Endeavor MeshTech, Inc. v. Zenner Performance Meters, Inc. d/b/a Zenner USA

Filing 33

MEMORANDUM AND ORDER. Signed by Judge William C. Bryson on 1/13/2016. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
ENDEAVOR MESHTECH, INC.,

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Plaintiff,
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v.
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ZENNER PERFORMANCE METERS, INC., §
D/B/A ZENNER USA,
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Defendants.
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Case No. 2:15-CV-1155-WCB

MEMORANDUM AND ORDER
Before the Court is the motion of defendant Zenner Performance Meters, Inc., (“Zenner”)
to strike the response to Zenner’s motion to dismiss filed by plaintiff Endeavor Meshtech, Inc.
(“Endeavor”) (Dkt. No. 29). The motion is DENIED.
1. Zenner contends that Endeavor’s response to Zenner’s motion to dismiss exceeded
the 30-page limit set forth in this court’s local rules for dispositive motions and responses to
those motions. Local Rule CV-7(a)(1). Zenner’s complaint is that Endeavor’s response is more
than 30 pages long if the table of contents, the table of authorities, and the signature page are
counted against the 30-page limit. Zenner has cited no authority for the proposition that the table
of contents, the table of authorities, and the signature page should be counted as part of the
allotted 30 pages, and the Court sees no reason to calculate the 30 pages in the manner that
Zenner proposes.
The court is aware of no federal court that counts the table of contents, the table of
authorities, or the signature page against the applicable page limitation. The Supreme Court, for
example, expressly excludes the table of contents and other components of the brief, such as the
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questions presented, the list of parties, and the corporate disclosure statement, from the page
limitations, see Sup. Ct. R. 33.1(d). The same practice was employed by the courts of appeals
during the years that briefs in the appellate courts were subject to a page limitation as opposed to
a word limit. While federal appellate briefs are now subject to word limits, not page limits, the
Federal Rules of Appellate Procedure provide that the word limits do not include the corporate
disclosure statement, the table of contents, the table of citations, the statement with respect to
oral argument, any addendum containing statutes, rules, or regulations, and any certificates of
counsel. Fed. R. App. P. 32(a)(7)(B)(iii). As for the signature block identifying counsel, it
would be pointless to rule that the signature lines at the end of a brief should be counted against
the page limitation, as the party could simply place the caption and signature of counsel on the
front of the brief and omit the duplicative signature lines at the end of the brief, where such
signatures are conventionally found.
To count the table of contents, the table of authorities, and the signature block against the
30-page limit would result in arbitrariness in various situations and would disserve the interests
of the court. A table of contents and a table of authorities are typically included not because they
buttress the party’s argument but because they provide a convenient means for the court to find
its way about the brief and to locate particular arguments the court may wish to focus on and
particular cases the court may wish to consult. A judicial construction that would discourage the
use of such devices would be self-defeating. And because, when briefs are filed by multiple
parties (a practice the courts generally applaud) the list of signatures can run to several pages in
length, a rule that would require the signature blocks to be counted against the page limitation
would discourage the practice (or would make it more difficult for the court to determine at a

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glance which parties have joined the brief in question). Finally, it would be nonsensical to
punish a party that cited numerous authorities compared to a party that cited very few, which
would be the effect of counting the table of authorities against the 30-page limit.
In sum, the Court rejects Zenner’s argument that Endeavor exceeded the 30-page limit in
its response to Zenner’s motion to dismiss. Because Endeavor has not exceeded the 30-page
limit, the Court will not grant Zenner’s request to add six pages to the number of pages it will be
permitted to file in the briefing on the motion to dismiss.
2. Zenner also contends that large portions of Endeavor’s response, including a number
of the exhibits attached to the response, should be stricken because they go beyond the scope of
what is permissible for a court to consider in deciding a motion to dismiss under Fed. R. Civ. P.
12(b)(6).

The court regards the arguments about whether particular evidence should be

considered for purposes of a motion to dismiss to be the proper subject for a reply brief; it would
be inefficient to conduct a separate inquiry into whether that evidence should be stricken when
the issue can be addressed and decided in the context of the principal motion.
To the extent that the Court regards particular evidence as inappropriate for consideration
in the context of a motion to dismiss, the Court will disregard that evidence in the course of
considering and deciding the motion. To the extent that Zenner wishes to respond to Endeavor’s
suggestion that the Court could consider treating the motion to dismiss as a motion for summary
judgment, that argument can be made in a reply brief in the proceedings on the motion to
dismiss. Of course, Zenner is also free to file a separate motion for summary judgment at any

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time.1 For that reason as well, the Court is not persuaded that any additional pages should be
granted to Zenner for its briefing in the context of the motion to dismiss.
In its brief in response to the motion to dismiss, Endeavor has assumed that, by not filing
a reply brief within the required period of time after Endeavor’s response, Zenner has waived its
right to file a reply brief. The Court disagrees. While Zenner should perhaps have sought leave
of court to postpone filing its reply brief, the Court is persuaded that by Zenner’s motion to strike
should be treated as including a request to stay the briefing schedule on the motion to dismiss
until the Court ruled on the motion to strike. The Court now grants that request nunc pro tunc
and will allow Zenner to file a reply brief on the motion to dismiss if that brief is filed within 10
days of the date of this order. See Local Rule CV-7(f), CV-6(a) (seven days for filing a reply
brief plus three days for service). Endeavor will, of course, be permitted to file a surreply brief,
as provided by the Local Rules.
For the foregoing reasons, Zenner’s motion to strike Endeavor’s response to Zenner’s
motion to dismiss (Dkt. No. 29) is DENIED.

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In its motion, Zenner argues that if the Court decides to treat its motion to dismiss as a
motion for summary judgment, the Court should grant it “an opportunity to provide additional
briefing to support its Motion to Dismiss on a summary judgment basis.” Zenner is free to make
that point in its reply brief on the motion to dismiss. If the Court determines that the motion to
dismiss should be treated as one for summary judgment under Fed. R. Civ. P. 56, the Court will
comply with the directive of Fed. R. Civ. P. 12(d), which provides that “[a]ll parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion.”
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IT IS SO ORDERED.
SIGNED this 13th day of January, 2016.

_____________________________
WILLIAM C. BRYSON
UNITED STATES CIRCUIT JUDGE

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