Remember Foghorn Leghorn? The overweight rooster in Looney Tunes cartoons? All I seemed to remember was that he was always fighting with George, the hound dog, and I had this image in my mind where George would chase Foghorn, and Foghorn would be stretched out beyond the reach of George’s leash. I never remembered if Foghorn was the aggressor or the victim, but I have the indelible memory of George never being able to catch up with Foghorn’s antics.
We commenced an action against a corporate debtor as well as the president of the company as a personal guarantor. We served the corporate debtor, and was still awaiting for service upon the individual. One day after the service on the corporation, the debtor’s attorney, Foghorn Leghorn, filed a thirty-six page answer, alleging every affirmative defense, as well as interposing a counterclaim for Fair Debt Collection Practices Act violations, and epicly voluminous discovery demands. Three days later, he served a motion to dismiss for improper service. No, not against the corporation, but against the individual. Whom we had not yet served. New York State law permits service within 120 days. So, I called Foghorn to ask him to adjourn his motion for, say, 110 days, so we could effectuate service upon the individual debtor. With his trademark Colonel Sanders-esque drawl, Foghorn refused, “It’s a motion, respond to it, son.”
So, I did, and filed the opposition papers with the Court, simply stating that the motion was entirely premature. The motion was submitted to the Judge for a decision.
However, one month later, we got another motion from Foghorn. This time, he was moving for a default judgment against us, for failing to respond to the FDCPA counterclaim. In New York State Courts of limited jurisdiction, (where this case was situated), there is no need to respond to a counterclaim, as the counterclaims are deemed denied. Once again, I telephoned Foghorn to futilely ask him to withdraw his motion, and for that matter, to withdraw his immaterial counterclaim.
Foghorn responded, “I say, it’s a motion, do whatcha gotta do, son.”
“Well, what I have to do is move for sanctions against you for this deliberately frivolous conduct.” I responded.
“These motions are all in fun, son.”
“Don’t call me that, Mr. Leghorn. I would appreciate a modicum of courtesy and professionalism, here. You’re deliberately wasting my time with these motions.”
“Naw, I ain’t wastin’ your time, son. I got a motion to compel discovery ready to go, too. I am schoolin’ you on how motion practice works.”
“We’ll let the judge be the judge of that.”
Suffice to say, I didn’t need Henery Hawk to defeat Foghorn. The Judge denied both of his motions. After the denial of the motions, I moved for summary judgment. But Foghorn never opposed it, and it was submitted on default, and subsequently granted.
A week after entry of judgment, the Looney Tunes Grim Reaper reared its death knell, as the corporation and individual both filed for bankruptcy.
Timothy Wan is a partner in the firm Smith Carroad Levy & Wan, in Commack, New York, and can be reached at firstname.lastname@example.org. Tim, like everyone, wins some, and loses some.
(Originally published in Commercial Law World Magazine, November 2011)