Savage v. Finney et al

Filing 44

OPINION AND ORDER granting 38 Motion to Strike Plaintiffs Sur-Reply filed by the defendants. Signed by Magistrate Judge Andrew P Rodovich on 9/2/11. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
VIRGIL SAVAGE,

)
)
Plaintiff
)
)
v.
)
)
DR. LEON D. FINNEY, JR.;
)
GEORGETTE FINNEY; WOODLAWN COMM.)
DEV. CORP.; OFFICERS and BOARD )
COLLECTIVELY and INDIVIDUALLY; )
THE WOODLAWN ORG.; CLARENCE
)
NIXON; CLARENCE NIXON CONSULTING)
MANNING & SILVERMAN CO.; MOARIJ )
KHAN & RESNIK GROUP,
)
)
Defendants
)

CIVIL NO. 2:11 cv 100

OPINION AND ORDER
This matter is before the court on the Motion to Strike
Plaintiff’s Sur-Reply [DE 38] filed by the defendants on August
1, 2011.

The defendants filed a motion to dismiss, or alterna-

tively to transfer venue, on March 31, 2011.

The plaintiff,

Virgil Savage, responded on June 25, 2011, and the defendants
filed their reply brief on July 8, 2011.

On July 19, 2011,

Savage filed a document captioned "Plaintiff Surrebutter to
Defendant Clarence’s and CNC Group, LLC’s Reply in Support of
Motion to Dismiss, Or In The Alternative to Transfer Venue and
For a More Definite Statement."

The document addresses the same

arguments he raised in his response brief and the defendants
responded to in their reply.

Savage did not seek leave of court

prior to filing the sur-reply, and the defendants now move to
strike Savage’s sur-reply.

Savage did not respond to the

defendants’ motion to strike.
Local Rule 7.1(a) permits parties to file an initiating
brief, a response, and a reply, but it does not contemplate the
filing of a sur-reply or response to the reply brief.

The court

generally does not permit litigants to file a sur-reply brief.

Hall v. Forest River, Inc., 2008 WL 1774216, *n.3 (N.D. Ind.
April 15, 2009); Runkle v. United States, 1995 WL 452975, *1
(N.D. Ind. May 9, 1995).

However, "[a] surreply brief is occa-

sionally allowed when it raises or responds to some new issue or
development in the law."

Merril Lynch Life Ins. Co. v. Lincoln

Nat. Life Ins. Co., 2009 WL 3762974, *1 (N.D. Ind. Nov. 9, 2009)
(citing Hall, 2008 WL 1774216 at *n.3).

The court's decision to

permit or deny a sur-reply brief is reviewed under an abuse of
discretion standard.

Cleveland v. Porca Co., 38 F.3d 289, 297

(7th Cir. 1994).
The rules do not contemplate the filing of a sur-reply
brief, and Savage was not entitled to file a sur-reply brief
without seeking leave of court.

Savage, however, filed his sur-

reply without seeking permission.

By failing to seek leave of

court or to respond to the defendants’ motion to strike, Savage
has not demonstrated why his sur-reply was warranted, nor does
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review of his sur-reply brief justify its necessity.

Savage’s

sur-reply does not address new developments in the law nor does
it respond to arguments that could not have been addressed in his
initial response.

Savage’s sur-reply reiterates the position he

took in his response brief and attempts to put forth more evidence to support the same.

For this reason, his sur-reply brief

is unnecessary, and the Motion to Strike Plaintiff’s Sur-Reply
[DE 38] filed by the defendants on August 1, 2011, is GRANTED.
ENTERED this 2nd day of September, 2011

s/ Andrew P. Rodovich
United States Magistrate Judge

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