Sundbeck et al v. Sundbeck
Filing
188
ORDER granting in part and denying in part 179 Motion to Strike. Signed by District Judge Sharion Aycock on 9/12/2011. (kmc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
DANIEL M. SUNDBECK AND
LUCY SUNDBECK
PLAINTIFFS
V.
CAUSE NO. 1:10cv23
MILTON O. SUNDBECK, JR.
DEFENDANT
ORDER
Presently before the Court is Defendant’s Motion to Strike Both Rebuttal in Support of
Plaintiffs’ Motion for Partial Summary Judgment and Plaintiffs’ Corrected Motion for Partial
Summary Judgment [179]. After reviewing the motion and response, the Court grants in part
and denies in part Defendant’s motion.
In regards to Plaintiffs’ Rebuttal in Support of Plaintiffs’ Motion for Partial Summary
Judgment, Defendant contends that this is an attempt to make a new record on the motion for
partial summary judgment by attaching to such rebuttal previously undesignated documents and
portions of depositions. On the other hand, the Plaintiffs’ assert that all of the issues raised in
the Plaintiffs’ rebuttal were raised in their initial motion, except for the issues of whether the
Plaintiffs ratified some of the Defendant’s actions. Plaintiffs state that because the issue of
ratification was raised in Defendant’s response to the Plaintiffs’ motion, that rebuttal concerning
the ratification issues was appropriate.
In regards to Plaintiffs’ Corrected Motion for Partial Summary Judgment, Defendant
contends that Plaintiffs attempt to correct errors in its original motion by adding, without
authority of Court, additional depositions and excerpts from Defendant’s depositions.
Essentially, Defendant contends that the corrected motion makes substantive changes. In
contrast, the Plaintiffs assert that the corrections made in the corrected motion merely supplied
the Court with the correct citations to the pages in the Defendant’s deposition which were quoted
and referenced in the original motion. Plaintiffs declare that the corrections do not alter, or add
to, the issues or materials originally presented to the Court. Additionally, Plaintiffs allege that the
omissions from the original motion occurred “inadvertently . . . in the process of converting the
unredacted version of the Memorandum to the redacted version which was filed with the Court.”
While the Defendant is requesting that the Court strike Plaintiffs’ rebuttal and corrected
motion, the Court finds that such a measure is unnecessary.1 Any additional and/or new evidence
that the Defendant contends has been put into the record by such documents can be addressed by
the Defendant in a surrebuttal brief. Thus, the Court grants in part and denies in part the
Defendant’s motion. The motion to strike is denied. However, the motion to alternatively file a
surrebuttal brief is granted. The Defendant has seven (7) days from the date of this Order, or
until September 19, 2011, to file a surrebuttal brief.
1
In a footnote, the Defendant also asserts as follows: “The court recently entered an order
requesting that plaintiffs’ counsel clarify their intentions with respect to a second issue of
indemnification which the motion failed to define with particularity. ECF 183. The court has
been most generous in its accommodation of plaintiffs’ counsel.” Perhaps the Defendant
misread, or misunderstands, the Court’s previous Order. In an attempt to clarify, the Court has
not requested that the Plaintiffs’ clarify what claims they are moving for summary judgment on.
In the Court’s Order, the Court stated, “the Court declines to make arguments for the Plaintiffs
that are not actually raised in the summary judgment motion.” The Court’s Order “requested”
supplemental briefing on an issue the Court plans on addressing that neither party has addressed
thus far. Again, to be clear, the Court did not request supplemental briefing on what claims the
Plaintiffs are moving for summary judgment.
SO ORDERED on this, the __12th____ day of September, 2011.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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