Chase Bank USA N.A. v. Edward Cherry

Filing 223

MEMORANDUM AND ORDER re 221 MOTION for Leave to File Surreply Brief filed by Laura L. Hess is GRANTED. See Order for details. Signed by Judge Mary Pat Thynge on 11/8/2012. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

CHASE BANK USA, N.A.,
Plaintiff,
v.
LAURA L. HESS, et al.,
Defendants.

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C. A. No. 08-121-LPS-MPT

MEMORANDUM ORDER
Defendant, Laura l. Hess (“Hess”) has moved for leave to file a response or
surreply brief to plaintiff’s reply brief to her answering brief in opposition to plaintiff’s
motion for summary judgment. Hess complains that plaintiff raised additional material
that is founded “in both untruths and outright lies.”1
Plaintiff opposes Hess’s motion noting that she merely asserts the above noted
comment and fails to distinguish any purported untruth or lie. Plaintiff points out,
consistent with D. Del. L 7.1.3(c)(2), its reply brief appropriately responded to Hess’s
arguments raised in her answering brief. Plaintiff further notes Hess’s response
consisted solely of a “self-serving affidavit” devoid of any record in support. Plaintiff
limited its reply brief to portions of the record that contradict Hess’s assertions, and
supporting case law. It argues Hess “merely is seeking to have the lat word regarding a
motion she did not bring.”2 Therefore, her motion for leave to file a surreply brief should
be denied.
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2

See D.I. 221.
See D.I, 222.

Under our local rules, specifically D. Del, LR 7.1.3, addressed the form and
contents of briefs. That rule recognizes the usual briefing process for a motion is the
filing of an opening, answering and reply briefs, giving the moving party the right to file
an opening and reply in support of its motion. Pursuant to 7.1.3 (c)(2), the contents of a
reply brief shall not “contain material which should have been included in a full and fair
opening brief.” Further, it should not be “a repetition of materials contained in the
opening brief.” As evidenced in this Local Rule, the purpose of the reply brief is to
respond to matters raised in the answering brief, and not raise new arguments.3
Hess does not claimed plaintiff’s reply brief raised new arguments not addressed
in its opening brief. Hess also did not provide a copy of her proposed surreply brief for
the court to review. A review of plaintiff’s reply brief shows it responded to Hess’s
arguments, which is the purpose of a reply brief. Since plaintiff did not raise new
arguments in its reply brief, the filing of a surreply as requested by Hess is questionable.
Courts recognize “[a] pro se complainant . . . must be held to less stringent
standards than formal pleadings drafted by lawyers.”4 Courts also note, proceeding as
a pro se litigant, however, does not give a party the right to “flagrantly disregard the
Federal Rules of Civil Procedure in an effort to manipulate rulings in [her] favor.”5
Although delays in this matter have occurred due to Hess’s conduct, the court does not

3

Southco, Inc. v. Penn Engineering & Manufacturing Corp., 768 F. Supp 2d 715,
721 (D. Del. 2011); See also, Federal Ins. Co. v. Signtactics, Inc., 1998 WL 175882, *2
(Local Rule 7.1.3 does not imply surreply briefs are not allowed, as long as leave from the
court is first sought).
4
Ning Ye v. Holder, 644 F. Supp. 2d 112, 116 (D. D.C. 2009) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
5
Lewis v. Williams, C.A. No. 05-013-GMS, 2010 WL 2640188, *3 (D. Del June 30.
2010).
2

find her request for a surreply brief to be unreasonable, recognizing her pro se status.
In allowing Hess to file a surreply brief, the court will view it as a supplement to her
answering brief and allow plaintiff to respond. Therefore,
IT IS ORDERED that defendant Hess’s motion for leave to file a surreply
brief (D. I. 221) is GRANTED, subject to the following limitations: the surreply brief shall
operate as a supplement to defendant’s answering brief, shall be limited to five (5)
pages double spaced, no less than twelve point font and filed on or before December
12, 2012. Plaintiff may file a response operating as a supplement to its reply brief and
limited to five (5) pages double spaced, no less than twelve point font which shall be
due on or before December 28, 2012. No further briefing shall be allowed on plaintiff’s
motion for summary judgment.

Date: November 8, 2012

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

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