United States of America v. Malik

Filing 105

ORDER granting in part and denying in part 96 Plaintiff's Motion for Leave to File Surreply. Plaintiff shall forthwith electronically file its Surreply in Opposition to Defendant's 71 Motion for Sanctions Against the United States and exhibits. The Court, however, will only consider the Surreply with respect the particular issues newly raised by Malik in his reply. Signed by Magistrate Judge Teresa J. James on 1/17/2017. (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v.
AFAQ AHMED MALIK,
Defendant.

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Case No. 15-cv-9092-CM-TJJ

ORDER GRANTING IN PART LEAVE TO FILE PLAINTIFF’S SURREPLY
This matter is pending before the Court on Plaintiff’s Motion for Leave to File Surreply
(ECF No. 96). Plaintiff United States of America (“the Government”) seeks leave to file a
surreply to the Motion for Sanctions (ECF No. 71) filed by Defendant Afaq Ahmed Malik
(“Malik”) on the grounds that Malik’s reply “makes several factual misstatements and
misconstrues the record.” Malik has filed a lengthy 16-page response in opposition.1
Under District of Kansas Local Rule 7.1(c), briefing on motions is limited to the motion
(with memorandum in support), a response, and a reply.2 A surreply is not allowed unless the
court grants a party leave to file it.3 Circumstances that may justify granting leave to file a
surreply include where a movant raises new legal arguments or presents new evidence in a reply,

1

Only the first four pages of Malik’s response address or respond to the Government’s motion for
leave to file surreply. The remainder appears to be Malik’s attempt at a sur-surreply and seek to interject
significant and substantial additional information and issues into the record that were not raised by new
legal arguments or new evidence presented in Malik’s reply and are not essential to deciding Defendant's
Motion for Sanctions. The Court will not consider any argument after page 4 of Malik’s response in
deciding this motion or Malik’s pending Motion for Sanctions.
2

COPE v. Kansas State Bd. of Educ., 71 F. Supp. 3d 1233, 1238 (D. Kan. 2014).

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Id.

which the responding party should be given an opportunity to address.4 The rules governing the
filing of surreplies “are not only fair and reasonable, but they assist the court in defining when
briefed matters are finally submitted and in minimizing the battles over which side should have
the last word.”5
After reviewing Malik’s Reply (ECF No. 93) in support of his Motion for Sanctions, the
Court finds that Malik raised new evidence and arguments in the reply to which the Government
should be given an opportunity to address. Specifically, the Court finds Malik mentions new
evidence regarding the number of conversations the Government’s counsel had with witness
Carolyn Jacobs and the metadata on the “content created” date of her Declaration. Malik also
makes new allegations with respect to Fishman’s alleged action of withholding Jacobs’ contact
information to thwart Malik from taking her deposition. As Malik raised these arguments and
evidence for the first time in his reply, the Government is entitled to an opportunity to respond to
this new evidence and arguments.
However, the Court finds the Government’s proposed Surreply would also interject other
additional information and issues into the record that were not raised by new legal arguments or
new evidence presented in Malik’s reply. The Court will therefore grant the Government leave to
file its Surreply, but will only consider it with respect those particular issues identified above,
which were newly raised by Malik in his reply.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Leave to File Surreply
(ECF No. 96) is granted in part and denied in part. Plaintiff shall forthwith electronically file its

4

Id. See also Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005) ( a nonmoving party
should be given an opportunity to respond to new material raised for the first time in a reply brief ).
5

COPE, 71 F. Supp. 3d at 1238.

2

Surreply in Oppositio to Defend
on
dant’s Motio for Sancti
on
ions Against the United States and
t
exhibits.
T
RDERED.
IT IS SO OR
Dated this 17th day of Jan
D
nuary, 2017, at Kansas C
,
City, Kansas
s.

Teresa J. Ja
ames
U. S. Magi
istrate Judge
e

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