Reedy v. Rich Transport, LLC et al

Filing 18

ORDER granting 15 plaintiff's Motion for leave to file a sur-reply (by 4/27/16) Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TERRY REEDY,
Plaintiff,
Case No. 15-11401
vs.
HON. GEORGE CARAM STEEH
RICH TRANSPORT, LLC, et al,
Defendants.
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ORDER GRANTING PLAINTIFF’S MOTION
FOR LEAVE TO FILE SUR-REPLY (DOC. 18)
This matter came before the court on Plaintiff’s motion for leave to file a sur-reply
to Defendants’ motion for partial summary judgment. On December 2, 2015,
Defendants filed a motion for partial summary judgment as to two claims brought by
Plaintiff. Plaintiff filed a response to that motion on January 4, 2016. Defendants then
filed a reply on January 25, 2016. On January 27, 2016 Plaintiff filed the motion for
leave to file a sur-reply, which is before the court now.
Plaintiff argues that Defendants raised new arguments in their reply brief that
should be dismissed. Specifically, Plaintiff argues that Defendants’ reply brief included
new arguments as to both Plaintiff’s marital discrimination claim and Plaintiff’s WDCA
retaliation claim. This court finds that Defendants did not raise new arguments;
however, in order to ensure a complete record, the court will allow plaintiff to file a surreply as to the arguments.
Legal Standard
The decision whether or not to grant a sur-reply is within the court’s discretion.
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Mirando v. U.S. Dep’t of Treasury, 766 F.3d 540, 549 (6th Cir. 2014). The court may, in
its discretion, grant a sur-reply “for the benefit of a more fully developed record.”
Findling v. Int’l Transmission Co., 2006 WL 1663296 (E.D. Mich. June 15, 2006). See
also United States v. Gordon, 2012 WL 3134344 (E.D. Mich. Aug. 1, 2012) (recognizing
that sur-replies may be granted to “ensure a complete record”).
A. Marital Discrimination Claim:
Plaintiff points to three allegedly new arguments regarding Plaintiff’s marital
discrimination claim raised by Defendants in their reply: 1) Plaintiff cannot establish the
first element of his prima facie case, that plaintiff is part of a protected class, 2)
Plaintiff’s claim fails because it is allegedly premised on a “perceived” characteristic, and
3) Plaintiff allegedly cannot establish pretext under the McDonnell Douglas framework.
As to the first argument, the court finds that this is in fact not a new argument.
Defendants cite to language in their motion for partial summary judgment that the Court
agrees is dispositive on this matter. Specifically, Defendants’ motion reads: “Plaintiff
cannot meet the first element of prima facie claim of marital status, which is that he is a
member of a protected class.” (Doc. 11, Pg ID 308). Plaintiff argues that this should be
disregarded because the next sentence in Defendant’s motion reads: “Although
technically every person in the state of Michigan falls under the ‘protected class’ for
marital status discrimination purposes . . . .” (Id.). However, this is not a concession
from Defendants that the first element is satisfied. It merely implies that discrimination
based on marital status can affect both single and married individuals. With that in mind,
context, coupled with the above cited passage, makes it clear that Defendants have
already raised this argument, and it should not be waived. The court, does, however,
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recognize Plaintiff’s confusion, and the court concludes that a sur-reply would be useful
to more fully develop the record. Plaintiff’s motion to file a sur-reply as to this argument
is GRANTED.
As to the second argument regarding marital discrimination, the court agrees with
Defendants that this is not a new argument. Plaintiff’s response to Defendants’ motion
relies on testimony from Plaintiff’s co-workers, Mr. Arce and Ms. Chandler, to insinuate
that, even if he was not technically divorced, his co-workers understood him to be a
single parent. (Doc. 13, Pg ID 327). This was not an argument previously advanced by
Plaintiff. So, Defendants were justified in replying to these responses from Plaintiff. This
is not a new argument. However, the court again recognizes the value of providing a
complete record, and Plaintiff’s motion to file a sur-reply as to this argument is,
therefore, GRANTED.
Finally, the court agrees with Defendants that the third argument regarding
marital discrimination is not in fact a new argument. Plaintiff claims that because
Defendants did not discuss pretext under the McDonnell Douglas framework, the
Defendants are precluded from discussing it now. In their motion for partial summary
judgment, it would be unreasonable to require Defendants to include a discussion of
pretext when Plaintiffs had not yet raised that argument. This is not a new argument
asserted by Defendants; it is an appropriate reply to Plaintiff’s response. Plaintiff, in his
response to Defendants’ motion for partial summary judgment, already argued that
pretext can be established. (Doc. 13, Pg ID 28-29). However, if Plaintiff wishes to
provide additional argument within the narrow page limit set forth by the court for a surreply, Plaintiff may do so. Plaintiff’s motion to file a sur-reply as to this argument is
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GRANTED.
B. WDCA Retaliation Claim:
Plaintiff alleges that Defendants’ arguments attacking the WDCA retaliation claim
were first raised in Defendants’ reply and constitute new arguments that should,
therefore, be deemed waived. Defendants, in their motion for partial summary judgment,
put forth a one-sentence argument discussing Plaintiff’s WDCA retaliation claim:
“Plaintiff’s retaliatory discharge claim must fail because he cannot offer a shred of
evidence to establish retaliation.” (Doc. 10, Pg ID 100). Then, in reply to Plaintiff’s
response, Defendants asserted several specific arguments, which Plaintiff claims are
new. Defendants, on the other hand, argue that before Plaintiff’s response, it was “very
unclear to Defendants the basis for this claim.” (Doc. 16, Pg ID 545). In addition
Defendants insist that these arguments are not new; rather they are “one in the same”
with the original one-sentence argument. (Id.). The court finds these not to be new
arguments; however, in the interest of providing a complete record, Plaintiff’s motion to
file a sur-reply as to this argument is GRANTED.
IT IS ORDERED that Plaintiffs may file a sur-reply as to Defendants’ arguments
addressed herein. Plaintiff should limit his sur-reply to 7 pages due on or before April
27, 2016.
Dated: April 20, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 20, 2016, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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