Bohannan et al v. Innovak International, Inc. (JOINT ASSIGN)

Filing 85

ORDER: it is ORDERED that Plfs may, but are not required to, file a sur-reply brief on or before 2/23/2018; The brief is limited to discussing Innovak's 62 motion for summary judgment as to Counts 3, 4, and 5. Signed by Chief Judge William Keith Watkins on 2/16/2018. (alm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
MELISSA BOHANNAN, et al.,
Plaintiffs,
v.
INNOVAK INTERNATIONAL,
INC.,
Defendant.

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CASE NO. 1:16-CV-272-WKW
[WO]

ORDER
Before the court is Innovak’s motion for summary judgment. (Doc. # 62.)
As the party moving for summary judgment, it is Innovak’s burden to “show[] that
there is no genuine dispute as to any material fact and [that it] is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphasis added). Yet
Innovak waited until its reply brief to discuss Plaintiffs’ claims under Counts 3, 4,
and 5. (Doc. # 74, at 7–13.) “[D]istrict courts, including this one, ordinarily do
not consider arguments raised for the first time on reply.” Park City Water Auth. v.
N. Fork Apartments, L.P., No. 09-CV-0240-WS, 2009 WL 4898354, at *1, *1 n.2
(S.D. Ala. Dec. 14, 2009) (citing cases from over 40 districts applying the rule in
2009 alone); Belfast v. Upsilon Chapter of Pi Kappa Alpha Fraternity at Auburn
Univ., 267 F. Supp. 2d 1139, 1147–48 (M.D. Ala. 2003); see also Herring v. Sec’y,
Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (“As we repeatedly have

admonished, ‘[a]rguments raised for the first time in a reply brief are not properly
before a reviewing court.’” (alteration in original) (quoting United States v. Coy,
19 F.3d 629, 632 n.7 (11th Cir. 1994)).)
The Eleventh Circuit has recognized that a district court has discretion to
allow a sur-reply brief in such a situation. See Clinkscales v. Chevron U.S.A., Inc.,
831 F.2d 1565, 1568 (11th Cir. 1987). Although Plaintiffs have not moved to file
one, in the interest of fairness and to avoid even a whiff of prejudice, the court will
sua sponte grant Plaintiffs leave to file a sur-reply brief to respond only to
Innovak’s arguments regarding summary judgment for Counts 3, 4, and 5. See Lu
v. Lezell, 45 F. Supp. 3d 86, 91 (D.D.C. 2014) (“If the movant raises arguments for
the first time in his reply brief to the non-movant’s opposition, the [c]ourt may
either ignore those arguments in resolving the motion or provide the non-movant
an opportunity to respond to those arguments by granting leave to file a surreply.”).
Accordingly, it is ORDERED that Plaintiffs may, but are not required to, file
a sur-reply brief on or before February 23, 2018.

The brief is limited to

discussing Innovak’s motion for summary judgment as to Counts 3, 4, and 5.
DONE this 16th day of February, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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