Jenkins-Dyer v. Drayton et al

Filing 35

MEMORANDUM AND ORDER granting 31 Motion for Leave to File Surreply in Opposition to Plaintiff's Motion for Leave to Amend Complaint. Within 7 days of the date of this order, Defendant Exxon Mobil Corporation shall electronically file and serve its surreply to 23 Motion for Leave to Amend Complaint. Signed by Magistrate Judge David J. Waxse on 2/5/2014. (do)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ISOKE N. JENKINS-DYER,
Plaintiff,
vs.

Case No. 13-cv-2489-JAR-DJW

ANITA L. DRAYTON, et al.,
Defendants.
MEMORANDUM AND ORDER
Pending before the Court is Defendant Exxon Mobil Corporation’s Motion for Leave to
File Surreply in Opposition to Plaintiff’s Motion for Leave to Amend Plaintiff’s Complaint (ECF
No. 31). In support of its motion, Defendant argues that Plaintiff’s Reply (ECF No. 29) includes
factual allegations not yet raised in this action by Plaintiff. Defendant seeks leave to address
only to the newly raised factual allegation, and has attached a copy of its proposed surreply.
Plaintiff opposes the motion, arguing that the motion is untimely filed. Specifically, she
argues that her reply was filed on December 24, 2013 and that D. Kan Rule 6.1(d) allows 14
days to file responses and replies. She further argues that the present motion was filed on
January 13, 2014, which is 20 days after her reply and therefore untimely.
There is no provision in the local rules for filing a surreply absent leave of court.1 Only
under special circumstances, such as when a party improperly raises new arguments in a reply,
will the court grant leave to file a surreply.2 The Court has considered the parties’ arguments and
determines that Defendant should be granted leave to file its proposed surreply in opposition, so
as to respond to the newly raised factual allegations of Plaintiff.

1

Flohrs v. Eli Lilly & Co., No. 12-2439-SAC, 2012 U.S. Dist. LEXIS 175088 at *3 (D. Kan. Dec. 11, 2012)
(citation omitted).
2
Franklin v. City of Merriam, No. 06-2421-CM, 2007 U.S. Dist. LEXIS 41711 at *2 (D. Kan. June 7, 2007)
(citation omitted).

IT IS THEREFORE ORDERED that Defendant Exxon Mobil Corporation’s Motion
for Leave to File Surreply in Opposition to Plaintiff’s Motion for Leave to Amend Plaintiff’s
Complaint (ECF No. 31) is granted.

Within seven (7) days of the date of this Order,

Defendant shall electronically file and serve its surreply to Plaintiff’s Motion for Leave to
Amend Plaintiff’s Complaint.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 5th day of February, 2014.
s/ David J. Waxse
David J. Waxse
United States Magistrate Judge