Carter v. City of Omaha et al

Filing 29

ORDER - that the plaintiff's "Reply to Defendant's Answer and Affirmative Defenses" (filing 28 ) is stricken. Ordered by Judge John M. Gerrard. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KRISTINA M. CARTER,
Plaintiff,

8:16-CV-389

vs.
ORDER
CITY OF OMAHA, a political
subdivision of the State of Nebraska,
et al.,
Defendants.
This matter is before the Court on its own motion, with respect to the
plaintiff's "Reply to Defendant's Answer and Affirmative Defenses" (filing 28).
The filing will be stricken.
Fed. R. Civ. P. 7(a) provides that the only pleadings allowed in federal
court are: "(1) a complaint; (2) an answer to a complaint; (3) an answer to a
counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5)
a third-party complaint; (6) an answer to a third-party complaint; and (7) if
the court orders one, a reply to an answer." The plaintiff's reply is not a
permitted pleading. The defendants' answer (filing 5) does not contain a
counterclaim. So, "a reply was not only not required but was not even
permissible, except by leave or order of the trial court granted in its sound
discretion." Traylor v. Black, Sivalls & Bryson, 189 F.2d 213, 216 (8th Cir.
1951). The Court has not ordered a reply to the defendants' answer, nor is
there any reason to do so.1
1

A substantial reason must be given or necessity must be demonstrated by the movant to

justify the Court ordering a reply to an answer. 5 Charles Alan Wright and Arthur R.
Miller, Federal Practice and Procedure § 1185 (3d ed. 2004).

In addition, the Court notes that even if a reply was permitted, it would
have been due 21 days after service of the answer. Fed. R. Civ. P. 12(a)(1)(B).
The plaintiff's purported reply was filed over 9 months after the defendants'
answer was filed, and there is no justification for its extreme untimeliness.
See Fed. R. Civ. P. 6(b)(1)(B).
In sum, the plaintiff's "reply" is both impermissible and untimely.
Accordingly,
IT IS ORDERED that the plaintiff's "Reply to Defendant's
Answer and Affirmative Defenses" (filing 28) is stricken.
Dated this 25th day of July, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

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