FERESU v. INDIANA UNIVERSITY BLOOMINGTON
ORDER ON (1) DEFENDANT'S MOTIONS TO STRIKE AND OBJECTION TO PLAINTIFF'S "SURREPLY FILINGS" AND (2) PLAINTIFF'S REQUEST FOR ADDITIONAL TIME TO RESPOND TO DEFENDANT'S MOTIONS TO STRIKE - IU's Motions to Strike Plai ntiff's Surreply Filings are DENIED (Filing No. 83 ; Filing No. 84 ). As such, Ms. Feresu's Request for Additional Time to respond to Defendant's Motions to Strike Plaintiff's Surreply Filings is DENIED as moot (Filing No. [8 5]; Filing No. 86 ). IU's Motion for Summary Judgment has been more than adequately briefed. The Court does not need additional filings at this point to make a determination regarding the Motion. (See Order.) Copy sent to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 1/23/2017. (JLS) Modified on 1/23/2017 (JLS).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANA UNIVERSITY BLOOMINGTON,
ORDER ON (1) DEFENDANT’S MOTIONS TO STRIKE AND OBJECTION TO
PLAINTIFF’S “SURREPLY FILINGS” AND (2) PLAINTIFF’S REQUEST FOR
ADDITIONAL TIME TO RESPOND TO DEFENDANT’S MOTIONS TO STRIKE
This matter is before the Court on Defendant the Trustees of Indiana University’s (“IU”)
“Motion to Strike Plaintiff’s Filing of January 4, 2017, Entitled: ‘Surreply to Summary
Judgment,’” (Filing No. 83) and “Objection to and Motion to Strike Portions of Plaintiff’s Filing
of January 3, 2017, Entitled: ‘Response to: Objection to Material Submitted with, and Defendant’s
Reply to, Plaintiff’s ‘Motion to Deny Approval of Summary Judgment and Response to Summary
Judgment Motion Douments [sic] 42-44-3’’” (Filing No. 84) (collectively “Defendant’s Motions
to Strike Plaintiff’s Surreply Filings”), as well as Plaintiff Shingairai Feresu’s (“Ms. Feresu”)
Request for Additional Time to respond to Defendant’s Motions to Strike Plaintiff’s Surreply
Filings (Filing No. 85; Filing No. 86).
On June 23, 2016, IU filed its Motion for Summary Judgment on Ms. Feresu’s claims
(Filing No. 42). Ms. Feresu filed her Response Brief on October 17, 2016. IU filed its Reply Brief,
with objections to Ms. Feresu’s designated evidence, on November 14, 2016. Ms. Feresu asked
for numerous extensions of time to file a surreply brief, which the Court granted. Ms. Feresu filed
her “Surreply Filings” on January 3 and 4, 2017 (Filing No. 78; Filing No. 79).
The Court notes that Local Rule 56-1(d) provides:
A party opposing a summary judgment motion may file a surreply brief only if the
movant cites new evidence in the reply or objects to the admissibility of the
evidence cited in the response. The surreply must be filed within 7 days after the
movant serves the reply and must be limited to the new evidence and objections.
Thus, Local Rule 56-1(d) allows a summary judgment surreply only in limited circumstances—if
the movant cites new evidence in the reply or objects to the admissibility of the evidence cited in
The “purpose for having a motion, response and reply is to give the movant the final
opportunity to be heard and to rebut the non-movant’s response, thereby persuading the court that
the movant is entitled to the relief requested by the motion.” Lady Di’s, Inc. v. Enhanced Servs.
Billing, Inc., 2010 U.S. Dist. LEXIS 29463, at *4 (S.D. Ind. Mar. 25, 2010). However, “new
arguments and evidence may not be raised for the first time in a reply brief. Reply briefs are for
replying, not raising new arguments or arguments that could have been advanced in the opening
brief.” Reis v. Robbins, 2015 U.S. Dist. LEXIS 23207, at *5 (S.D. Ind. Feb. 26, 2015) (citations
omitted). “[T]his serves to prevent the nonmoving party from being sandbagged.” Id. (citation
omitted). Therefore, courts will allow a surreply only in limited circumstances to address new
arguments or evidence raised in the reply brief or objections to the admissibility of the evidence
cited in the response. See, e.g., id.; Miller v. Polaris Labs., LLC, 2014 U.S. Dist. LEXIS 18161
(S.D. Ind. Feb. 12, 2014).
In the Defendant’s Motions to Strike Plaintiff’s Surreply Filings, IU asserts that Ms.
Feresu’s Surreply Filings are really a second, untimely response brief to IU’s Motion for Summary
Judgment, unauthenticated and inadmissible documents, and an attempt to reinject her previously
dismissed claims under the Americans with Disabilities Act and the Equal Rights Under Law Act,
42 U.S.C. § 1981. On these bases, IU asks the Court to strike Ms. Feresu’s Surreply Filings.
Filed as responses to the Defendant’s Motions to Strike Plaintiff’s Surreply Filings rather
than as a motion for an extension of time, Ms. Feresu asks the Court for additional time to “study
the documents, and see how best I am supposed to submit a surreply, and reply to Documents 83
and 84, as appropriate.” (Filing No. 86 at 2.) Ms. Feresu asks for this additional time to respond
because of her health and because she is not a lawyer.
Upon review of the parties’ filings, the Court notes that it is able to appropriately review
the arguments and designated evidence and determine the facts based upon those arguments and
evidence without consideration of which party got the “final word.” The Court also notes that it
understands what claims are pending before the Court and what consideration is due to the
evidence and arguments. Therefore, IU’s Motions to Strike Plaintiff’s Surreply Filings are
DENIED (Filing No. 83; Filing No. 84). As such, Ms. Feresu’s Request for Additional Time to
respond to Defendant’s Motions to Strike Plaintiff’s Surreply Filings is DENIED as moot (Filing
No. 85; Filing No. 86). IU’s Motion for Summary Judgment has been more than adequately
briefed. The Court does not need additional filings at this point to make a determination regarding
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