Isberner v. Walmart Inc.

Filing 58

MEMORANDUM AND ORDER granting 56 Motion for Leave to File a Sur-reply in Opposition to Defendant's Motion for Summary Judgment. Signed by Chief District Judge Julie A. Robinson on 6/9/2021. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SUSAN ISBERNER,
Plaintiff,
v.

Case No. 2:20-CV-2001-JAR-KGG

WALMART, INC.,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff Susan Isberner’s Motion for Leave to File
Sur-Reply (Doc. 56). Previously, in support of her opposition to Defendant’s pending summary
judgment motion, Plaintiff submitted evidence about complaints made by Stephanie Sullivan and
Kelly Wehling about Chad Rohr.1 In its reply memorandum, Defendant objects to the
admissibility of “me-too” evidence.2 Plaintiff’s proposed surreply addresses the admissibility of
me-too evidence.3 Defendant has responded and opposes the motion.4
“Under D. Kan. Rule 7.1(c), briefing on motions is limited to the motion (with
memorandum in support), a response, and a reply. Surreplies are not typically allowed.”5
Surreplies require leave of court and are only granted under “rare circumstances.”6 Nonetheless,
the nonmoving party on summary judgment “should be given an opportunity to respond to new

1

Doc. 49. at 46-49.

2

Doc. 54.

3

Doc. 56.

4

Doc. 57.

5

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

6

Id. (citation omitted).

material raised for the first time in the movant’s reply.”7 Alternatively, the Court can disregard
new material raised in the reply when reaching its decision.8 New “material” includes both
evidence and legal arguments.9
Here, Defendant’s reply raises the argument, for the first time, that me-too evidence
should not be considered. Defendant argues that it merely responded to Plaintiff’s opposition
rather than presenting new legal arguments. However, Defendant’s response is that the evidence
is wholly inadmissible. Plaintiff is entitled to respond to this objection if the Court is to consider
it. Additionally, Plaintiff’s six-page proposed surreply is strictly limited to addressing the
admissibility argument Defendant raised in opposition to Plaintiff’s me-too evidence. The Court
will be better able to rule on the objection to me-too evidence if the arguments of both parties are
heard. For the reasons above, the Court grants Plaintiff’s motion.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for Leave
to File Sur-Reply (Doc. 56) is granted. Plaintiff shall file it on the docket forthwith.
IT IS SO ORDERED.
Dated: June 9, 2021
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

7

Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005) (citing Beaird v. Seagate Tech., Inc., 145 F.3d
1159, 1164 (10th Cir. 1998)).
8

Id.

9

Id.

2