In 1985 I Used to File Notices of Unavailability When I Went on Vacation -- So Now There's a Problem?

I remember the days when my senior partners were getting ready to go to Europe and I had to make sure we had properly filed "notices of unavailability" in each and every case in the office, alerting unsuspecting judges that Italy is just lovely this time of year and therefore don't enter any orders until at least three days after the senior lawyer on the file gets back from Milan.

But I used to wear parachute pants back then and Hardcastle and McCormick was my favorite TV show (I hated Thirtysomething).

Indeed, as Judge Scola reminds us, those days are long gone:

THIS MATTER is before the Court following Plaintiff counsel’s filing of a “Notice of Vacation and/or Unavailability” [ECF No. 22]. Counsel asks that “no hearings or depositions be scheduled” while he is out of the country and that “no motions, request to produce, interrogatories, or other pleadings to be filed which require a timely response during this time; and that all pending matters remain in status quo, during this time period.” Not. at 1. Counsel then unilaterally declares that “[t]he filing and service of this Notice shall constitute an application and request for continuance, extension of time and/or protective order as appropriately required for the above reasons.” Id.

This will not do. This type of filing is not authorized by the Federal Rules of Civil Procedure or this District’s Local Rules. It is unreasonable to expect this Court to sua sponte issue continuances and extensions of time whenever a “Notice of Unavailability” is filed in a case. The Court is unwilling and unable, practically speaking, to keep tabs on the scheduling needs and travel plans of every lawyer appearing before it. Counsel is best positioned to know whether or not any case deadline actually conflicts with his vacation schedule. If it does, counsel should confer with the other side and then, if necessary, file a proper motion seeking a continuance, extension of time, or other relief. If this procedure is followed, the Court will make every effort to accommodate reasonable requests to continue and/or for additional time. The Court is confident that opposing counsel will likewise extend reasonable professional courtesy in such matters, consistent with the professional and ethical standards that guide all members of this profession.

Thus, for the reasons explained above, the Court hereby STRIKES counsel’s “Notice of Vacation and/or Unavailability” [ECF No. 22], as ineffective and unauthorized by the Federal Rules of Civil Procedure and this District’s Local Rules.

Hooray!!

Someone Is Not Reading David's Blog.

Here we go again:

Notices of Unavailability.

There, I said it.

Practitioners, let me be your (mostly secular) Rabbi.

When you are about to tell a federal judge not to do anything in your case for a month -- nothing at all, don't do a single thing even if she is about to grant your summary judgment motion and end the case in your favor -- DON'T DO IT JUDGE because I plan to be (a) in Aruba (b) having my goiter removed (c) farting around the house watching internet porn or (d) going to a Star Trek convention.

Ok, maybe the last one.

But otherwise, don't do it.

Do you really think Judge King is going to care about your personal schedule?

Last summer when I had the pleasure and honor of filling in for DOM, we discussed this thanks to a fantastic order on the subject by Magistrate Judge Brown:

The parties should note that there is no local rule in our Court providing for the filing of same, and no federal rule supporting same.  While the Court is not precluding anyone from filing same, and as a matter of professionalism and courtesy they should be considered, the parties should understand that these filings have no legal significance.

Although there were several valid points made in comments worth considering, I stand with Judge Brown on this -- unless you know of an imminent date scheduled in your case that you currently have a conflict with, then why are bothering the Judge with the possibility that at some theoretical point in the future there may be a development in the case, and if and only if that were to happen, and the event required my physical appearance, and no one in my office could cover it, and I can't get back to deal with it, and my magical iPad stopped working and I can't download your orders anymore, then and only then it could be a problem and I just wanted you to know my personal comings and goings because there exists a remote possibility that this incredible confluence of events could somehow come together over the next thirty days and thereby create a personal problem for me.

Other than that, Judge, carry on!