Raimey v. City of Niles et al

Filing 54

Opinion and Order for the reasons set forth herein, plaintiff's motion to strike is DENIED, and plaintiff's alternative motion for leave to file a sur-reply is GRANTED. (Doc. No. 48.) Judge Sara Lioi on 1/7/2022. (E,CK)

Case: 4:20-cv-00005-SL Doc #: 54 Filed: 01/07/22 1 of 3. PageID #: 541

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TIMOTHY A. RAIMEY, as Administrator
of the Estate of Matthew Burroughs,

PLAINTIFF,
vs.
THE CITY OF NILES, et al.,

DEFENDANTS.

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CASE NO. 4:20-cv-5

JUDGE SARA LIOI

OPINION AND ORDER

Plaintiff, Timothy A. Raimey, has filed a motion styled “Plaintiff’s Motion to Strike, or in
the Alternative, for Leave to File a Sur-reply,” requesting that the Court either strike the reply of
defendants, City of Niles, Christopher Mannella, James Reppy, Paul Hogan, and Jay Holland, in
support of their motion for summary judgment or permit plaintiff to file a sur-reply. (Doc. No. 48;
see Doc. No. 47 (Reply in Support of Summary Judgment).) Defendants oppose the motion to
strike (Doc. No. 49), and plaintiff has filed a reply. (Doc. No. 50.)
According to plaintiff, defendants’ reply brief in support of summary judgment raises
arguments not mentioned in their original dispositive motion. He points to the fact that defendants
argued for the first time in their reply brief that plaintiff could not rely on the report and
corresponding forensic animation/recreation of his expert, Jason Fries, to defend summary

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judgment.1 (Doc. No. 48 at 4; see Doc. No. 47 at 8–11.) Citing to Sixth Circuit authority stating
that the assertion of new evidence or arguments for the first time in a reply brief unfairly deprives
the opposing party of notice and the opportunity to respond, he requests that the Court strike the
reply brief or, in the alternative, grant him leave to file a sur-reply. (Doc. No. 48 at 5 (citing cases).)
Defendants have filed an opposition in which they posit that the arguments made in their
reply were properly made in response to the arguments and evidence that plaintiff raised in his
opposition. They also repeat the arguments raised in their reply relative to the proper focus of the
Court’s review of the underlying summary judgment motion and the question of qualified
immunity. (See generally Doc. No. 49.)
While it is well-established that a party cannot raise new arguments in a reply brief, it is
equally settled that a party may respond in a reply to arguments raised for the first time in
opposition to a motion. See In re: Firstenergy Corp. Sec. Litig., 316 F. Supp. 2d 581, 599 (6th Cir.
2004) (citing United States v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002) (“It is well-established
that a party cannot raise new issues in a reply brief; he can only respond to arguments raised for
the first time in the opposition.”)); see United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001)
(similar). Here, it was plaintiff who first injected Dr. Fries’ report and opinions into the summary
judgment analysis in his opposition. Defendants were justified in challenging the appropriateness
of that evidence in their reply brief, and plaintiff’s motion to strike, therefore, is DENIED.

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Specifically, in their reply, defendants argue that the expert report of Dr. Fries should be disregarded because the
report is based on presumptions and not actual facts. (Doc. No. 47 at 8.) They insist that the report does not provide
any information regarding the scientific methodology that was used in creating the 3D animation, and further that the
computer model fails to take into account the “circumstances [and] environment under which Officer Mannella was
operating at the time” of the shooting. (Id. at 9.) Because videotape footage exists of the shooting, defendants insist
that the Court’s consideration of summary judgment—particularly as it pertains to the question of qualified
immunity—should be limited to the video and what defendants refer to as the “objective facts found in the record.”
(Id. at 11.)
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Case: 4:20-cv-00005-SL Doc #: 54 Filed: 01/07/22 3 of 3. PageID #: 543

However, given the sequence of events, the Court also believes that fairness dictates that
plaintiff be allowed to respond to defendants’ arguments challenging the reliance on Dr. Fries’
report on summary judgment and, particularly, on the issue of qualified immunity. Accordingly,
plaintiff will be granted leave until January 19, 2022 to file a sur-reply, not to exceed seven (7)
pages, addressing this limited issue. No extensions will be granted, and, after the sur-reply is filed,
the Court will consider the briefing on summary judgment complete.
For the foregoing reasons, plaintiff’s motion to strike is DENIED, and plaintiff’s
alternative motion for leave to file a sur-reply is GRANTED.
IT IS SO ORDERED.

Dated: January 7, 2022
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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