Wood et al v. North Mississippi Medical Center, Inc. et al

Filing 238

ORDER sua sponte granting Plaintiffs' leave to file a sur-reply in response to Alliance Collection Services, Inc.'s argument regarding 15 U.S.C. § 1692g(b), which was briefed for the first time in Alliance's Reply 237 in support of its Motion to Dismiss. Plaintiffs' sur-reply is due by 9/8/2023. Signed by District Judge Taylor B McNeel on 8/31/2023. (kb)

Case: 1:20-cv-00042-TBM-RP Doc #: 238 Filed: 08/31/23 1 of 2 PageID #: 4379

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
STANLEY WOOD and CHASTITY
WOOD, Individually, and on Behalf of
a Class of Similarly Situated Persons
v.

PLAINTIFFS

CIVIL ACTION NO. 1:20-cv-42-TBM-RP

NORTH MISSISSIPPI HEALTH
SERVICES, INC. et al.

DEFENDANTS

ORDER GRANTING PLAINTIFFS LEAVE TO FILE A SUR-REPLY
Before the Court is Alliance Collection Service, Inc.’s Motion [221] to Dismiss or for
Summary Judgment, which is fully briefed. Despite moving to dismiss all of the Plaintiffs’ Fair
Debt Collection Act Practices claims in its Motion and accompanying Memorandum [222],
Alliance briefed for the first time in its Reply [237] its argument that the Plaintiffs’ Fair Debt
Collection Practices Act claim pursuant to 15 U.S.C. § 1692g(b) must be dismissed. [237], pg. 14.
Ordinarily, the Court need not consider arguments raised for the first time in a reply brief.
Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010) (“Arguments raised for the first time in a reply
brief are generally waived.”). This is because consideration of such arguments risks prejudicing
the non-moving party. McDaniel v. Miss. Baptist Med. Ctr., 869 F. Supp. 445, 453 (S.D. Miss. 1994)
(“In the interest of fairness, Defendant should not be allowed to raise new grounds for the first
time in its rebuttal to which Plaintiff will not have the opportunity to provide an adequate
response.”).
To alleviate this fairness concern, courts “may grant leave to file a surreply in order to
afford the nonmovant an opportunity to respond.” Zurich American Ins. Co. v. Centex Corp., 373 F.
Supp. 3d 692, 696 (N.D. Tex. 2016); see also Mission Toxicology, LLC v. Unitedhealthcare Ins. Co.,

Case: 1:20-cv-00042-TBM-RP Doc #: 238 Filed: 08/31/23 2 of 2 PageID #: 4380

499 F. Supp. 3d 350, 359 (W.D. Tex. 2020) (explaining that granting leave to file a sur-reply “is a
viable alternative to the general practice to summarily deny or exclude all arguments and issues
first raised in reply briefs.”) (quotation omitted); Thompson v. Dallas City Att’y’s Off., 913 F.3d
464, 471 (5th Cir. 2019) (“A district court does not abuse its discretion when it considers an
argument raised for the first time in a reply brief so long as it gives the non-movant an adequate
opportunity to respond prior to a ruling.”) (quotation omitted).
Because Alliance raises this new argument in its Reply [237], in the interest of fairness, the
Plaintiffs are granted leave to file a sur-reply. The Plaintiffs are cautioned that their sur-reply must
be limited solely to addressing why their Fair Debt Collection Practices Act claim pursuant to 15
U.S.C. § 1692g(b) should not be dismissed. Briefing is closed on all other issues.
IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiffs are granted leave
to file a sur-reply, limited solely to their 15 U.S.C. § 1692g(b) claim, on or before September 8,
2023.
This, the 31th day of August, 2023.
___________________________
TAYLOR B. McNEEL
UNITED STATES DISTRICT JUDGE

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