a non-disclosure agreement. None of which has anything to do with the motion to dismiss.

PSV/MLS argue that the plaintiffs were slow in responding to a request to extend the reply deadline, and tried to extract “concessions” regarding discovery:

Interestingly, PSV/MLS pull back the curtain on their dealings with the plaintiffs, and essentially argue that the plaintiffs aren’t playing nice.

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Now, some might find PSV/MLS’ complaints about the plaintiffs’ behavior…interesting, in light of their own actions when it comes to filing and serving documents. Setting that aside, most of the above is the typical back and forth that happens in contentious litigation. Even the smallest slight is blown up to be an affront against professional courtesy and the judicial process. As to the request to provide discovery, well the Plaintiffs noted in their response that they were requesting discovery pursuant to the court Order entered on May 8, so not much new there.

PSV/MLS agree to cut short their request:

So after all that, PSV/MLS at the end of the reply, offer move up their deadline until the middle of July, as opposed to waiting until after the 90-day toll expires.

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So that’s just over two weeks from now, and just under two months since they filed this motion to extend their deadline. As I mentioned in my earlier story, the judge is well within his right to deny this motion, and decide the motion to dismiss solely on the pleadings filed thus far (the motion to dismiss by PSV/MLS and the response from the City/State). My guess is that with PSV/MLS offering a more reasonable timeline, the judge will overlook the fact that PSV/MLS did not comply with the filing deadlines, if only not to appear to be picking on the defendants. But if he denies it, PSV/MLS have nobody to blame but themselves.

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  1. Don’t they need to do at least some discovery to make sure the correct parties are joined to the case? PSV/MLS seem to disagree about who owns the Crew, or at least did when this case started.

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    1. My guess is that most discovery (except what the Judge has already ordered) will come after the motion to dismiss is decided.

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  2. […] As I expected, the Court has granted PSV/MLS’ modified motion to file their Motion to Dismiss reply by July 17, though unlike some of the previous procedural motions, Judge Brown had a bit more to say about this motion filed by the defendants. Reading between the lines, it’s a good thing that PSV/MLS modified their request to file the reply by July 17, instead of at the end of the tolling period. […]

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  3. […] and you don’t see such self-sabotage in USL.  USL is not working with one of its franchisees to rip a founding team out of its community, as with MLS and the Columbus Crew. USL does not have convoluted player allocation and roster […]

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