Podger v. Gulfstream Aerospace Corp.

212 F.R.D. 609, 2003 U.S. Dist. LEXIS 1922, 2003 WL 202578

• Court: District Court, S.D. Georgia
• Decided: January 21, 2003
• Docket: No. 401CV277
• Status: Published

Opinion

ORDER

EDENFIELD, District Judge.

Numerous motions are currently pending before the Court in this age discrimination case, including defendant Gulfstream Aerospace Corporation’s (Gulfstream’s) motion for summary judgment. See doc. ## 36, 55, 57, 58. Here the Court addresses Gulfstream’s motion to strike plaintiff John Podger’s “sur-reply” to its summary judgment reply brief. Doe. # 57.

Following defendant’s motion for summary judgment, doc. # 36, plaintiff’s response, doe. # 46, and defendant’s reply, doc. # 54, Podger filed an additional reply brief addressing, he claims, defendant’s “new arguments.” Doc. # 56. Gulfstream objects, contending that S.D.Ga.Loc.R. 7.5 and 7.6 do not authorize a reply to a reply, and even if they did, plaintiffs reply nevertheless should be struck for failure to comply with Rule 7.6’s notice and timeliness provisions. Doc. # 57 at 2-3.

Rule 7.5 deals with motion responses.¹ It does not explicitly permit successive reply (a/k/a “supplemental,” etc.) briefs,² but neither does it prohibit them, and that’s deliberate.³ Hence, parties may file as many reply briefs as they want. Similarly, Rule 7.6 provides:

LR 7.6 Reply Briefs. A party intending to file a reply brief shall immediately so notify the Clerk and shall serve and file the reply within seven (7) calendar days of service of the opposing party’s last brief.

This Rule exists for the benefit of the Court and not the opposing party. It explicitly — and thus primarily — speaks of notifying the Clerk (and thus this Court), and not an opposing party (F.R.Civ.P. 5 and S.D.Ga. Loc.R. 5.1 address notice to opposing parties). The Rule’s intent is simply to avoid the filing of Court opinions and reply briefs on the same day. A Rule 7.6 notice thus lets the Court know to hold off on issuing an Order so the reply briefer’s effort is not wasted.⁴ It is not a sword.

Perhaps sensing this, Gulfstream’s fallback position here is to request time to reply to Podger’s latest reply brief. Doc. # 57 at 3 n. 1. Because reply briefs may be filed at any time before decision, that request is unnecessary. Given Gulfstream’s confusion, however, the Court will await Gulfstream’s reply brief and proceed as if it just received Gulf-stream’s Rule 7.6 notice of intent to file a reply brief (in which case, Gulfstream must file and serve it within 7 days of the date this Order is served).

Accordingly, defendant Gulfstream Aerospace Corporation’s motion to strike plaintiffs response to Gulfstream’s reply (doc. # 57) is DENIED.

1 . In pertinent part Rule 7.5 states:

LR 7.5 Response to Motion. Unless these rules or the assigned Judge prescribes otherwise, each party opposing a motion shall serve and file a response within fifteen (15) days of service of the motion, except that in cases of motions for summary judgment the time shall be twenty (20) days after service of the motion. Failure to respond shall indicate that there is no opposition to a motion.

2 . "Reply Brief” is a generic term encompassing basically any brief that follows an opening brief and a response brief (hence, "supplemental brief,” "sur-reply brief,” etc.).

3 . Some judges of this Court signed on to a 9/1/98 General Order prohibiting reply briefs without advance permission from the judge presiding over a particular case, but they vacated that Order on 3/20/01. In Re: Reply Briefs, 198MC41 (S.D.Ga.3/20/01) ("Reply briefs will no longer require permission from the presiding judge”). The 4/15/02-amended Rule 7.5 (which does not ban reply briefs) and Rule 7.6 (which merely nudges parties to let the Court know that one’s on the way) now control. Permitting reply briefs, incidentally, is not a new idea. See Ga Sup.Ct.R. 24 {SUPPLEMENTAL BRIEFS) ("Supplemental briefs may be filed at any time before decision") (2003).

4 . Even so, the Court can rule on a motion immediately after it receives a response brief. "Reply briefers," then, should move quickly (precisely why Rule 7.6 says to notify the Court "immediately”). To that end, parties are free to telephon-ically notify each judge's deputy clerk of their reply-brief plans.