Thomas v. Oklahoma Land Holdings LLC et al

Filing 142

ORDER denying 117 Defendant's Motion to Strike Sur-Reply to Defendants' Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 7/24/19. (kmt)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
OKLAHOMA LAND HOLDINGS, LLC,
Plaintiff,
v.
BMR II, LLC and ANDREW
M. ASHBY,
Defendants.

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Case No. 5:17-CV-01036-D

ORDER
Before the Court is Defendants’ Motion to Strike Plaintiff’s Sur-Reply to
Defendants’ Motion for Summary Judgment [Doc. No. 117]. Plaintiff has responded [Doc.
No. 124] and Defendants have replied [Doc. No. 141]. The matter is fully briefed and at
issue.
BACKGROUND
On May 6, 2019, Defendants filed their Motion for Summary Judgment [Doc. No.
76]. Plaintiff responded [Doc. No. 89] and Defendants replied [Doc. No. 111]. Plaintiff
then filed a Motion for Leave to File Sur-Reply [Doc. No. 112] indicating that the Motion
for Leave was unopposed. The Court granted the Motion on June 20, 2019 [Doc. No. 115]
and Plaintiff filed its sur-reply [Doc. No. 116] on June 21, 2019.
Defendants informed Plaintiff that the Motion for Leave was not unopposed on June
17, 2019. Motion to Strike at 2. However, Defendants failed to file any opposition to the

Motion for Leave.1 Instead, Defendants filed a Motion to Strike Plaintiff’s Sur-Reply
[Doc. No. 117] on June 25, 2019. Plaintiff responded [Doc. No. 124] on July 16, 2019 and
Defendants replied [Doc. No. 141] on July 22, 2019.
DISCUSSION
Defendants assert that: (1) contrary to Plaintiff’s representation, the Motion for
Leave to File Sur-Reply [Doc. No. 112] was not unopposed; and, (2) Plaintiff’s Sur-Reply
“violates the well-recognized rule that the movant should have the first and last opportunity
to speak on the issue raised and that sur-replies are an exception, to be used sparingly and
only when necessary to address new grounds in support of a motion raised for the first time
in a reply brief.”

Motion to Strike at 3.

In response, Plaintiff argues that the

mischaracterization of its Motion for Leave as “unopposed” was inadvertent and asserts a
sur-reply is proper when a party attaches new exhibits to a reply. Response to Motion to
Strike at 2, 7.
Because Defendants failed to inform the Court that the Motion for Leave was not
“unopposed” until seven days after the Motion for Leave was filed and five (5) days after
the Court issued its Order [Doc. No. 115] granting the Motion, the Court declines to strike
the Sur-Reply on that basis.
Regarding Defendant’s contention that the Sur-Reply does not address new material
presented for the first time in the Reply, the Court will consider the Sur-Reply within the

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Although Plaintiff states that Defendants informed the Court of their opposition to the
Motion for Leave on June 17, 2019, there is no such notice in the record. Response at 23.
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confines of the Tenth Circuit’s directives regarding such filings. The rule in the Tenth
Circuit is clear: “[a]n issue or argument insufficiently raised in a party's opening brief is
deemed waived.” SCO Grp., Inc. v. Novell, Inc., 578 F.3d 1201, 1226 (10th Cir. 2009)
(citing Headrick v. Rockwell Int'l Corp., 24 F.3d 1272, 1277–78 (10th Cir.1994)); see also,
LCvR 7.1(i) (noting “[r]eply briefs are optional and not encouraged” and that
“[s]upplemental briefs may be filed only upon motion and leave of court”). However, “the
nonmoving party should be given an opportunity to respond to new material raised for the
first time in the movant's reply. . . . ‘Material,’ for purposes of this framework, includes
both new evidence and new legal arguments.” Locke v. Grady Cty., 437 Fed. Appx. 626,
633 (10th Cir. 2011) (quoting Green v. New Mexico, 420 F.3d 1189, 1197 (10th Cir. 2005))
(internal quotation marks omitted).
Accordingly, the Court will only consider the arguments in Plaintiff’s Sur-Reply
which are raised to address new issues or arguments addressed for the first time in
Defendant’s Reply. All other argument will be disregarded.
CONCLUSION
For the reasons set forth above, Defendant’s Motion to Strike Sur-Reply to
Defendants’ Motion for Summary Judgment [Doc. No. 117] is DENIED.
IT IS SO ORDERED this 24th day of July, 2019.

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