The Yard Milkshake Bar Properties, LLC et al v. BBH Creations, LLC et al

Filing 21

Order GRANTING in part & DENYING in part Plf's 16 MOTION to Strike Affidavit or, in the Alternative, MOTION for Leave to File Sur-Reply. Motion is DENIED as to striking Robert Steele's Affidavit. Alternative request to file a sur-reply is GRANTED. Plfs may file their sur-reply NLT 2/26/2021 as set out. Signed by District Judge Terry F. Moorer on 2/18/21. (tot)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THE YARD MILKSHAKE BAR
PROPERTIES, LLC, and
THE YARD MILKSHAKE BAR
FRANCHISING, LLC,
Plaintiffs,
v.
BBH CREATIONS, LLC; BO STEELE
a/k/a ROBERT K. STEELE; and
SHERRI STEELE,
Defendants.

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CIV. ACT. NO. 1:20-cv-498-TFM-MU

ORDER
Pending before the Court is Plaintiff The Yard Milkshake Bar Properties, LLC and Plaintiff
The Yard Milkshake Bar Franchising, LLC (collectively “Plaintiffs”) Motion to Strike Affidavit
or, in the Alternative Motion for Leave to File Sur-Reply (Doc. 16, filed 02/01/21).
On December 21, 2020, Defendant BBH Creations, LLC, Defendant Bo Steele, and
Defendant Sherri Steele (collectively “Defendants”) filed a Motion to Dismiss. Doc. 8. On
January 11, 2021, Plaintiffs filed a response in opposition. Doc. 10. On January 19, 2021,
Defendants filed a Reply. Doc. 11. At issue here is the exhibit to Defendants’ Reply brief—the
Affidavit of Robert Steele. Doc. 11-1, Exhibit A. Defendants justify their submission of an
affidavit alleging additional relevant facts because they “only learned of relevant information
concerning a compulsory counter-claim after Defendants’ Motion to Dismiss was initially filed.”
Doc. 11, at 1, n.1.
Plaintiffs argue that they are disadvantaged by Defendants’ failure to file the Affidavit of
Robert Steele until their Reply Brief. Consequently, they request that this Court strike the Affidavit
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and any argument in the Reply Brief relying on it. Doc. 16 at 4. Plaintiffs reason that the Affidavit
“includes additional information seeking to refute the allegations of the Complaint that should
have been included with the initial motion to dismiss and which have no relevance whatsoever to
the alleged compulsory counterclaim.” Id. at ¶ 6. Furthermore, Plaintiffs argue that Defendants’
failure to file the Affidavit with its initial motion to dismiss precludes the Plaintiffs from having
the opportunity to respond substantively. Id. at ¶ 8.
The motion is GRANTED in part and DENIED in part. The motion is DENIED as to
striking Robert Steele’s Affidavit.

However, the alternative request to file a sur-reply is

GRANTED. Plaintiffs may file their sur-reply no later than February 26, 2021. To be clear, this
sur-reply shall not exceed the scope of the reply and its attached affidavit.
DONE and ORDERED this 18th day of February 2021.
s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE

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