Judge finds Avenatti misunderstands procedure in Stormy Daniels case
As is frequently pointed out on DU, deadlines in court proceedings are usually more flexible than advertised by breathless headlines.
When Judge Otero denied Avenatti's untimely motion for expedited discovery a few days back, the judge had set certain deadlines for the defendants to file a response to the Amended Complaint.
In response to the Amended Complaint, Cohen has filed a motion to compel arbitration, and had sought an extension of time to respond to the complaint itself, since the motion to compel arbitration, if granted, would obviate the need to reply to the contract claims of the Complaint. (On the defamation claim, another motion is coming, but that bridge will be crossed in the near future)
Normally, that kind of extension of deadlines is done by joint stipulation. The counsel will "meet and confer" and file a joint stipulation to the extension. The "meet and confer" requirement can be fairly minimal, and is normally a simple telephone call, which can take a couple of minutes. Judges expect the parties to take care of dealing with deadlines on their own, and don't like to hear that counsel is unable to cooperate on something as simple as scheduling the case. They normally have things like serious crimes, terrorism and life-or-death matters on their docket. Two peacocks strutting over a contract dispute does not make their day joyous.
That process seems to have broken down, with yesterday's filing of an ex parte (i.e. without the other side's consent) motion to extend the deadlines filed by Cohen. Among other things, it states:
https://www.courtlistener.com/recap/gov.uscourts.cacd.704250/gov.uscourts.cacd.704250.26.0_1.pdf
On April 3, 2018, counsel for Defendants advised Mr. Avenatti of this ex parte application, in writing, on two occasions. Blakely Decl., ¶¶ 8-10; Ex. C and Ex. D to Blakely Decl. On the second occasion, pursuant to Local Rule 7-19.1, Mr. Blakely attempted to schedule a call the following day (April 4, 2018) to discuss the date and substance of this application. Blakely Decl., ¶ 10; Ex. D to Blakely Decl. However, Mr. Avenatti did not respond to Mr. Blakely’s email for over thirty (30) hours, and when he did respond, Mr. Avenatti offered to schedule the call over the weekend (i.e. at least 2 days later). Blakely Decl., ¶ 11; Ex. E to Blakely Decl. In the interim, on April 4, 2018, Mr. Avenatti appeared on at least three national television news shows to discuss this case: (a) Anderson Cooper 360 on CNN; (b) Megyn Kelly Today on NBC News; and (c) New Day on CNN, with Alisyn Camerota. Blakely Decl., ¶ 11.
...
In light of EC’s pending Motion to Compel Arbitration[Dkt. No. 20] (the “Arbitration Motion”), in which Mr. Trump has joined, Defendants requested that Plaintiff stipulate to a 30-day extension of their response deadline, in the interest of judicial economy.Rather than simply grant this routine request, Plaintiff’s counsel, Michael Avenatti, conditioned Plaintiff’s stipulation to anextension on a separate agreement by defendant Michael Cohen (who is not a party to the cause of action brought against Defendants, and is not requesting an extension at this time) to arbitrate Plaintiff’s second cause of action of defamation against him in the event the Court grants the Arbitration Motion. Plaintiff’s attempt to condition Defendants’routine request for an extension upon a separate agreement from a separate defendant (MichaelCohen) is wholly inappropriate and runs afoul of Section B.2. of the Central District’s Civility and Professionalism Guidelines, which states in pertinent part: “Unless time is of the essence, as a matter of courtesy we will grant first requests for reasonable extensions of time to respond to litigation deadlines.”
Today, Avenatti filed an opposition to this request for an extension:
https://www.courtlistener.com/recap/gov.uscourts.cacd.704250/gov.uscourts.cacd.704250.27.0_1.pdf
Plaintiff’s counsel interpreted this very clear directive from the Court as an admonition to the parties to make sure the parties not deviate from the Cour t’s instructions and that the deadlines “must” be complied with. A stipulation to move Defendants’ response deadline would constitute such a deviation. As a result, both on the phone on Monday, April 2nd, and in Plaintiff’s counsel’s e -mail to Defendants dated Tuesday, April 3rd, Plaintiff’s counsel stated: “(A)s we have previously explained, Judge Otero set out specific deadlines in his order last week, which we believe he intends for the parties to follow. This is not a simple case of moving deadlines set by the FRCP.” (Blakely Decl., Ex. D (Dkt No. 26- 1 at 16); Avenatti Decl., ¶ 3.)
Surprisingly, Judge Otero ruled on Cohen's motion and Avenatti's opposition, within hours:
https://www.courtlistener.com/recap/gov.uscourts.cacd.704250/gov.uscourts.cacd.704250.28.0_1.pdf
Defendants request that the Court extend the deadline to file an Answer to the First Amended Complaint ("FAC"
until after the Court rules on a pending motion to compel arbitration, filed by Defendants on April 2, 2018. (See Mot. to Compel Arbitration, ECF No. 20.) Plaintiff opposes this request on the grounds that the Court set a firm deadline for filing a responsive pleading to the FAC in a previous order. (See Order Denying Pl's Mot. for Expedited Jury Trial 4, ECF No. 20.) Plaintiff's argument is premised on the misunderstanding that a motion to compel arbitration cannot be substituted for a responsive pleading.
Courts considering the matter have consistently held, however, that "a defendant in a pending lawsuit may file a petition or motion to compel arbitration in lieu of an answer to the complaint . .. as procedural summaries in arbitration cases uncontroversially reflect." Lamkin v. Morinda Properties Weight Parcel, LLC, 440 F. App'x 604, 607–08 (10th Cir. 2011) (citing Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 83 (2000), Davis v. S. Energy Homes, Inc., 305 F.3d 1268, 1270 (11th Cir. 2002)); see also Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010) (reviewing a motion to compel arbitration under Federal Rule of Civil Procedure 12(b)(1)).
...
The instant dispute could, and should, have been resolved in a civil manner by the parties without intervention by the Court. A short request for extension, supported by good cause, that causes no prejudice to any party, should be accommodated.
As to the merits of the Application, as Defendants are not required to file a responsive pleading while a motion to compel arbitration is pending, the Court GRANTS Defendants' Application.
For those keeping score at home, Avenatti is 0 for 2 thus far in his motion practice. But it's early in the game, and Team Cohen is sure to provide some howlers before long.
Plus, Avenatti is doing much better on TV. If this case were being tried before Lawrence O'Donnell instead of Judge Otero, it would be pretty much over by now.
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Remember this guy in Caddyshack:
He’s got one job. Figuring out if the ball goes into the cup.
