Cambridge University Press et al v. Patton et al

Filing 114

MOTION for Leave to File Surreply In Further Support Of Defendants' Opposition To Plaintiffs' 106 Motion To Exclude The Expert Report Of Kenneth D. Crews with Brief In Support by Ronald Henry, J. L. Albert, Kenneth R. Bernard, Jr, James A. Bishop, Hugh A. Carter, Jr, William H. Cleveland, Robert F. Hatcher, Felton Jenkins, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, Eldridge McMillan, William NeSmith, Jr, Doreen Stiles Poitevint, Willis J. Potts, Jr, Wanda Yancey Rodwell, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Allan Vigil, Mark P. Becker, Nancy Seamans. (Attachments: # 1 Exhibit 1 -- Surreply, # 2 Text of Proposed Order)(Quicker, Katrina) Modified on 7/1/2009 in order to update docket text (ank).

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al., Plaintiffs, -vs.MARK P. BECKER, in his official capacity as Georgia State University President, et al., Defendants. DEFENDANTS' MOTION FOR LEAVE TO FILE SURREPLY Defendants MARK P. BECKER, in his official capacity as Georgia State University President, et al. (collectively, "Defendants"),") respectfully file this Motion For Leave To File Surreply ("Motion for Leave"). A copy of Defendants' "Surreply In Further Support Of Defendants' Opposition To Plaintiffs' Motion To Exclude The Expert Report Of Kenneth D. Crews" (the "Surreply") is attached hereto as Exhibit 1. Defendants respectfully submit that a surreply is warranted to respond to Plaintiffs' inaccurate characterization of the Defendants' conduct and intentions presented for the first time in Plaintiffs' reply brief. (See Pl. Reply at 10-14). Civil Action File No. 1:08-CV-1425-ODE

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Plaintiffs' reply includes, again, multiple inaccurate assertions of wrongdoing, namely Defendants knew that they would call Dr. Crews as a testifying expert as of January 2009 and purposefully withheld that information. Defendants submit that a surreply is warranted because they would otherwise be denied an opportunity to respond to Plaintiffs' arguments presented for the first time in the reply. "Arguments raised for the first time in a reply brief are not properly before the reviewing court." United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir. 1984) (citing United States v. Benz, 740 F.2d 903, 916 (11th Cir. 1984)). "Normally, a party may not raise new grounds for granting its motion in a reply. Where a party does raise new grounds in its reply, the Court may . . . permit the non-moving party additional time to respond to the new argument." Int'l

Telecomms. Exch. Corp. v. MCI Telecomms. Corp., 892 F. Supp. 1520, 1531 (N.D. Ga. 1995); see also Telecomm Technical Servs., Inc. v. Siemens Rolm Commc'ns, Inc., 66 F. Supp. 2d 1306, 1310 (N.D. Ga. 1998) (allowing non-movant to file surreply briefs because movant raised new arguments in its reply briefs). Nothing in the Federal Rules of Civil Procedure or this Court's Local Rules prohibits the filing of surreplies. See USMoney Source, Inc., v. Am. Int'l Specialty Lines Ins. Co., No. 1:07-cv-0682-WSD, 2008 WL 160709, at *2 n.5 (N.D. Ga. Jan. 15, 2008) (granting parties' motions to file supplemental briefing and noting that

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although surreplies are not allowed as a matter of right, "`the Court may in its discretion permit the filing of a surreply . . . where a valid reason for such additional briefing exists'"), rev'd and remanded on other grounds, 288 Fed. App'x 558, 563 (11th Cir. 2008). Thus, the decision to grant a party permission to file a surreply is within this Court's discretion. See Groobert v. President and Dirs. of Georgetown College, 219 F. Supp. 2d 1, 13 (D.D.C. 2002). Accordingly, Defendants respectfully requests that the Court exercise its discretion and grant leave to file a surreply to clarify the record and to respond to Plaintiffs' new arguments in its reply. WHEREFORE, for the foregoing reasons, Defendants respectfully request that this Court grant their Motion For Leave in the form attached hereto as Exhibit 2 and consider Defendants' Surreply in evaluating Plaintiffs' Motion (Dkt. No. 106).

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Respectfully submitted this 30th day of June, 2009. THURBERT E. BAKER Attorney General R. O. LERER Deputy Attorney General 033887 446962

DENISE E. WHITING-PACK 558559 Senior Assistant Attorney General MARY JO VOLKERT Georgia Bar No. 728755 Assistant Attorney General /s/ Katrina M. Quicker King & Spalding LLP Anthony B. Askew Georgia Bar No. 025300 Special Assistant Attorney General Katrina M. Quicker Georgia Bar No. 590859 Attorneys for Defendants

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CERTIFICATE OF COMPLIANCE I hereby certify, pursuant to L.R. 5.1B and 7.1D of the Northern District of Georgia, that the foregoing Defendants' Motion For Leave To File Surreply complies with the font and point selections approved by the Court in L.R. 5.1B. The foregoing pleading was prepared on a computer using 14-point Times New Roman font.

/s/ Katrina M. Quicker________ Katrina M. Quicker (Ga. Bar No. 590859)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al., Plaintiffs, -vs.MARK P. BECKER, in his official capacity as Georgia State University President, et al., Defendants. CERTIFICATE OF SERVICE The undersigned hereby certifies that, on this 30th day of June, 2009, I have electronically filed the foregoing DEFENDANTS' MOTION FOR LEAVE TO FILE SURREPLY with the Clerk of the Court using the CM/ECF system, which will automatically send e-mail notification of such filing to the following attorneys of record: Civil Action File No. 1:08-CV-1425-ODE

Edward B. Krugman [e-mail] Georgia Bar No. 429927 Corey F. Hirokawa [e-mail] Georgia Bar No. 357087 John H. Rains IV Georgia Bar No. 556052 BONDURANT, MIXSON & ELMORE, LLP 1201 West Peachtree Street NW Suite 3900 Atlanta, GA 30309 Telephone: [phone] Facsimile: [phone]

R. Bruce Rich Randi Singer Todd D. Larson WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone: [phone] Facsimile: [phone]

/s/ Katrina M. Quicker________ Katrina M. Quicker (Ga. Bar No. 590859)

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