Pampered Chef, Ltd., The v. Alexanian

Filing 250

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 5/31/2011. (gmr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE PAMPERED CHEF,
Plaintiff,
vs.
SANDY ALEXANIAN, DON FUNT,
CHRISTINE LAURICH, LORI MITCHELL,
VALERIE NEWTON, and SHANNON PELL,
Defendants.

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No. 10 C 1399

Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
There is presently pending the plaintiff’s Motion for Preliminary Injunction. On May 23,
2011, the plaintiff filed its Reply brief in support of the Motion. That filing prompted the
defendants’ Motion for Leave to File a Sur-Reply, which contends that the Reply relies on cases not
previously cited by either side, advances new arguments that could and should have been raised in
the initial supporting Memorandum, and relies on evidence that, the Motion argues, was excluded
at the hearing on the preliminary injunction. The proposed Sur-Reply addresses five issues.1 The
plaintiff has objected to the motion.

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They are: plaintiff’s citation of new authority in support of the claimed, previously unadvanced
argument that the Illinois Supreme Court has recognized that the maintenance of a stable workforce as a
legitimate business interest; the non-solicitation provision in the original contract between the plaintiff and
the defendants protects the plaintiff’s annual expenditures to train its 60,000 sales persons; the citation of
supposedly new authority in support of the argument that the non-solicitation provisions are subjected to
lower scrutiny than other restrictive covenants; the reference to litigation pending in the Eastern District of
Missouri; and the plaintiff’s citation to deposition testimony concerning defendants’ “reputation” in the direct
sales industry.

“A reply brief is for replying, not for raising a new ground,” Hussein v. Oshkosh Motor
Truck Company, 816 F.2d 348, 360 (7th Cir. 1987)(Posner, J., concurring), or for advancing a
position that could have been advanced in the opening brief. Delaying the presentation of an
argument until the reply brief in order to get the last word is not only unfair to one's opponent – it
is a form of “sandbagging,”Otto v. Variable Annuity Life Insurance. Co., 134 F.3d 841, 854 (7th Cir.
1998) -- it can effectively result in a one-sided presentation on that argument, which in turn can
adversely affect the accuracy of the judicial process, which depends on comprehensive presentations
by both sides. Cf., United States v. Cronic, 466 U.S. 648, 655 (1984); Adamson v. California, 332
U.S. 46, 59 (1947) (Frankfurter, J., concurring); Burdett v. Miller, 957 F.2d 1375, 1380 (7th Cir.
1992). And, withholding arguments until a reply brief results in an inefficient use of judicial
resources, see Otto,, 134 F.3d at 854 and “divert[s] time from litigants in other cases patiently
waiting in the queue for the limited time of federal judges.” Channell v. Citicorp Nat. Services, Inc.,
89 F.3d 379, 386 (7th Cir. 1996).
Thus, arguments raised for the first time in a reply brief are often deemed waived. See Dexia
Credit Local v. Rogan, 629 F.3d 612, 625 (7th Cir. 2010); United States v. Boyle, 484 F.3d 943, 946
(7th Cir. 2007); United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006); Bodenstab v. County
of Cook, 569 F.3d 657, 658 (7th Cir. 2009). Nonetheless, courts have discretion to allow the filing
of a sur-reply rather than refusing to consider the belatedly advanced argument. Johnny Blastoff,
Inc. v. Los Angeles Rams Football Co., 188 F.3d 427, 439 (7th Cir. 1999), cert. denied 528 U.S. 1188
(2000); Beard v. Seagate Technology, 145 F.3d 1159 (10th Cir. 1998); Commonwealth Edison v.
NRC, 830 F.2d 610, 621 (7th Cir. 1987); Fenster v. Tepfer & Spitz, Ltd., 301 F.3d 851, 859 (7th Cir.
2002). Allowing the filing of a sur-reply ensures the aggrieved party’s right to be heard and the

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court’s vital interest in having a full presentation from both sides.
The defendants have not moved to strike the arguments and authority they claim were not
advanced until the reply brief. It is thus not necessary to reach the question of whether this is an
appropriate case for invocation of the waiver doctrine. Instead, they have asked to file a sur-reply.
The most efficient use of judicial resources in this case is to grant the motion, allow the five-page
brief to be filed, and to consider the points made in it, along with those argued by Pampered Chef.

ENTERED:_____________________________________
UNITED STATES MAGISTRATE JUDGE
DATE: 5/31/11

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