Although Mark Herrmann co-founded the Drug and Device Law Blog (with Bexis) way back in the day, he now writes for Above the Law. Unlike Above the Law, the Drug and Device Law Blog generally does not feature benchslaps—judicial opinions that take a swipe at counsel for their professional misdeeds.  Though we may secretly enjoy a public comeuppance in spite of our better selves, your bloggers’ overarching purpose is to spread information, authorities, and practical strategies that will help our clients defend medical device and pharmaceutical product liability cases.  So while we try to write interesting, sometimes (hopefully) amusing posts, our usual subject matter is a bit more law-focused.

But today, we get to write about a benchslap (which, of course, Above the Law also has covered), and we also tie it to our more usual blogging purpose.

First, the benchslap:  This comes to us by way of the Northern District of Alabama in an order from McCullers v. Koch Foods of Alabama, LLC, 2024 U.S. Dist. LEXIS 218902, 2024 WL 4907226 (N.D. Ala. Nov. 26, 2024) regarding an opposed motion to extend a responsive pleading deadline.

The dispute arose when defense counsel requested a routine extension of time to respond to the complaint, and the plaintiff’s counsel would not agree to the extension unless the defendant agreed to only file an answer and forgo any motion to dismiss.  The Court was having none of it:

Plaintiff’s counsel’s conditioning of any agreement to an extension was wholly inappropriate, particularly in light of the looming Thanksgiving holiday. Such nonsense wastes time, damages professional relationships, and makes the lawyer withholding consent (or conditioning it) appear petty and uncooperative. Judges rightly expect lawyers to handle minor procedural issues like extensions without unnecessary conflict, and refusing to do so is unprincipled.

Conditioning or denying consent to an extension in this way is fiddle-faddle for an additional reason: it rarely provides any legitimate strategic advantage. Everyone encounters unexpected delays, and extending professional courtesy really costs nothing. But, fostering goodwill by agreeing to short extensions could benefit counsel later in this case—or in future dealings with opposing counsel. The court’s job is to address the merits of the case, not to navigate a world of technicalities. Refusing such a reasonable extension request stinks of petty gamesmanship. Professionalism demands that lawyers pick their battles wisely, and minor extension requests simply are not the place for unnecessary posturing.

The Court also imposed a creative punishment, if you will, designed to dissuade the parties’ counsel from further acts of professional discourtesy:  Lunch.

[T]he court ORDERS that, on or before December 31, 2024, counsel for both Plaintiff and Defendants are to go to lunch together. Plaintiff’s counsel will pay the bill; Defendants’ counsel will leave the tip. The parties will discuss how they can act professionally throughout the rest of this case. Within ten (10) days of the lunch, the parties SHALL file a joint report describing the conversation that occurred at lunch and the amount of the tip. (Emphasis original)

As benchslaps go, this one was creative and funny, and not too harsh while most certainly getting the point across.

It also is a useful authority to file away for some rainy day in the future.  Because of important threshold issues like federal preemption, we usually respond to complaints with a motion to dismiss, not an answer.  That means that when we need extra time to respond to a complaint, we always ask for extensions of time to file our “responsive pleading”, not to file our “answer.”  Almost every such extension request we have made has been granted with professionalism and courtesy.  But maybe twice in our career we have encountered a plaintiff’s attorney who has refused a responsive pleading extension request outright, or–like in McCullers–has tried to make their agreement conditional on our client’s waiver of its right to move to dismiss the complaint.  

We always have found a work-around in the past, but should it ever happen again, we will pull this order out of its file, send it to the opposing counsel, and trust we will get our point across.  Worst case scenario, we end up filing a motion for an extension of time and then ourselves enduring an awkward shared meal with one of our less-reasonable colleagues from across the aisle.