Rose v. Liberty Life Assurance Company of Boston

Filing 33

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay. Plaintiff's motion for leave to file a surreply (DN 25 ) is DENIED. Defendant's motion regarding the standard of review (DN 20 ) stands fully briefed and ripe for review. Surreply tendered by Plainitff is NOT deemed a timely pleading and will NOT be taken into consideration. cc: counsel (JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-28-DJH-CHL

JILL ROSE,

Plaintiff,

v.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,

Defendant.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion of Plaintiff Jill Rose (“Plaintiff”) for leave
to file a surreply (“Motion for Surreply”) (DN 25) in opposition to the motion of Defendant
Liberty Life Assurance Company of Boston (“Defendant”) as to the applicable standard of
review. (DN 20.) Defendant has filed a response in opposition to the Motion for Surreply, and
Plaintiff has filed a reply. (DN 26, 27.) The Motion for Surreply is now ripe for review. For the
following reasons, the Motion for Surreply is DENIED.
Background
Plaintiff asks that the Court grant her leave to file a surreply in opposition to Defendant’s
motion (DN 20) seeking application by the Court of an arbitrary and capricious standard of
review rather than a de novo standard of review. Plaintiff filed a response and Defendant filed a
reply. (DN 22, 24.) Following the filing of Defendant’s reply, the motion regarding standard of
review was considered ripe and was submitted to the District Judge for resolution. (See LR
7.1(g) (“A motion is submitted to the Court for decision after completion of the hearing or oral
argument – or if none – after the reply memorandum is filed, or the time for filing the reply
memorandum has expired.”) Thereafter, Plaintiff filed her Motion for Surreply.

In the Motion for Surreply, Plaintiff argues that Defendant raised an argument for the
first time in its reply regarding standard of review. (DN 24.) Specifically, Plaintiff contends that
prior to filing its reply, Defendant did not argue that in denying Plaintiff’s insurance claims,
Defendant exercised its discretion as plan administrator. Analogizing the situation to a party that
raises an argument for the first time in an appellate brief, Plaintiff argues that a party waives an
issue raised for the first time in a reply brief. She suggests that the proper remedy would be for
the Court to strike the reply (DN 24) or permit her to file her proposed surreply, which she filed
as an attachment to her Motion for Surreply. (DN 25-1.) In its response, Defendant argues that
the Court should deny the Motion for Surreply because (1) Plaintiff attempts to use her proposed
surreply to contradict her own arguments in her complaint; (2) Plaintiff attempts to use the
proposed surreply to raise a new argument and have the last word; and (3) the authority upon
which Plaintiff relies in her proposed surreply is inapposite. (See generally DN 26.) Finally, in
her reply, Plaintiff reiterates her arguments in her Motion for Surreply and requests that the
Court give her “a fair chance to respond” to the new arguments raised by Defendant in its reply.
(DN 27 at 2.)
Discussion
Whether to permit a party to file a surreply is a matter left to the trial court’s discretion.
See Key v. Shelby County, 551 Fed. Appx. 262, 264 (6th Cir. 2014) (citing Eng’g Mfg. Servs.,
LLC v. Ashton, 387 Fed. App’x 575, 583 (6th Cir. 2010); Tanielian v. DaimlerChrysler Corp.,
108 F. App’x 386, 387 (6th Cir. 2004)). “Although the Federal Rules of Civil Procedure do not
expressly permit the filing of surreplies, such filings may be allowed in the appropriate
circumstances, especially ‘[w]hen new submissions and/or arguments are included in a reply
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brief, and a nonmovant’s ability to respond to the new evidence has been vitiated.’” Key, 551
Fed. Appx. at 265 (quoting Seay v. Tenn. Valley Auth., 339 F.3d 454, 481 (6th Cir. 2003)). “As
many courts have noted, ‘[s]ur-replies . . . are highly disfavored, as they usually are a strategic
effort by the nonmoving party to have the last word on a matter.’” Liberty Legal Found. V. Nat’l
Democratic Party of the USA, 875 F. Supp. 2d 791, 797 (W.D. Tenn. 2012) (quoting In re Enron
Corp. Secs., 465 F. Supp. 2d 687, 691 n.4 (S.D. Tex. 2006)) (additional citation omitted). “The
Sixth Circuit has held that a district court does not abuse its discretion in denying leave to file a
sur-reply where the opposing party’s reply did not raise any new legal arguments or introduce
new evidence.” Id.; see, e.g., Key, 551 Fed. Appx. at 265 (holding that district court’s denial of
motion to file sur-reply was not abuse of discretion due to lack of new arguments raised in reply
and six-month delay between filing of reply and motion for sur-reply).
In this case, the timing of the Motion for Surreply does not trouble the Court. As
Plaintiff filed the Motion for Surreply, with her proposed surreply attached thereto, shortly after
the motion regarding standard of review became ripe, the filing of the Motion for Surreply did
not create any delay for Defendant or the Court. (See DN 24 (reply regarding standard of review
filed July 16, 2015); DN 25 (Motion for Surreply filed July 31, 2015).) More significantly,
however, the Court disagrees with Plaintiff’s characterization of Defendant’s reply regarding the
standard of review as raising new arguments. In the Court’s view, Defendant’s reply actually
responds to arguments raised in Plaintiff’s response, which is in keeping with the nature and
purpose of a response. Specifically, in her response, Plaintiff argues that Defendant cannot meet
its purported burden of proving that it – or an authorized person affiliated with it – actually
exercised discretion in relation to Plaintiff’s insurance claims. (DN 22 at 13.) In its reply,
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Defendant responds to this argument. (DN 24 at 14-15.) “The Court finds that this argument is
not a new argument but rather a counterpoint in response to Plaintiff[’s] theory” regarding the
exercise of discretion by a plan administrator. Liberty Legal Found, 875 F. Supp. 2d at 797.
“This is entirely consistent with the proper purpose of a reply brief, to address the opposing
party’s arguments raised in a reply brief.” Id. at 797-98. The Court finds that Plaintiff’s request
for leave to file a surreply is merely an attempt to have the last word on this issue. This is
“precisely the reason that sur-replies are so thoroughly disfavored[.]” Id. at 798.

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for leave to file a
surreply (DN 25) is DENIED.
IT IS FURTHER ORDERED that Defendant’s motion regarding the standard of review
(DN 20) stands fully briefed and ripe for review. The surreply tendered by Plaintiff (DN 25-1) is
NOT deemed a timely pleading and will NOT be taken into consideration in opposition to
Defendant’s motion regarding the standard of review.
October 16, 2015

Colin Lindsay, MagistrateJudge
United States District Court

cc: Counsel of record

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