ROCK v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION

Filing 203

ORDER DENYING LEAVE TO FILE SURREPLY - the Court DENIES the NCAA's motion for leave to file a sur-reply. (Filing No. 196.) However, Mr. Rock is cautioned that any new arguments that may have been raised in the reply, apart from the anticipated expert rebuttal reports, will not be considered by the Court. Finally, the parties should anticipate no further briefing regarding the motion to certify class. Signed by Judge Tanya Walton Pratt on 2/29/2016. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN ROCK,

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Plaintiff,
vs.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION,
Defendant.

No. 1:12-cv-01019-TWP-DKL

ORDER DENYING LEAVE TO FILE SURREPLY
On January 22, 2016, the Plaintiff, John Rock (“Mr. Rock”) filed a reply brief to his motion
to certify class. (Filing No. 184.) Over a month later, on February 24, 2016, the Defendant,
National Collegiate Athletic Association (“NCAA”), filed a motion for leave to file a sur-reply.
(Filing No. 196.) On February 29, 2016, Mr. Rock filed a response. (Filing No. 201.)
In the motion for leave, the NCAA asserts that a sur-reply is necessary to address new
arguments raised for the first time in Mr. Rock’s reply brief. As such, the NCAA requests leave
to file a nine-page sur-reply on March 7, 2016, after the NCAA has completed the deposition of a
rebuttal expert on February 29, 2016. In his response, Mr. Rock contends that no new issues were
raised in the reply and notes that rebuttal experts were anticipated in a prior briefing order.
As Seventh Circuit courts have made clear, “reply briefs are for replying, not for raising
new matters or arguments that could and ought to have been advanced in the opening brief.” Ner
Tamid Congregation of N. Town v. Krivoruchko, 620 F. Supp. 2d 924, 929 (N.D. Ill. 2009).
Raising new arguments in a reply brief is not only “unfair to one’s opponent” but also “adversely
affects the accuracy of the judicial process, which depends on comprehensive presentations by

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both sides.” Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 235 F.R.D. 435, 437 (N.D.
Ill. 2006). To avoid this impermissible result, courts “either invoke the waiver doctrine or allow
the filing of a surreply.” Id.
The Court notes that the NCAA did not specifically identify any new arguments that were
raised for the first time in Mr. Rock’s reply. Instead, the NCAA contends that Mr. Rock’s reply
brief was accompanied by three previously undisclosed expert reports, one of which offers a new
definition of “recruit”.
Nevertheless, as Mr. Rock points out, this Court’s briefing schedule specifically allowed
Mr. Rock to file rebuttal expert reports in his reply brief to the motion for class certification.
(Filing No. 65 at 5.) Accordingly, the NCAA cannot credibly argue that it was “surprised” by the
attachment of Mr. Rock’s rebuttal expert reports in the reply. That scheduling order, entered
almost two and a half years ago, also anticipated no sur-reply brief. Despite being aware of this
schedule and the likelihood of new expert reports being filed in the reply, the NCAA did not move
for leave to file a sur-reply brief to respond to Mr. Rock’s rebuttal experts until over one month
after briefing on the motion for class certification was fully completed. The Court considers this
too late. Instead, without identifying a “new” and unanticipated argument in Mr. Rock’s reply
brief, the Court does not consider the NCAA’s request to file a sur-reply to be justified.
Accordingly, the Court DENIES the NCAA’s motion for leave to file a sur-reply. (Filing
No. 196.) However, Mr. Rock is cautioned that any new arguments that may have been raised in
the reply, apart from the anticipated expert rebuttal reports, will not be considered by the Court.
Finally, the parties should anticipate no further briefing regarding the motion to certify class.

Date: 2/29/2016

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Distribution:
Joseph N. Williams
RILEY WILLIAMS & PIATT, LLC
[e-mail]

Daniel E. Pulliam
FAEGRE BAKER DANIELS LLP
(Indianapolis)
[e-mail]

William N. Riley
RILEY WILLIAMS & PIATT, LLC
[e-mail]

Kathy Lynn Osborn
FAEGRE BAKER DANIELS LLP
(Indianapolis)
[e-mail]

Jacob K. Danziger
SCHIFF HARDIN, LLP
350 S. Main Street, Suite 210
Ann Arbor, MI 48104

Daniel J. Kurowski
HAGENS BERMAN SOBOL SHAPIRO
LLP
[e-mail]

Gregory L. Curtner
SCHIFF HARDIN, LLP - Michigan
[e-mail]

Jeff D. Friedman
HAGENS BERMAN SOBOL SHAPIRO
LLP
[e-mail]

Jessica A. Sprovstoff
SCHIFF HARDIN, LLP - Michigan
[e-mail]

Jon T. King
HAGENS BERMAN SOBOL SHAPIRO
LLP
[e-mail]

Kimberly K. Kefalas
SCHIFF HARDIN, LLP - Michigan
[e-mail]
Robert James Wierenga
SCHIFF HARDIN, LLP - Michigan
[e-mail]

Steve W. Berman
HAGENS BERMAN SOBOL SHAPIRO
LLP
[e-mail]

Suzanne L. Wahl
SCHIFF HARDIN, LLP - Michigan
[e-mail]

Elizabeth A. Fegan
HAGENS BERMAN SOBOL SHAPIRO,
LLP
[e-mail]

Sara Willingham
THE PAYTNER LAW FIRM PLLC
[e-mail]

James Piatt
RILEY WILLIAMS & PIATT, LLC
[e-mail]

Stuart McKinley Paynter
The Paynter Law Firm PLLC
[e-mail]

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