Turner v. McDonald et al

Filing 74

ORDER GRANTING IN PART Pltf's 69 MOTION for Leave to File Surreply in opposition to Defts' 42 Motion for Summary Judgment, Surreply to be filed within 10 days of this Order; GRANTING IN PART Pltf's [7 0] Consent MOTION to Change out PDF Files of Exhibits to Pltf's Brief in Opposition to Deft's Motion for Summary Judgment, and Pltf DIRECTED to file a complete and corrected set of the exhibits within 10 days of this Order; GRANTING Pltf� 39;s 71 Consent MOTION to File [68-1] Document Under Seal, and document to remain sealed until further Order of the Court. (See Order for further details.) (Surreply, and Complete and Corrected set of Exhibits, as ordered, due by 8/22/2019.) Signed by Magistrate Judge W. Carleton Metcalf on 8/09/2019. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17 CV 334
GEOFFREY TURNER,
Plaintiff,
v.
LOWELL S. GRIFFIN, in his
official capacity as Sheriff of
Henderson County, and OHIO
CASUALTY INSURANCE
COMPANY, in its capacity as
Surety on the Official Bond
of the Sheriff of Henderson County,
Defendants.

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ORDER

This matter is before the Court on the following motions:
 Plaintiff’s Motion for Leave to File Surreply to Defendants’
Reply to Plaintiff’s Response to Defendants’ Motion for
Summary Judgment (Doc. 69);
 Plaintiff’s Motion for Leave to Change out the PDF files of
Exhibits to Plaintiff’s Brief in Opposition to Defendant’s Motion
for Summary Judgment (Doc. 70); and
 Plaintiff’s Consent Motion to File Document Under Seal (Doc.
71).

I.

Relevant Procedural Background
On October 30, 2018, Plaintiff filed an Amended Complaint (Doc. 10).
On May 1, 2019, Defendants filed a Motion for Summary Judgment (Doc.

42) and Brief in Support (Doc. 43).
Following numerous extensions, on July 15, 2019, Plaintiff filed a
response in opposition (Doc. 58).
Defendants replied on July 22, 2019 (Doc. 64).
II.

Discussion and Orders
A.

Plaintiff’s Motion for Leave to File Surreply (Doc. 69)

Through this Motion, Plaintiff requests permission to file a 10-page
surreply as part of his opposition to Defendants’ Motion for Summary
Judgment.

This Motion, like this case in general, is hotly contested;

Defendants filed a response in opposition (Doc. 72), and Plaintiff replied (Doc.
73).
Local Civil Rule 7.1 does not anticipate or allow the filing of surreplies
except with leave of court. LCvR 7.1(e). In general, courts permit a party to
file a surreply “only when fairness dictates based on new arguments raised in
the previous reply.” DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C.
2010); see LCvR 7.1(e) (“A reply brief should be limited to a discussion of
matters newly raised in the response.”).

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Here, Plaintiff argues that Defendants have raised new facts, cited new
testimony and exhibits, and made new legal arguments in their reply brief,
thereby unfairly depriving Plaintiff of the opportunity to respond to these
points.
The order and format of the parties’ arguments in their summary
judgment briefing often do not track with Plaintiff’s claims as they appear in
the Amended Complaint, or even with an opposing party’s brief. While the
parties, of course, are free to present their arguments as they deem
appropriate, the format of the presentations, as well as the parties’ articulation
of the applicable legal principles, makes a strict comparison of the arguments
difficult.
Having reviewed the parties’ summary judgment briefing, the
undersigned does not conclude that Defendants have raised new facts, cited
new testimony and exhibits, and made new legal arguments to the extent
alleged by Plaintiff. Nonetheless, in the interest of justice, and particularly in
view of what appear to be conflicting views regarding the applicable legal
principles, Plaintiff will be allowed leave to file a short surreply.
Accordingly, Plaintiff’s Motion for Leave to File Surreply (Doc. 69) is
GRANTED IN PART and Plaintiff is given leave to file a surreply in opposition
to Defendants’ Motion for Summary Judgment. The surreply may not exceed

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five (5) pages in length and shall be filed within 10 days of the entry of this
Order.
B.

Plaintiff’s Motion for Leave to Change out the PDF files of Exhibits
to Plaintiff’s Brief in Opposition to Defendant’s Motion for
Summary Judgment (Doc. 70)

As noted, Plaintiff responded to Defendants’ Motion for Summary
Judgment on July 15, 2019. In connection with his response, Plaintiff filed
numerous exhibits (Docs. 59, 60).
On July 23, 2019, Plaintiff filed the Affidavit of Kelly Lynn Weaver (Doc.
65). Ms. Weaver’s specific position is not identified in the affidavit, but it
appears that she may be employed by Plaintiff’s counsel. Ms. Weaver’s affidavit
describes certain errors and omissions with respect to the Affidavit of Plaintiff,
which had been submitted as one of his exhibits.
The next day, Plaintiff filed the Second Affidavit of Kelly Lynn Weaver,
which described additional errors that had been discovered with other exhibits.
(Doc. 68).
Plaintiff now requests leave to “change out” the exhibits, or parts thereof,
that contain errors. (Doc. 70).
However, rather than attempting to substitute exhibits or parts of them,
and potentially create further confusion on the docket, the undersigned finds
that the better approach is for Plaintiff to file a new complete and accurate set
of his exhibits.
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Accordingly, Plaintiff’s Motion for Leave to Change Out the PDF Files of
Exhibits to Plaintiff’s Brief in Opposition to Defendant’s Motion for Summary
Judgment (Doc. 70) is GRANTED IN PART and Plaintiff is DIRECTED to file,
within ten (10) days of the entry of this Order, a complete and corrected set of
the exhibits he offers in connection with his opposition to Defendants’ Motion
for Summary Judgment.
C.

Plaintiff’s Consent Motion to File Document Under Seal (Doc. 71)

Plaintiff seeks an order sealing Exhibit A (Doc. 68-1) of the Second
Affidavit of Kelly Lynn Weaver (Doc. 68) as that document contains personnel
documents and information about current and former employees of the
Henderson County Sheriff’s Office. Pl.’s Mot. (Doc. 71) at 1. Defendants’
counsel has consented to the requested relief. Id.
The Court has considered the Motion, the public’s interest in access to
the subject materials, and alternatives to sealing. The Court determines that
sealing is necessary in this case, and that less restrictive means of handling
the information are not sufficient, as the subject filing consists of confidential
personnel documents and information. The sealing ordered herein shall be
permanent, subject to further Order of the Court.

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Accordingly, Plaintiff’s Consent Motion to File Document Under Seal
(Doc. 71) is GRANTED, and document number 68-1 shall be SEALED and
remain sealed until further Order of the Court.
It is so Ordered.
Signed: August 9, 2019

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