ASARCO LLC v. NL Industries, Inc. et al

Filing 138

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant/Counterclaimant Delta Asphalt, Inc.'s Motion for Leave to File Memorandum in Opposition to Plaintiff's Supplemental Authority Regarding Summary Judgment Briefing 134 is GRANTED. No further briefing will be allowed. Signed by District Judge John A. Ross on 12/27/12. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ASARCO LLC, a Delaware corporation,
Plaintiff,
vs.
NL INDUSTRIES, INC., et al.,
Defendants.

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Case No. 4:11-CV-00864-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant/Counterclaimant Delta Asphalt, Inc.’s
Motion for Leave to File Memorandum in Opposition to Plaintiff’s Supplemental Authority
Regarding Summary Judgment Briefing. [ECF No. 134] The motion is fully briefed and ready
for disposition.
Background
On December 7, 2012, Asarco filed its Memorandum of Supplemental Authority
Regarding Summary Judgment Briefing (Doc. No. 132) directing the Court’s attention to two
recent decisions issued after briefing was completed for Defendants’ pending summary judgment
motions.1 (Doc. No. 132.) Asarco requested these decisions be considered as supplemental
authority against the judicial estoppel and statute of limitations arguments made by Defendants.
On December 18, 2012, Delta Asphalt filed the instant motion seeking leave to file a
memorandum in opposition.2 Delta Asphalt does not object to Asarco’s submission of

1

ASARCO LLC v. HECLA Mining Co., E.D. of Washington, No. CV-12-0381-LRS
(Order Denying Defendant Callahan’s Motion to Dismiss) and ASARCO LLC v. Atlantic
Richfield Co., et al., D. Montana, No. 12-53-H-DLC (Order Denying Defendant American
Chemet’s Motion to Dismiss).
2

On December 14, 2012, Union Pacific filed its Response to Plaintiff’s Memorandum of
Supplemental Authority. (Doc. No. 133)

supplemental authority provided the Court grants it leave to respond. Asarco opposes Delta
Asphalt’s motion for leave on the grounds that it was not timely filed within seven days under
Local Rule 7-4.01(B).
Discussion
This Court’s Local Rule 7-4.01(C) specifically states that after a memorandum in
opposition to a motion and a reply memorandum have been filed, “additional memoranda may be
filed by either party only with leave of Court.” E.D.Mo. L.R. 7-4.01(C). Plaintiff’s
Memorandum of Supplemental Authority constitutes such an additional memorandum because it
does not simply provide notice of supplemental authority. Instead, it requests the Court consider
the attached orders as supplemental authority against the judicial estoppel and statute of
limitations arguments made by Defendants. Asarco should have filed a motion for leave along
with its proposed notice of supplemental authority. See, e.g., In re Aurora Dairy Corp. Organic
Milk Marketing and Sales Practices Litigation, 2009 WL 1576928, at *4 (E.D.Mo. Jun. 3, 2009),
rev’d on other grounds by In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig.,
621 F.3d 781 (8th Cir. 2010). The Court will nevertheless consider these cases, and ascertain
their relevance to the pending Motions, after granting Delta Asphalt an opportunity to respond.
Accordingly,
IT IS HEREBY ORDERED that Defendant/Counterclaimant Delta Asphalt, Inc.’s
Motion for Leave to File Memorandum in Opposition to Plaintiff’s Supplemental Authority
Regarding Summary Judgment Briefing [134] is GRANTED. No further briefing will be
allowed.

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Dated this 27th day of December, 2012.

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JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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