Rainbow School, Inc. v. Rainbow Early Education Holding LLC
Filing
48
ORDER granting in part and denying in part 40 Motion to Strike. Defendant's motion is DENIED as to the request to strike, but GRANTED as to the request for leave to file a sur-reply. Signed by District Judge Terrence W. Boyle on 4/7/2015. (Marsh, K)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:14-CV-482-BO
RAINBOW SCHOOL, INC.,
Plaintiff,
V.
RAINBOW EARLY EDUCATION
HOLDING LLC and REE SOUTHEAST, INC.
Defendants.
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ORDER
This matter is before the Court on defendant's motion to strike and, in the alternative,
motion for leave to file a sur-reply. [DE 40]. Defendant's motion is GRANTED IN PART and
DENIED IN PART.
Defendant argues that plaintiff used its reply memorandum [DE 36] to submit
declarations containing new assertions in violation of Rule 6(d) of the Federal Rules of Civil
Procedure. Rule 6(d) requires that "[a]ny affidavit supporting a motion must be served with the
motion." Rule 6(d), however, is silent on when reply affidavits must be filed. Because the
contested affidavits in the case at bar do not support plaintiffs motion, but rather the reply, the
Court finds that Rule 6(d) does not prohibit them from being filed as reply affidavits.
The purpose of Rule 6(d), however, is to prevent unfair surprise via last minute filings.
Orsi v. Kirkwood, 999 F.2d 86 (4th Cir. 1993). In order to ensure that there is no appearance of
surprise, therefore, the Court will allow defendant's sur-reply and attendant declarations. [DE
40, ex. 1].
Accordingly, defendant's motion is DENIED as to the request to strike, but GRANTED
as to the request for leave to file a sur-reply.
SO ORDERED, this the
__1_ day of April, 2015.
T RRENCE W. BOYLE
UNITED STATES DISTRICT J
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