Dragon Jade International, LTD v. Ultroid, LLC et al

Filing 147

ORDER granting 146 Defendant's Motion to Strike. Plaintiff's Reply 145 is STRICKEN. Signed by Judge James D. Whittemore on 8/19/2019. (AKA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DRAGON JADE INTERNATIONAL,
LTD.,
Plaintiff,
vs.

Case No. 8:17-cv-2422-T-27CPT

ULTROID, LLC, ULTROID MARKETING
DEVELOPMENT CORP., and ULTROID
TECHNOLOGIES, INC.
Defendants.
_______________________________________/
ORDER
BEFORE THE COURT is Ultroid’s Motion to Strike Dragon Jade’s Reply Brief in Support
of Summary Judgment Motion, or, in the Alternative, Motion for Leave to File a Surreply (Dkt. 146).
In the Motion, Ultroid argues that Dragon Jade’s Reply should be stricken as it “contains numerous
claims for affirmative relief that were not contained in Dragon Jade’s summary judgment motion or
in any other motion filed by Dragon Jade.” (Dkt. 146 at p. 3). And as Ultroid correctly contends, “[a]
request for a court order must be made by motion.” See Fed. R. Civ. P. 7(b)(1). Upon review of the
Reply (Dkt. 145), Dragon Jade unequivocally asks this Court to (1) “Sanction Ultroid by precluding
them from using the Sworn Statement as summary judgment evidence”; direct Ultroid to “produce
all withheld documents relating to the portions of the Sworn Statement used by Ultroid”; “disregard
the Sworn Statement when considering any adverse inference against Ultroid to which Plaintiff is
entitled”; and “exclude the affidavit of Ultroid’s patent attorney.” (Id. at pp. 2-3). These requests are
inappropriate in the context of a reply. See Armington v. Dolgencorp, Inc., No.
1

3:07-CV-1130-J-JRK, 2009 WL 210723, at *2 (M.D. Fla. Jan. 20, 2009) (“It is not appropriate to
seek an order for affirmative relief in a response to a motion”).1 Accordingly, the Motion (Dkt. 146)
is GRANTED to the extent that Dragon Jade’s Reply (Dkt. 145) is STRICKEN. All future requests
for affirmative relief shall be in the form of a properly filed motion. See Fed. R. Civ. P. 7(b).
DONE AND ORDERED this 19th day of August, 2019.

/s/ James D. Whittemore
JAMES D. WHITTEMORE
United States District Judge
Copies to: Counsel of Record

1

See also PPS Data, LLC v. Athenahealth, Inc., No. 3:11-CV-746-J-37TEM, 2012 WL 601208, at *2 (M.D.
Fla. Feb. 23, 2012) (“The Court is not inclined to grant any application as serious as one for sanctions under Rule 11
which has not been presented to the Court as a separate motion. Federal Rule of Civil Procedure 7(b)(1), in fact, requires
any ‘request for a court order’ to be ‘made by motion.’ A response to a motion is not a motion.”).

2