The Volokh Conspiracy

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"A Request for an Extension the Day of a Deadline Is Poor Professional Practice"


A reminder from Judge Paul Byron (M.D. Fla.) in Edgar County Watchdogs, Inc. v. Kurowski. My sense is that a judge's willingness to expressly say this in an order shows that he's more than a little annoyed with the offending behavior.

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  1. While I agree that best practice is to file a request for an extension at the earliest point that it's obvious that it will be necessary, Fed. R. Civ. P. 6(b)(1)(A) expressly allows an extension made any time before the expiration of the deadline, and I don't see anything in the Middle District of Florida's local rules purporting to change that. So I'm not sure the annoyance is warranted—though of course I would be extra punctilious about deadlines prospectively were I involved in this case.

    1. I assume there is a remedy to insure the court follows the Rules of Civil Proc? Asking as a lay person.

      1. Depends on the rule. I mean you can bring an assignment of error on appeal if you feel the court violated the rules on any issue during the litigation. But the rules give the courts wide discretion in setting most deadlines.

        1. Also, extensions of deadlines are discretionary, and are only supposed to be granted "for good cause."

    2. Apply early is a rule like the so-called unwritten rules of baseball.

    3. How can you not know before the deadline its going to be late? They didn't know yesterday that they were not going to get it done? The day before? Hard to believe. If a brief takes x days, and you postpone it until deadline-x days, its going to be late for sure. If it only takes 1-2 days, why leave it until the last minute? Get it 90% done, then polish it a few days before.

      I have no doubt that there are extraordinary circumstances when filing a last second extension is required... car crash, heart attack, zombie apocalypse... but those will not come with an admonition from the court.

      1. "zombie apocalypse" -- unless one is applying for a writ of habeas corpus.

      2. A brief may have taken longer than anticipated. Lawyers have other cases and something came up. Maybe there was difficulty in finding time to review it with the client. Lawyers are people with lives and sometimes explaining the basics of life in a motion for continuance other than just saying “press of business” is an even bigger waste of time.

        1. This. In the real world, things happen. It depends on a judge's personality, but generally speaking, when it's a short term thing judges aren't too hardass about short extensions (at least not the first time!), even if you ask at the last minute. (OTOH, when you wait until the day discovery closes and then ask for a several month extension of that, judges can get a bit more pissy.)

      3. How can you not know before the deadline its going to be late?

        They did know before the deadline that it was going to be late. They just didn't let the judge know as soon before the deadline as the judge thought they should have.

      4. "If a brief takes x days, and you postpone it until deadline-x days, its going to be late for sure."

        Briefs don't come with a label "will take X days to complete." Sometimes issues are more complex than expected or you ran into an unexpected issue. And there can also be non-brief emergencies that spring up that will prevent you from being able to finish something. While I habitually get my briefs done considerably before the deadline, even I admit that there can be last-minute problems for even a conscientious person. Doing it once or twice isn't a problem. But doing it consistently means you need to learn how to manage your time better.

    4. Annoyance might be warranted at the case as a whole rather than this particularly benign request. it looks like they’re responding to a motion to dismiss with a third amendment complaint. Seems like an annoying case already. But even if you are annoyed….don’t show it on the docket unless and until the parties either make BS a pattern or someone really screws up.

      And besides. It’s not like the judge and the clerk were chomping at the bit to review the third amended complaint first thing Saturday morning. No harm to anyone in the case by letting it be filed Tuesday.

      I’m reminded of this classic order from Judge Crocker when at least one side is a little too obsessed with deadlines:

      1. It’s not like the judge and the clerk were chomping at the bit to review the third amended complaint first thing Saturday morning

        How do you know ? The judge may have gone to the trouble of reorganising his golf game to Saturday afternoon, just so he could get this motion out of the way.

        I’m reminded of this classic order from Judge Crocker when at least one side is a little too obsessed with deadlines

        I'm reminded of a classic occasion when my then employer had a modest tax dispute with the English tax authorities. About five million dollars were at stake, and we thought it worth going to the court of first instance, at least, since our advisers thought we had the better case and the authorities weren't offering a deal.

        One of our lawyers spotted that in the paperwork, something that the tax authorities were supposed to have done within 30 days of the day before the eleventh day after the fourth day preceding the day of the Full Moon etc etc, they had in fact only managed to do on the 31st such day.

        Our lawyers advised that this would totally nix the tax authorities claim. We non lawyers raised an eyebrow at this, but they insisted that the courts would apply the deadline absolutely ruthlessly. When the tax authorities lawyers were advised of this little deadline slip, they wouldn't even bother going to court, they'd drop the case.

        And they did. So five million dollars for us, and a good lunch for the spotty legal youth who had identified the tax authority's little error.

    5. In the SDNY/EDNY judges typically have a 48-hour rule in their Rule 16 order or in their individual rules.

      But that's not what Fed. R. Civ. P. 6 says anyway. It authorizes — not requires — courts to grant extensions before the deadline expires. (For good cause, which means whatever the judge wants it to mean, obviously.) And (b)(1)(B) allows the judge to do so after the deadline too, though the standard is higher. (But, again, it's whatever the judge wants to do.)

  2. And just sometimes it's necessary to ask for an extension at the last minute. Lawyers don't control what clients and others do/don't do and when. Sometimes, we just don't know until the day it's due. That's why the rule is written to permit it.

  3. The link seems to be to the docket on Court Listener rather than the opinion at issue.

    1. It’s a minute order on the docket not an opinion.

    2. The line is from the text order at ECF No. 48:

      ENDORSED ORDER finding as moot 45 & 17 Motions to Dismiss for Failure to State a Claim; granting 46 Unopposed Motion to Amend. On or before May 3, 2022, Plaintiffs shall file the proposed third amended complaint. The Court advises the parties that a request for an extension the day of a deadline is poor professional practice. The Court further notes that additional requests to modify any deadlines in the case will require extraordinary good cause. Signed by Judge Paul G. Byron on 4/29/2022. (SJB) (Entered: 04/29/2022)

      1. THIRD amended complaint? Reading between the lines, it sounds like there has already been some lousy lawyering going on, and the Judge feels like his time is being wasted. It sounds like Plaintiff has already had three chances to state a claim and failed every time.

  4. Just out of interest, in law offices around the land, when senior lawyer asks junior lawyer to do some piece of work, "and I want it by 3pm on Friday" - does senior lawyer ever become somewhat peeved if junior lawyer zaps a quick email at 2.55pm on Friday saying "sorry, not gonna make it." Does senior lawyer generally prefer to get such emails at 5pm on Thursday ? If so, does senior lawyer ever hint to junior lawyer, when junior lawyer is a fresh faced newcomer, that warnings of a missed deadline are preferred other than at the last minute ?

    As a non lawyer, who used to consume qute a lot of the services of lawyers, I seem to recall that most senior lawyers were quite good at calling, or havng their minions call, to warn that something might arrive later than promised, while junior lawyers (I presumed on account of youth and inexperience) were sometimes more lax. I assumed that one learned from experience, over the years, that blowing off clients is unprofitable.

    I expect that, at root, it's a personality thing - some people are considerate, others not so much. Some people always aim to arrive early to a date, others aim to arrive roughly on time or thereabouts, whatev.

    Perhaps the law does not tend to attract the considerate in large numbers.

    1. When I was a fourth-year associate, I had asked a younger associate (probably a second-year) to do something simple. I think it was to draft a subsidiary guarantee for the bond issuance I was working on. I asked on a Monday, and told him I needed it by Friday morning, because I would need to review it, and we were going to do a distribution that afternoon. I come in to work Friday morning, and see that rather than leave me a draft guarantee, the junior associate left me a voicemail at about 2 a.m. saying he wasn't going to be able to get to it. I was not happy.

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