Davis v. Dish Network, LLC

• Court: District Court, S.D. West Virginia
• Decided: October 2, 2019
• Docket: 3:18-cv-01415
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

BRENDA DAVIS and CLARENCE DAVIS,

Plaintiffs,

v. CIVIL ACTION NO. 3:18-1415

DISH NETWORK, LLC

Defendant.

ORDER

This matter is before the Court sua sponte. On September 3, 2019, Defendant DISH Network, LLC (“DISH”) filed a Motion for Summary Judgment. ECF No. 35. On September 17, 2019, Plaintiffs Brenda Davis (“Mrs. Davis”) and Clarence Davis (“Mr. Davis”) filed a Response in Opposition. ECF No. 36. In their Response, Plaintiffs alleged that Mrs. Davis “received multiple calls from the number 877-839-0927 in April and May of 2018,” and that when she “answered these calls, a [DISH] representative was on the line.” Id. at 3. In its Reply, Defendant DISH submitted an affidavit from Joey L. Montano, its Business Operations Manager, declaring that “DISH does not own the ‘0927 number” and that “[i]f Plaintiff received a telephone call bearing the CIN 877-839-0927, DISH did not make the call.” Reply Ex. N, ECF No. 37-2, at 2. Defendant did not address ownership of the number in its original motion. Rule 7.1(a)(7) of this district’s Local Rules of Civil Procedure permits the Court to grant leave for a party to file surreply memoranda. As a general matter, such leave may be appropriate where a party is “unable to contest matters presented to the court for the first time in [an] opposing party’s reply.” Khory v. Meserve, 268 F. Supp. 2d 600, 605 (D. Md. 2003). These matters include new evidence. See, e.g., United States v. Purdue Pharma L.P., No. 5:10-cv-01423, 2012 WL 12930668, at *1 (S.D.W. Va. May 7, 2012). Here, Mr. Montano’s affidavit represents new evidence that Plaintiffs have not been afforded the opportunity to contest. The Court therefore GRANTS leave for Plaintiffs to file a surreply memorandum by Monday, October 7, 2019. Plaintiff’s surreply is limited to addressing the ownership of the 877-

839-0927 number, along with any authenticated evidence tending to demonstrate Defendant’s association with it. The surreply will otherwise conform to Local Rule of Civil Procedure 7.1. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented parties. ENTER: October 2, 2019