“[T]he decision to allow a sur-reply lies within the district court’s discretion.”
How later courts described this case
- “[T]he decision to allow a sur-reply lies within the district court’s discretion.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AHMED BAQER, ET AL. CIVIL ACTION NO: 20-980
VERSUS JUDGE DARREL JAMES PAPILLION
ST. TAMMANY PARISH MAGISTRATE JUDGE EVA J.
GOVERNMENT, ET AL. DOSSIER
ORDER
On August 10, 2023, Defendants Randy Smith and Lacey Kelly (“Defendants”) filed five
motions for summary judgment. R. Docs. 234-239. The parties fully briefed the motions, and
thereafter, Plaintiffs Ahmed Baqer, Klabert Joseph Guillot, Sr., Terry Matthew Hall, Jr., Kevin
Louviere, and Floyd Williams (“Plaintiffs”) filed a motion to strike an undisclosed exhibit attached
to Defendants’ reply briefs. R. Doc. 331. On February 8, 2024, following oral argument on
various motions in limine, the Court reopened discovery for a limited time and purpose and denied
Defendants’ motions for summary judgment without prejudice to the right to be reurged following
the close of the new discovery period. R. Doc. 367. In its order denying the motions without
prejudice, the Court noted its order should not be construed as license to refile entirely new motions
for summary judgment and that the refiled motions, should Defendants choose to file them,
should be the same or substantially similar to those originally filed. The Court likewise
denied Plaintiffs’ motion to strike, without prejudice, and ordered that should Plaintiffs wish to
refile the motion, they had to do so within fourteen days of the filing of the brief to which the
subject exhibit was attached. Id.
On May 16, 2024, Defendants timely refiled their motions for summary judgment and
noticed the motions for submission on June 12, 2024. R. Docs. 387, 388, and 390-92. On May
30, 2024, Plaintiffs filed a motion to strike Defendants’ motions for summary judgment on the
grounds that they are substantially different than their original motions. R. Doc. 394. Plaintiffs’
motion also sought an order staying briefing until the Court ruled on Plaintiffs’ motion to strike.
Id. Plaintiffs noticed their motion for submission on June 26, 2024, fourteen days after the
submission date for Defendants’ motions for summary judgment, and did not move for expedited
consideration. Id. On June 10, 2024, after Plaintiffs’ deadline to oppose Defendants’ motions for
summary judgment had lapsed, Defendants filed a reply brief urging the Court to deem
Defendants’ statement of facts as true in light of Plaintiffs’ failure to oppose their motions. R.
Doc. 398.
On June 13, 2024, Plaintiffs filed a motion for leave to file a sur-reply. R. Doc. 402. The
proposed pleading argues Plaintiffs appropriately responded to Defendants’ motions for summary
judgment by filing their motion to strike and to stay briefing. R. Doc. 402-1. Alternatively,
Plaintiffs request that if they “were not correct regarding the timing of their responses,” that they be
afforded a sixty-day extension to respond to Defendants’ motion for summary judgment.
Id. at 6. Defendants filed an opposition to Plaintiffs’ motion to file a sur-reply, arguing that
because Defendants’ reply brief does not include any new issues, theories, or arguments, a sur-
reply would be inappropriate. R. Doc. 403.
As an initial matter, the Court exercises its broad discretion and grants Plaintiffs’ motion
for leave to file a sur-reply. Ga. Firefighters’ Pension Fund v. Anadarko Petroleum Corp., 99
F.4th 770, 774 (5th Cir. 2024) (“[T]he decision to allow a sur-reply lies within the district court’s
discretion.”). Indeed, this does not represent the typical sur-reply scenario wherein a motion is
fully briefed and the non-moving party thereafter seeks to file a sur-reply to address arguments
raised for the first time in the moving party’s reply brief. But the Court nevertheless finds a sur-
reply is an appropriate vehicle to explain a party’s failure to meet its deadline.1 See Smith v. Koch
Foods, Inc., No. 19-CV-721, 2022 WL 17084137, at *7 (S.D. Miss. Nov. 18, 2022) (suggesting it
is appropriate for a party to seek leave to file a sur-reply to explain why it missed a deadline).
As explained above, Plaintiffs, in their sur-reply, argue that they preserved their opposition
to Defendants’ motions for summary judgment by filing a motion to strike the motions and stay
briefing until resolution of the motion. The Court disagrees. This Court’s Local Rules require a
party opposing a motion to file an opposition brief no later than eight days before the noticed
submission date. L.R. 7.5. The Local Rules do not carve out an exception to this rule for parties
who have filed a motion to strike, and, as Defendants point out, district courts have expressly found
that “[f]iling a motion to strike in response to a motion is not a reasonable substitute for filing a
response.”2 Scottsdale Ins. Co. v. Flores, No. 19-CV-156, 2019 WL 4738917, at *1 (W.D. Tex.
Sept. 27, 2019) (quoting Brown v. Bridges, 12-CV-4947, 2015 WL 11121361, at *2 (N.D. Tex.
Jan. 30, 2015)), modified in part on other grounds, 2015 WL 12532137 (N.D. Tex. June 22, 2015)
(internal quotations omitted). The Court has no doubt that Plaintiffs failure to comply with Local
Rule 7.5 came from a misunderstanding of the Local Rules and not a dilatory motive. For this
reason, and because the Court cannot foresee any meaningful prejudice to Defendants, including
any endangerment of the parties’ March 2025 trial date, Plaintiffs’ alternative request for
additional time to respond to Defendants’ motions for summary judgment is granted. Any
1 Alternatively, the Court would construe Plaintiffs’ motion for leave to file a sur-reply as a motion for an extension
of time to file an opposition to Defendants’ motions for summary judgment.
2 Plaintiffs also make several references to the Court’s February 8, 2024 Order denying the parties’ motions without
prejudice and appear to argue that Plaintiffs were merely complying with the Court’s Order to file their motion to
strike within fourteen days of Defendants’ motions for summary judgment. But Plaintiffs misunderstand the Court’s
Order. That directive was intended to preserve Plaintiffs’ right to refile a motion to strike an allegedly undisclosed
exhibit that Defendants attached to their original reply briefs. The Court’s Order is unrelated to Plaintiffs’ instant
motion to strike, which asks the Court to strike Defendants’ motions for summary judgment in their entirety.
Moreover, nothing in the order suggested that a future motion to strike filed by Plaintiffs obviated their responsibility
to comply with Local Rule 7.5.
opposition to Defendants’ motions for summary judgment must be filed on or before June 28,
2024. Any reply to Plaintiffs’ oppositions must be filed on or before July 5, 2024.
New Orleans, Louisiana, this 14th day of June 2024.
DARREL GAMES PAPILLA TON
UNITED STATES DISTRICT JUDGE