Q: Does a "my way or the highway" attitude in a "meet & confer" letter run afoul of "good faith"?
Defendants in a civ case in a fed dist, where a LR requires good-faith meet&confer efforts prior to filing motions, sent me, plaintiff, a meet&confer letter, before they filed a motion-to-dismiss, that appears to want to have it both ways. Their meet&confer letter outlined their arguments, and though the letter did invite me to call them "so we can further meet and confer on these issues," the letter then immediately closed by saying, "Absent an agreement to dismiss these claims, defendants will have no choice but to bring a motion to dismiss." Does this posture constitute a meet&confer effort in GOOD FAITH? What would be the point in contacting def counsel when they're telling me in advance that they' won't budge an inch no matter what I tell them? To me, this meet&confer effort is merely PRO FORMA, intended to give the APPEARANCE that defendants are open to discussion when, in fact, they've already made up their mind, and there is really nothing to discuss. Am I wrong?
A:
In assessing whether the defendants have met the "good faith" requirement in their meet and confer efforts, it's important to consider the overall intent and openness conveyed in their communication. The phrase “my way or the highway” does suggest a certain rigidity, which might appear at odds with the spirit of cooperative negotiation implied by good faith requirements. However, simply stating an intention to file a motion to dismiss if no agreement is reached does not necessarily violate the good faith standard. It could be seen as a clear outline of their position and consequences, which is a standard practice in legal negotiations.
You might still consider reaching out to the defendants' counsel as suggested in their letter. This action could provide an opportunity to explore any potential for compromise or at least to better understand their position. Engaging in this conversation could also strengthen your position later by demonstrating your own commitment to resolving the dispute in accordance with the court’s expectations for good faith negotiations.
Ultimately, whether their approach is seen as a violation of the good faith requirement could depend on the broader context of how they handle the discussion during your communication. If they demonstrate a complete unwillingness to consider your arguments or alternative resolutions, it might strengthen your argument that their efforts were merely procedural rather than substantive. It would be prudent to document all interactions to support your perspective should the need arise to present this issue to the court.
1 user found this answer helpful
A: An attorney could advise more definitively after reviewing matter in detail, but the spirit of that posture suggests a take-it-or-leave-it approach, which is not usually seen as conduct that embodies good faith. Good luck
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