Polycon Industries Inc v. R & B Plastics Machinery, LLC

• Court: District Court, N.D. Indiana
• Decided: February 10, 2025
• Docket: 2:19-cv-00485
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

POLYCON INDUSTRIES, INC., ) ) Plaintiff & Counter-Defendant, ) ) v. ) Case No. 2:19-CV-485-PPS ) R&B PLASTICS MACHINERY, LLC, ) and MONROE MOLD, LLC, ) ) Defendants & Counterclaimants. )

OPINION AND ORDER

In this dispute between parties involved in the manufacture of plastic bottles, the Court has taken under advisement two motions to exclude filed by Defendant R&B Plastics Machinery, LLC (“R&B”). R&B’s first motion [DE 244], which renews an earlier motion on the same topic [DE 168], moves to exclude the testimony of Plaintiff Polycon Industries, Inc.’s (“Polycon”) damages expert Dr. Gerald Lynch. R&B’s second motion [DE 253] moves to exclude a spreadsheet prepared by and testimony of Polycon’s former Controller Jill Contro. At R&B’s request, on December 11, 2024, I held a hearing [DE 256] on R&B’s motion to exclude Lynch’s testimony. At that time, briefing had not yet concluded for R&B’s motion concerning Contro. R&B filed its reply [DE 259] on December 18, 2024. Polycon now moves to strike or, in the alternative, for leave to file a sur-reply in response to R&B’s reply. [DE 262.] For the reasons that follow, I GRANT Polycon’s request for leave to file a sur-reply. 1 As a threshold matter, the Northern District of Indiana’s Local Rules do not authorize the filing of a sur-reply. Lafayette Life Ins. Co. v. City of Menasha, Wis., No. 4:09

CV 64, 2010 WL 4553667, at *1 (N.D. Ind. Nov. 3, 2010) (“Local Rule 7.1(a) permits parties to file an initiating brief, a response, and a reply, but does not contemplate the filing of a surreply or response to the reply brief.”) As a result, courts in this district generally do not permit litigants to file a sur-reply. See Carteaux v. Town of Rome City, No. 1:22-cv-004455, 2023 WL 2366964, at *2 (N.D. Ind. Mar. 6, 2023). But there is a narrow exception to this rule. I have discretion to grant a litigant leave to file a sur-reply

“when it raises or responds to some new issue or development in the law.” Merril Lynch Life Ins. Co. v. Lincoln Nat'l Life Ins. Co., No. 2-09-cv-158, 2009 WL 3762974, at *1 (N.D. Ind. Nov. 9, 2009) (citation omitted). That exception applies in this case. As an initial matter, I quickly dispense of Polycon’s request to strike. During the December 11, 2024, hearing I instructed the Parties that I did not anticipate needing

additional briefing on R&B’s motion to exclude Dr. Lynch’s testimony. [DE 263-1 at 12.] Briefing on that motion concluded on October 18, 2024, [DE 248] because R&B elected not to file a reply. The insinuation by Polycon that my comments during the December 11, 2024, hearing meant that I “made it emphatically clear that [I] wanted no further briefing” on R&B’s other motion to exclude is disingenuous. [DE 263 at 1 (emphasis in

original).] My comments concerned R&B’s motion to exclude Dr. Lynch’s testimony [DE 244]; they did not concern R&B’s motion to exclude Contro’s testimony and spreadsheet [DE 253]. R&B had the right to file a reply in support of its motion to

2 exclude concerning Contro. In fact, in the same exchange during the December 11, 2024, hearing I granted Polycon’s oral request for a three-day extension to file their reply.

So it is not the fact that R&B filed a reply after the December 11, 2024, hearing that is the problem, but I take Polycon’s point that the substance of R&B’s reply contains new evidence and argument. R&B’s reply in support of its motion to exclude concerning Contro cites extensively to the December 11, 2024, hearing. [DE 259 at 2–3, 5, 7–15.] Ordinarily, “new arguments and evidence may not be raised for the first time in a reply brief. Reis v. Robbins, No. 4:14–cv–00063–RLY–TAB, 2015 WL 846526, at *2 (S.D.

Ind. Feb 26, 2015). But given the relevance of the December 11, 2024, hearing to not only R&B’s motion to exclude Dr. Lynch but also the separate motion to exclude Contro, I will exercise my discretion to permit Polycon to file a sur-reply. In granting Polycon’s request to file a sur-reply, I strongly caution Polycon against raising new arguments or rehashing arguments that it could have made in its

original response to R&B’s motion to exclude concerning Contro. Any such arguments would be improper and will be stricken. See Chaib v. GEO Grp., Inc., 92 F. Supp. 3d 829, 835 (S.D. Ind. 2015), aff’d, 819 F.3d 337 (7th Cir. 2016) (granting a motion to strike a sur- reply that was “not limited to new evidence and objections” included for the first time in the reply). I include this word of caution because of the lengthy (and concerning)

discovery discussion that dominated the Parties’ response and reply to Polycon’s motion. [See DE 266; DE 269.] I decline at this time to weigh in on this issue given its irrelevance to the limited purpose for which I am granting Polycon’s request to file a

3 sur-reply: to respond to R&B’s citations to the December 11, 2024, hearing in its reply [DE 259] in support of its motion to exclude concerning Contro.

Accordingly, I hereby GRANT Polycon’s motion for leave to file a sur-reply [DE 262] and grant Polycon until February 17, 2025, to file its sur-reply consistent with the instructions herein. SO ORDERED. ENTERED: February 10, 2025.

/s/ Philip P. Simon UNITED STATES DISTRICT JUDGE