Midwest Feeders, Inc. v. The Bank of Franklin

Filing 26

ORDER granting in part and denying in part 21 Motion to respond; granting in part and denying in part 22 Motion to Strike Signed by Honorable David C. Bramlette, III on 1/21/2015 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
MIDWEST FEEDERS, INC.
VS.

PLAINTIFF
CIVIL ACTION NO. 5:14-cv-78(DCB)(MTP)

THE BANK OF FRANKLIN

DEFENDANT
ORDER

This cause is before the Court on the plaintiff Midwest
Feeders, Inc. (“Midwest”)’s motion (docket entry 21) to respond to
defendant The Bank of Franklin (“BOF”)’s request for relief in
footnote 1 of defendant’s rebuttal memorandum in support of its
motion to dismiss; and on Midwest’s motion (docket entry 22) to
strike, or in the alternative, respond to arguments and facts first
raised in BOF’s rebuttal memorandum in support of its motion to
dismiss.

Having carefully considered the motions and responses,

the memoranda of the parties and the applicable law, and being
fully advised in the premises, the Court finds as follows:
Both of the plaintiff’s motions seek to strike certain matters
from the defendant’s rebuttal memorandum in support of its motion
to dismiss.

In the alternative, the plaintiff requests leave to

respond to the arguments it claims were raised for the first time
in the rebuttal memorandum.

“Arguments raised for the first time

in a reply brief are generally waived,” Jones v. Cain, 600 F.3d
527, 541 (5th Cir. 2010), and may be stricken by the court.

See S.

Lavon Evans, Jr. Drilling Venture, LLC v. Laredo Energy Holdings,

LLC, 2011 WL 1104150, at *1 (S.D. Miss. Mar. 23, 2011).

In the

alternative, “a sur-reply is appropriate when the movant’s rebuttal
raises new legal theories or attempts to present new evidence at
the reply or rebuttal stage.”

Elwood v. Cobra Collection Agency,

2006 WL 3694594, at *7 (S.D. Miss. Dec. 14, 2006)(citing Murray v.
TXU Corp., 2005 WL 1313412, at *4 (N.D. Tex. May 27, 2005).
BOF contends that its rebuttal memorandum directly addresses
the facts and arguments presented by Midwest in its responsive
brief, and that any new matters were in direct response to issues
raised in Midwest’s brief.

The Court agrees with BOF that no

portions of the rebuttal brief should be stricken; however, the
Court shall allow Midwest to file sur-rebuttal briefs.
Midwest’s proposed Memorandum Brief in Response to BOF’s
Request for Relief in Footnote 1 of BOF’s Rebuttal Memorandum is
attached as Exhibit 1 to Midwest’s motion (docket entry 21).
Midwest’s proposed Sur-Reply Memorandum in Opposition to BOF’s
Motion to Dismiss is also attached as Exhibit 1 to its motion
(docket entry 22). Since Midwest’s sur-reply briefs already appear
of record, they shall be deemed filed as of the day of this Order.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff Midwest Feeders,
Inc.’s motion (docket entry 21) to respond to defendant The Bank of
Franklin (“BOF”)’s request for relief in footnote 1 of defendant’s
rebuttal memorandum in support of its motion to dismiss is GRANTED

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IN PART AND DENIED IN PART: denied as to the request to strike, and
granted as to the request for leave to file a sur-reply;
FURTHER ORDERED that the plaintiff Midwest Feeders, Inc.’s
motion (docket entry 21) to strike, or in the alternative, respond
to arguments and facts first raised in BOF’s rebuttal memorandum in
support of its motion to dismiss is GRANTED IN PART AND DENIED IN
PART: denied as to the request to strike, and granted as to the
request for leave to file a sur-reply;
FURTHER ORDERED that Midwest Feeders, Inc.’s sur-reply briefs
are deemed filed as of the date of this Order.
SO ORDERED, this the 21st day of January, 2015.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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