Andrews v. 1788 Chicken, LLC

• Court: District Court, S.D. Mississippi
• Decided: August 22, 2023
• Docket: 3:22-cv-00276
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

DEBRAH ELIZABETH ANDREWS PLAINTIFF

vs. CIVIL ACTION No.: 3:22-cv-276-HTW-LGI

1788 CHICKEN, LLC D/B/A/ ZAXBY’S AND JOHN DOES 1-10 DEFENDANTS

ORDER

BEFORE THIS COURT is Motion [Docket no. 17] of Defendant 1788 Chicken, LLC (“Defendant”) to strike the sur-reply of Plaintiff Debra Elizabeth Andrews (“Plaintiff”). Defendant contends that Plaintiff’s Sur-Reply is unauthorized and improper pursuant to Federal Rule of Civil Procedure 12(f). Rule 12(f) states as follows: Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

Plaintiff has not filed a Response to the Defendant’s Motion, which was filed on October 13, 2022, thereby rendering the response time as long overdue. Defendant filed a Motion for Judgment on the Pleadings on September 15, 2022. [Doc. 8]. After Plaintiff filed her response in opposition to Defendant’s Motion on September 20, 2022, [Doc. 12], Defendant filed a reply in further support of its Motion on September 27, 2022. [Doc. 14]. While Local Rule 7(b)(4) allows the movant to file a reply, it does not authorize a non-movant to file a sur-reply. See L.U. Civ. R. 7(b)(4). Nevertheless, on October 4, 2022, Plaintiff filed a “Response to Defendant’s Reply Brief” [Doc. 16], which this court construes as an unauthorized sur-reply. Federal Rule of Civil Procedure 7 “contemplates only the filing of: 1) a motion; 2) a response; and 3) a reply (also referred to as a ‘rebuttal’).” Brown v. Wiggins, Civ. A. No. 3:18-cv-

487-HTW-LRA, 2019 WL 3723628, at *1 (S.D. Miss. Aug. 7, 2019) (internal citation omitted). Similarly, Local Rule 7(b)(4) does not permit a non-movant to file an additional brief after the nonmovant files its initial response. See L.U. Civ. R. 7(b)(4); Stewart v. Treasure Bay Casino, No. 1:12CV197-LG-JCG, 2015 WL 11112501, *3 (S.D. Miss. Jan. 7, 2015) (holding that the local rules do not permit the filing of a sur-reply). “Leave of court is required to file an additional brief because, inter alia, the movant is generally entitled to file the last pleading.” See: Kennedy v. Jefferson Cnty., Miss. by and through Bd. of Supervisors, Civ. A. No. 5:13-cv-226-DCB-MTP, 2014 WL 12773803, at *1 (S.D. Miss. Oct. 28, 2014) (citing Pierce v. The Clarion Ledger, 433 F. Supp. 2d 754, 760 n.7 (S.D. Miss. 2006) (emphasis added)); Patton v. Bryant, 2014 WL 36618 (S.D. Miss. Jan. 6, 2014) (striking sur-reply filed without leave of court); Mims v. General Motors,

No. 3:09cv617-DPJ-FKB, 2011 WL 4454932, at *12 (S.D. Miss. Sept. 23, 2011) (same). “Surreplies are heavily disfavored by courts.” Warrior Energy Servs. Corp. v. ATP Titan M/V, 551 Fed. Appx. 749, 751 n.2 (5th Cir. 2014) (quotation omitted); see also United States ex rel. Rigsby v. State Farm Fire and Cas. Co., 2014 WL 12713070, at * 1 (S.D. Miss. Oct. 24, 2014) (“Surreplies, and any other filing that serves the purpose or has the effect of a surreply, are highly disfavored as they usually are a strategic effort by the nonmovant to have the last word on the matter.”) (quotation omitted); Dedeaux v. Turner, Civ. A. No. 1:18-cv-263-HSO-RHW, 2019 WL 8755118, at *1 (S.D. Miss. Nov. 14, 2019) (recognizing that non-movant’s brief styled as a response to a reply brief “was, in effect, a sur-reply [filed] without first seeking leave of court.”). District courts, however, may grant a non-movant leave to file a sur-reply when the movant’s reply addresses new theories or arguments to which the non-movant did not have an opportunity to respond. See, e.g., Kennedy, 2014 WL 12773803, at *1 (“Leave to file should be granted [only] when judicial experience and common sense deem it appropriate,” including when

“new arguments actually have been raised in the reply brief and [when] these arguments have been identified in the motion for leave to file.”); State Auto Property Cas. Ins. Co. v. Pendleton, 3:16- CV-567-TSL-RHW, 2017 WL 5659992 (S.D. Miss. Aug. 18, 2017); Elwood v. Cobra Collection Agency, No. 2:06cv91-KS-JMR, 2006 WL 33694594, at *7 (S.D. Miss. Dec. 14, 2006); Atkins v. Salazar, No. 1:10CV40-SA-JAD, 2010 WL 3937960, at n.1 (N.D. Miss. Oct. 5, 2010). Plaintiff herein did not request nor receive leave of court to file a surrebuttal. Understandably, Defendant’s reply brief did not raise any new arguments. Plaintiff’s sur-reply, then, is not anchored in relevant caselaw. Accordingly, this court hereby strikes Plaintiff’s unauthorized sur-reply [Doc. 16]. IT IS, THEREFORE, ORDERED that Defendant’s Motion to Strike Plaintiff’s

Unauthorized Sur-Reply [Docket no. 17] is hereby GRANTED. SO ORDERED this the 22nd day of August, 2023. /s/HENRY T. WINGATE _____ UNITED STATES DISTRICT COURT JUDGE