Britvic Soft Drinks LTD. v. Field Service 400 LLC et al

Filing 79

MEMORANDUM AND ORDER denying 75 Plaintiff's Motion to Strike New Arguments in Reply Memorandum or for Leave to File Sur-reply. Signed by District Judge Carlos Murguia on 5/14/2012. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRITVIC SOFT DRINKS, LTD.,

Plaintiff,
v.

FIELD SERVICE 400 LLC;
JAMES BIRCH; et al.,
Defendants.

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Case No. 05-2101-CM

MEMORANDUM AND ORDER

In this closed case, defendant James Birch recently filed a motion to vacate judgment (Doc.
70). After defendant filed his reply brief, plaintiff filed a related motion: Plaintiff’s Motion to Strike
New Arguments in Reply Memorandum or for Leave to File Sur-reply (Doc. 75). Plaintiff requests
that the court either strike and disregard a portion of defendant’s reply memorandum because it raises
new arguments and authorities, or alternatively allow plaintiff to file a surreply to address the new
arguments.
Plaintiff correctly notes that this court ordinarily declines to consider new arguments offered
for the first time in a reply brief. See Liebau v. Columbia Cas. Co., 176 F. Supp. 2d 1236, 1244 (D.
Kan. 2001). This court will strike new arguments that appear in reply briefs to avoid a situation where
an “opposing party has not had an opportunity to address the issues.” Boilermaker-Blacksmith Nat’l
Pension Fund v. Gendron, 67 F. Supp. 2d 1250, 1257 n.4 (D. Kan. 1999) (citing Martin v. Kansas, 996
F. Supp. 1282, 1295 (D. Kan. 1998)).

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The court finds that defendant’s reply brief does not inappropriately raise new arguments. To
the contrary, defendant tailored his reply to plaintiff’s response brief. Plaintiff identified perceived
weaknesses in defendant’s arguments and authorities, and defendant replied with reasons he believes
he remains entitled to relief. Plaintiff had an opportunity to address all issues discussed by defendant,
and did so at length. And defendant is not necessarily expected to contain his authorities to those cited
in his original brief when replying to plaintiff’s arguments. Defendant’s reply appropriately countered
plaintiff’s arguments, and plaintiff’s motion to strike is denied. For these same reasons, plaintiff is not
entitled to file a surreply.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Strike New Arguments in Reply
Memorandum or for Leave to File Sur-reply (Doc. 75) is denied.
Dated this 14th day of May, 2012, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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