Schauer v. BNSF Railway Company

Filing 64

MEMORANDUM AND ORDER regarding motions. IT IS ORDERED that: Defendant's motion to strike (filing 62 ) is denied. Plaintiff's motion for leave to file a reply brief (filing 63 ) is granted instanter, as follows: Plaintiff's filed repl y brief (filing 58 ) will be considered by the court in support of Plaintiff's motion to compel discovery; and Defendant may, but is not required to, file a surreply brief on or before November 10, 2008. Ordered by Judge Richard G. Kopf. (LKL)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

DAVID L. SCHAUER, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant.

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4:07CV3282 MEMORANDUM AND ORDER

On October 7, 2008, Plaintiff filed a motion to compel discovery (filing 52). No brief was filed in support of the motion, but Plaintiff's counsel attached a supporting affidavit to the motion, together with copies of correspondence and discovery documents. On October 21, 2008, Defendant filed a 12-page opposing brief (filing 56). Among other things, Defendant argued that the motion to compel should be deemed abandoned for Plaintiff's failure to file a supporting brief. See NECivR 7.1(a)(1)(B) ("A party need not file a brief if the motion raises no substantial issue of law and relief is within the court's discretion. . . . Should the court conclude that the motion raises a substantial issue of law, however, it may treat a party's failure to file a brief as an abandonment of the motion."). Plaintiff filed a reply brief on October 28, 2008 (filing 58). Later that same day, Defendant filed a motion to strike the reply brief (filing 62) because it was filed without leave of court. In response, on October 29, 2008, Plaintiff filed a motion requesting leave to file a reply brief (filing 63). Under our local rules, "[i]f the moving party has not filed an initial brief, it may not file a reply brief without the court's leave." NECivR 7.1(c). Although Plaintiff violated this rule, Defendant does not appear to have been prejudiced by the filing, which was made within the time period prescribed by our local rules. See id. Plaintiff has previously indicated that the requested discovery is necessary in order

for him to respond to Defendant's pending motion for summary judgment, and I have granted him a continuance pursuant to Federal Rule of Civil Procedure 56(f). See Order entered October 14, 2008 (filing 55). I therefore will consider the filed reply brief, but will allow Defendant to file a surreply brief if it so desires. Accordingly, IT IS ORDERED that: 1. 2. Defendant's motion to strike (filing 62) is denied. Plaintiff's motion for leave to file a reply brief (filing 63) is granted instanter, as follows: a. Plaintiff's filed reply brief (filing 58) will be considered by the court in support of Plaintiff's motion to compel discovery; and Defendant may, but is not required to, file a surreply brief on or before November 10, 2008. BY THE COURT: s/ Richard G. Kopf United States District Judge

b.

October 30, 2008.

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