U.S.BANK NATIONAL ASSOCIATION v. BANK OF AMERICA, N.A.

Filing 38

ENTRY on Pending Motions. ORDER denying U.S. Bank's 34 Motion for Leave to File Sur-Reply ; denying U.S. Bank's 30 Motion for Oral Argument. (See Order). Signed by Judge Tanya Walton Pratt on 9/22/2015. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
U.S. BANK NATIONAL ASSOCATION as
successor (Wells Fargo Bank, NA), as Trustee
(Registered Holders of Citigroup Commercial
Mortgage Trust 2007-C6, Commercial
Mortgage Pass-Through Certificates, Series
2007-C6), acting by and through Special
Servicer CWCapital Asset Management LLC,
Plaintiff,
vs.
BANK OF AMERICA, N.A.,

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Case No. 1:14-cv-01492-TWP-DKL

Defendant.
ENTRY ON PENDING MOTIONS
This matter is before the Court on pending motions. Specifically, on January 20, 2015,
Plaintiff, U.S. Bank National Association (“U.S. Bank”) filed a motion for oral argument regarding
the Defendant’s, Bank of America, pending motion to dismiss. (Filing No. 30.) In addition, on
February 17, 2015, U.S. Bank filed a motion for leave to file a sur-reply to Bank of America’s
reply brief. (Filing No. 34). For the reasons stated below, these motions are DENIED.
Courts generally do not permit litigants to file a sur-reply brief. Hall v. Forest River, Inc.,
3:04-CV-259-RM, 2008 WL 1774216, at *1, n.1 (N.D. Ind. Apr. 15, 2008). A sur-reply is only
occasionally allowed “where the moving party raises new factual or legal issues in its reply brief,
in order to ensure that the non-moving party has an adequate chance to respond to the new issues.”
Cummins, Inc. v. TAS Distrib. Co., 676 F. Supp. 2d 701, 705-06 (C.D. Ill. 2009) (emphasis added);
Indianapolis Minority Contrs. Ass’n v. Wiley, No. IP 94-1175-C-T/G, 1998 WL 1988826, at *3
(S.D. Ind. May 13, 1998) (denying motion to file sur-reply when new or impermissible arguments

were not raised in the reply). A court’s decision to permit the filing of a sur-reply is purely
discretionary.

Meraz-Camacho v. United States, 417 F. App’x 558, 559 (7th Cir. 2011)

(unpublished opinion).
To begin, this Court considers the briefing on Bank of America’s motion to dismiss to be
extensive. S.D. Ind. Local R. 7-1(e) sets the page limit for supporting and response briefs,
excluding the table of contents, table of authorities, and the certificate of service, at 35 pages. In
addition, the rule same rule sets the page limit for reply briefs at 20 pages. S.D. Ind. Local R. 71(e). Bank of America’s opening brief in support of its motion to dismiss, excluding the table of
contents, table of authorities, and the certificate of service, is 17 pages long. (Filing No. 24.) U.S.
Bank’s response brief, excluding the table of contents, table of authorities, and the certificate of
service, is exactly 35 pages. (Filing No. 27.) Bank of America’s reply brief, excluding the table
of contents, table of authorities, and the certificate of service, is exactly 20 pages. (Filing No. 31.)
Both briefs contain substantive and argumentative footnotes throughout; in addition, in the course
of their argument the parties cite 130 unique cases and 12 unique statutes and rules. The veritable
library of legal authorities already cited in the parties’ briefs, all of which this Court must carefully
consider and review when deciding the motion to dismiss, is sufficient for the Court to address the
motion to dismiss. In addition, U.S. Bank raises no new factual or legal issues in its reply brief
which would justify the proposed sur-reply.
Similarly, this Court also does not consider oral argument to be necessary or helpful to
resolve the motion to dismiss.
To the extent that U.S. Bank believes that additional briefing and argument is necessary to
clarify Bank of America’s alleged “mischaracterization” of the legal authorities presented, this
Court is capable of addressing any such issues during its own assessment of the authorities.

Further, to the extent that both parties object to the tone of the opposing party’s brief, this Court
reminds both parties that Courts do not respond kindly to either name-calling or quickly-made
accusations of illicit motives or ethical violations. In this regard, both parties are reminded to
remain civil with one another and to retain perspective, even in the face of a highly-contested
motion.
For these reasons, U.S. Bank’s motion for leave to file a sur-reply (Filing No. 34) is
DENIED. In addition, U.S. Bank’s motion for oral argument (Filing No. 30) is DENIED.
SO ORDERED.

Date: 9/22/2015

Distribution:
Peter S. French
BENESCH, FRIEDLANDER, COPLAN &
ARONOFF, LLP
[e-mail]
Stephanie Sackellares Penninger
BENESCH, FRIEDLANDER, COPLAN &
ARONOFF, LLP
[e-mail]
Christopher Charles Hagenow
BLACKWELL, BURKE & RAMSEY, P.C.
[e-mail]
David Michael Bullington
BLACKWELL, BURKE & RAMSEY, P.C.
[e-mail]

Colleen M. Mallon
VENABLE LLP
[e-mail]
Gregory A. Cross
VENABLE LLP
[e-mail]
John V. Sunder
VENABLE LLP
[e-mail]
Lauren E Cuneo
Winston & Strawn LLP
[e-mail]
Luke A Connelly
Winston & Strawn LLP
[e-mail]