United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
E. Wier, United States Magistrate Judge
moves for leave to file a surreply to BancTec's reply in
support of its motion for summary judgment. DE ##92 (Motion),
93 (Memorandum), 93-1 (Proposed surreply). BancTec does not
oppose FTC filing a surreply “so long as” the
Court also permits a “response” to the surreply,
or, “for lack of a more elegant term,
” a sur-surreply. DE #95 (Response), 95-1
(Proposed sur-surreply). FTC replied, opposing BancTec filing
a sur-surreply. DE #97. The issues, as convoluted as the
parties made them, are ripe for consideration.
the Federal Rules of Civil Procedure do not expressly permit
the filing of sur-replies, such filings may be allowed in the
appropriate circumstances, especially ‘when new
submissions and/or arguments are included in a reply brief,
and a nonmovant's ability to respond to the new evidence
has been vitiated.'” Key v. Shelby Cnty.,
551 F. App'x 262, 265 (6th Cir. 2014) (quoting Seay
v. Tenn. Valley Auth., 339 F.3d 454, 481 (6th Cir.
2003)). “[M]any courts have noted” that
surreplies “are highly disfavored.” Liberty
Legal Found. v. Nat'l Democratic Party of the USA,
Inc., 875 F.Supp.2d 791, 797 (W.D. Tenn. 2012). The
Sixth Circuit reviews a district court's decision whether
to grant leave to file a surreply “under the
deferential abuse-of-discretion standard.” Mirando
v. U.S. Dep't of Treasury, 766 F.3d 540, 549 (6th
Cir. 2014). A district court abuses its discretion, for
example, when it denies permission to file a surreply after a
party presents “new arguments and new evidence in [its]
reply brief.” Eng'g & Mfg. Servs., LLC v.
Ashton, 387 F. App'x 575, 583 (6th Cir. 2010).
Overall, though, “[w]hether to permit a party to file a
surreply is a matter left to the trial court's
discretion.” Rose v. Liberty Life Ins. Co. of
Boston, No. 3:15-CV-28-DJH-CHL, 2015 WL 10002923, at *1
(W.D. Ky. Oct. 19, 2015); see also First Tech. Capital,
Inc. v. BancTec, Inc., No. 5:16-CV-138-REW, 2016 WL
7444943, at *1-*2 (E.D. Ky. Dec. 27, 2016) (previously, in
this case, granting FTC leave to file a surreply and setting
out the standard).
Court has, in the context of the motion, fully assessed the
underlying briefing-DE ##72, 80, and 90-as well as the
briefing on the requests for leave to file a surreply and
sur-surreply-DE ##92, 93, 95, and 97. The Court, in an
exercise of its discretion, finds FTC's proposed surreply
appropriate and BancTec's proposed sur-surreply
inappropriate. The questions are properly distinct, and
the Court bifurcates the analysis:
FTC justified filing a surreply? Yes.
Sixth Circuit's focus is whether “new submissions
and/or arguments are included in a reply brief.”
Key, 551 F. App'x at 265; Ashton, 387
F. App'x at 583. Here, as FTC persuasively lays out and
BancTec does not in any way dispute, BancTec “offer[ed]
a completely new argument” in DE #90 that it had not
made in DE #72-“that even if it did breach
Schedule 8 by failing to pay a month of rent, FTC
‘treated the contract as continuing' and cannot
withhold performance of its end of what BancTec sees as the
Schedule 8 bargain . . . or alternatively, that even if there
were a breach and ‘FTC did not treat the
contract as continuing, the alleged breach was not
material.'” DE #93, at 2 (emphases in original).
These arguments are indeed new to the reply. Compare
DE #72-1 (not making these arguments), with DE #90
(making them). The Court also finds FTC's proposed
surreply to, indeed, be “confined completely to the new
theory offered by BancTec in reply[.]” DE #93, at 3.
FTC filed the motion for leave to file a surreply essentially
immediately (1 day) after BancTec's reply, greatly
diminishing any timing or gamesmanship concerns that may
negatively tinge surreply motions. See Key, 551 F.
App'x at 265 (“[c]onsidering the amount of time
that passed between Shelby County's filing of its reply
brief and Key's filing of her motion for leave to file a
sur-reply” and concluding the district court did not
abuse its discretion in denying Key permission to file a
surreply given an “unexplained delay of six months in
moving for leave to file” it). Overall, under the Sixth
Circuit's standard, and in light of BancTec's
complete lack of opposition, the Court finds permitting an
FTC surreply, in these circumstances, appropriate. FTC should
fairly have an opportunity to address the new arguments or
theories BancTec injected into the reply.
BancTec justified filing a sur-surreply? No.
does not attempt, in any way, to meet the legal standard for
filing a sur-surreply. Rather, it simply asserts, citing no
authority, that “[b]ecause [it] must carry the burden
of proof for its motion for summary judgment . . . [it]
should be permitted to have the final word.” DE #95, at
not the law. Indeed, the argument runs counter to the
fundamental principles behind surreply authorization. Of
course, in an ordinary briefing cycle, a movant does
have the final word. See LR 7.1(c) (permitting
replies). However, when the movant improperly (as BancTec did
here) uses its reply to introduce new arguments not contained
in the underlying motion, the movant opens the door to the
Court authorizing the nonmovant to file a surreply to address
and conclude briefing on the novel reply theories. See,
e.g., Key, 551 F. App'x at 265.
BancTec's argument logically dictates that every
surreply authorization automatically, if implicitly,
sanctions a sur-surreply, which, of course, is not correct
(and BancTec cites utterly no authority for the proposition).
See, e.g., Novartis Corp. v. Webvention
Holdings, LLC, No. CCB-11-3620, 2016 WL 3162767, at *2
n.3 (D. Md. June 7, 2016) (considering a sur-surreply only
because “Novartis could not have addressed [new]
surreply arguments”); PacTool Int'l, Ltd. v.
Kett Tool Co., Inc., No. C06-5367BHS, 2011 WL 2194010,
at *1 (W.D. Wash. June 6, 2011) (denying leave to file a
sur-surreply); Hill v. Ford Motor Co., No.
1:11-cv-799-JEC, 2014 WL 916486, at *9 (N.D.Ga. Mar. 10,
2014) (same); Duchardt v. Midland Nat'l Life Ins.
Co., 265 F.R.D. 436, 439 (S.D. Iowa 2009) (noting the
Court's “discretion” to
“consider” a sur-surreply). The Court does not
permit surreplies, and certainly not sur-surreplies, as a
matter of course.
even evaluating BancTec's request under the standard
surreply authorization rubric, BancTec does not claim (much
less establish) that FTC's surreply raises any novel
arguments or theories. The Court has reviewed the proposed
sur-surreply and finds that it does not address any new
arguments that FTC improperly inserted in its surreply.
Indeed, FTC properly restrained the scope of its surreply to
the new issues BancTec improperly included in reply. The
proposed sur-surreply merely responds to the surreply
arguments (none of which is new), an insufficient
basis to permit yet another brief. Enough, says the Court.
these reasons, the Court GRANTS DE #92, ORDERS the Clerk to
file DE #93-1 in the record as a surreply to DE #90, and
DENIES BancTec permission to file a sur-surreply.