Daker v. Head et al

Filing 250

ORDER denying 205 Motion to Strike 182 Reply to Response to Motion. Denying in part, Denying as moot in part, and Granting in part 205 Motion for Extension of Time to File a Surreply. The Court will consider Defendants' reply and Plaintiff's surreply in ruling on Defendants' motion to dismiss. Signed by Magistrate Judge Benjamin W. Cheesbro on 2/2/2021. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

WASEEM DAKER,
Plaintiff,

CIVIL ACTION NO.: 6:14-cv-47

v.
PATRICK HEAD, et al.,
Defendants.
ORDER
Before the Court is Plaintiff’s Motion to Strike Defendants’ Reply to his Partial Response
to Defendants’ Motion to Dismiss; Alternatively, Motion for Leave and Extension of Time to
File Surreply, doc. 205, Defendants’ Response, doc. 213, and Plaintiff’s Reply thereto, doc. 229.
In his Motion, Plaintiff contends Defendants “ambushed” him with their reply to his partial
response to their motion to dismiss. Id. Specifically, Plaintiff claims Defendants improperly
filed new evidence with their reply brief. Id. The Court does not find it necessary or appropriate
to strike the reply at this time. As one court noted, “[N]othing in the extant authorities, or in the
Federal Rules of Civil Procedure, forbids a movant from making supplemental record
submissions in a reply brief to rebut specific arguments raised by the non-movant’s opposition
brief.” Hammons v. Comput. Programs & Sys., Inc., Civ. No. 05-0613, 2006 WL 3627117, at
*14 (S.D. Ala. Dec. 12, 2006). Moreover, there is no concern over “ambush” in these
circumstances, as Plaintiff has now filed a lengthy surreply, as described below, and has had a
full and fair opportunity to address any and all arguments and evidence raised in Defendants’
reply. Accordingly, the Court DENIES Plaintiff’s Motion to Strike Defendants’ Reply to his
Partial Response to Defendants’ Motion to Dismiss. Doc. 205.

Plaintiff, in the alternative, moves the Court for leave and extension of time to file a
surreply. Id. Local Rule 7.6 provides: “A party intending to file a reply brief shall immediately
so notify the Clerk and shall serve and file the reply within fourteen (14) calendar days of service
of the opposing party’s last brief.” Local R. 7.6. The Court further notes in this district there is
no need to seek prior permission to file a surreply. See Podger v. Gulfstream Aerospace Corp.,
212 F.R.D. 609, 609 (S.D. Ga. 2003). Accordingly, the Court DENIES as moot Plaintiff’s
Motion for Leave to File Surreply, as leave to file his surreply is not required by the Court. As to
Plaintiff’s request for an extension of time, the Court notes Plaintiff filed his surreply on June 9,
2020, doc. 204, which is the same day he filed his Motion for Leave and Extension of Time to
File Surreply, doc. 205. The Court, thus, GRANTS Plaintiff’s Motion for Extension of Time
and will consider his surreply, doc. 204, as timely filed.
In conclusion, Plaintiff’s Motion to Strike Defendants’ Reply to his Partial Response to
Defendants’ Motion to Dismiss; Alternatively, Motion for Leave and Extension of Time to File
Sur-Reply, is DENIED in part, DENIED as moot in part, and GRANTED in part. Specifically,
the Motion to Strike Defendants’ Reply is DENIED, the Motion for Leave to File a Surreply is
DENIED as moot, and the Motion for Extension of Time to File a Surreply is GRANTED. The
Court will consider Defendants’ reply and Plaintiff’s surreply in ruling on Defendants’ motion to
dismiss.
SO ORDERED, this 2nd day of February, 2021.

____________________________________
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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