The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
SFF-TIR, LLC; STUART FAMILY
FOUNDATION, INC.; ALAN STUART 2012
GST FAMILY TRUST; STUART 2005 GST
FAMILY TRUST; CELEBRATION, LLC;
ANURAG AGARWAL; PETER BUCKLEY;
VINCENT SIGNORELLO; and RODNEY M.
REYNOLDS,
Plaintiffs,
vs. No. CIV 14-0369 JB\FHM
CHARLES C. STEPHENSON, JR.; CYNTHIA
A. FIELD; PETER BOYLAN, III;
LAWERENCE FIELD; CYPRESS ENERGY
PARTNERS-TIR, LLC; CEP CAPITAL
PARTNERS, LLC; CYPRESS ENERGY
HOLDINGS, LLC; and TULSA INSPECTION
RESOURCES, LLC,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Email from Stuart Kagen to the Court
(dated May 2, 2017), filed May 2, 2017 (Doc. 279)(“Request to File Surreply Response”); and
(ii) the Defendants’ Request for Expedited Telephonic Conference, filed July 13, 2017
(Doc. 302)(“Telephonic Conference Request”). The Court held a telephonic hearing on the
Request to File Surreply Response on June 8, 2017. See Notice of Hearing, filed June 7, 2017
(Doc. 284)(text-only entry); Remark: Telephonic Hearing Held 6/8/2017, filed June 8, 2017
(Doc. 460)(text-only entry). The Court held an expedited telephonic hearing on July 13, 2017.
See Notice of Motion Hearing Regarding the Defendants Request for Expedited Telephonic
Conference, filed July 13, 2017 (Doc. 303)(text-only entry); Remark: Telephonic Conference
Held, filed July 13, 2017 (Doc. 312)(text-only entry). The primary issues are: (i) whether the
Court should grant Plaintiffs SFF-TIR, LLC, Stuart Family Foundation, Inc, Alan Stuart 2012 GST
Family Trust, Celebration, LLC, Anurag Agarwal, Peter Buckley, Vincent Signorello, and Rodney
M. Reynolds (collectively, “the Plaintiffs”) leave to file a fifteen-page response to the Defendants’
Sur-Reply in Further Opposition to Plaintiffs’ Motion for Bench Trial [Doc. No. 253], filed May 1,
2017 (Doc. 277)(“Bench Trial Surreply”), because the Defendants’ Bench Trial Surreply exceeded
the page limit and raised new issues that the parties had not addressed; and (ii) whether the Court
should grant the request of Defendants Charles C. Stephenson, Jr., Cynthia A. Field, Peter Boylan,
III, Lawrence Field, Cypress Energy Partners-TIR, LLC, CEP Capital Partners, LLC, Cypress
Energy Holdings, LLC, and Tulsa Inspection Resources, LLC (collectively, “the Defendants”) for
an expedited telephonic conference, because the Plaintiffs sent the Defendants a draft Pretrial
Order that expands the Plaintiffs’ final witness list and final exhibit list. The Court concludes that:
(i) the Plaintiffs may file a response to the Defendants’ Surreply, because the Court wants to allow
each party to be heard, because the Court often allows parties to file surreplies and responses to
surreplies when a reply or a surreply raises a new issue or argument, and because the Court will
hold a hearing on the Bench Trial Surreply to allow everyone to have their full say on any new
issues before the Court rules; and (ii) the Court will hold an expedited telephonic conference on
July 13, 2017, because the Plaintiffs’ expanded witness list and exhibit list necessitate that the
parties agree to new deadlines for filing an agreed Pretrial Order.
PROCEDURAL HISTORY
On February 17, 2017, the Plaintiffs moved for a bench trial. See Plaintiffs’ Motion for a
Bench Trial on Plaintiffs’ First Through Fourth Claims for Relief, and Brief in Support at 2, filed
February 17, 2017 (Doc. 253)(“Bench Trial Motion”). The Plaintiffs argue that, if the Court
dismisses their securities-law claims, then the Court should hold a bench trial on the remaining
claims for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and unjust
enrichment. See Bench Trial Motion at 2. The Plaintiffs contend that the remaining claims are
equitable claims, and thus they are not triable by a jury. See Bench Trial Motion at 2.
The Defendants responded on March 3, 2017, see Defendants’ Brief in Opposition to
Plaintiffs’ Motion for a Bench Trial [Doc. No. 253], filed March 3, 2017 (Doc. 256)(“Bench Trial
Response”), and the Plaintiffs replied to the Defendants’ response on March 17, 2017, see
Plaintiffs’ Reply Brief in Further Support of Motion for a Bench Trial on Plaintiffs’ First Through
Fourth Claims for Relief, filed March 17, 2017 (Doc. 257)(“Bench Trial Reply”). The Defendants
then moved on March 22, 2017, for leave to file a surreply to the Bench Trial Reply. See
Defendants’ Motion for Leave to File Sur-Reply to Plaintiffs’ Reply Brief in Support of Motion
for a Bench Trial on Plaintiffs’ First Through Fourth Claims for Relief (Doc. 257), filed March 22,
2017 (Doc. 258)(“Request to File Surreply”). The Defendants argued that the Plaintiffs’ Bench
Trial Reply included attachments that “were not previously mentioned in either party’s briefing,”
so they sought “leave to file a sur-reply of not more than ten pages to protect their constitutional
right to a jury trial and to address the new material introduced by the Plaintiffs.” Request to File
Surreply at 2. At the April 27, 2017, hearing, the Court granted the Request to File Surreply,
because the Plaintiffs did not oppose the Defendants filing a surreply, because the Court wanted
to be “generous in listening to lawyers,” and because the Court wanted “to have a robust hearing.”
Transcript of Motion Hearing at 115:10-21 (held April 27, 2017)(Court, Kagen), filed June 5, 2017
(Doc. 283)(“April 27 Tr.”). See Minute Sheet at 1, filed April 27, 2017 (Doc. 276). The
Defendants then filed their surreply on May 1, 2017. See Bench Trial Surreply at 1.
On May 2, 2017, the Plaintiffs requested leave to file a response to the Defendants’ Bench
Trial Surreply. See Request to File Surreply Response at 1. The Plaintiffs argue:
Plaintiffs request the opportunity to file a fifteen page response to the
dramatically overlength surreply that Defendants filed regarding Plaintiffs’ motion
for a bench trial (Doc. 277). Otherwise, Plaintiffs will be prejudiced by the new
material that Defendants have submitted after oral argument on the motion was
completed.
Defendants’ surreply is fifteen pages long. That is in violation of Local
Civil Rule 7.2(h), which states that “Reply and supplemental briefs shall be limited
to ten (10) pages in length unless otherwise authorized by the Court.”
Defendants sought, and were granted, leave to file a “sur-reply brief not
longer than ten pages.” [Request to File Surreply] at 3; [Minute Sheet].
Nevertheless, they have filed a document replete with new argument that is 50%
longer than what the Court permitted.
Further, Plaintiffs will suffer prejudice if not allowed a response to this
document filed after oral argument. In the normal course, Plaintiffs, as movants,
are permitted the last word in the form of a reply. Plaintiffs did not file an
opposition to Defendants’ March 22, 2017 request to file a surreply on the
assumption that the surreply would be filed before the April 26th hearing, giving
Plaintiffs the ability to respond to it at the hearing. Denying Plaintiffs a response
to this post-hearing filing would prejudice Plaintiffs’ case.
Defendants’ surreply, furthermore, addresses arguments made at the
hearing rather than any “new arguments . . . raised in [Plaintiffs’] reply brief
[Doc. 257] . . . that did not appear in [Plaintiffs’] moving papers.”
To remedy these matters, Plaintiffs request leave to file a response of no
more than 15 pages, by not later than May 9, 2017.
Request to File Surreply Response at 1-2 (quoting Payne v. Tri-State Careflight, LLC, No. CIV
14-1044 JB/KBM, 2016 WL 6396214, at *18 (D.N.M. Oct. 25, 2016)(Browning, J.))(first two
alterations added and remaining alterations in Request to File Surreply Response, and not in
Payne v. Tri-State Careflight, LLC). At the June 8, 2017, hearing, the Court granted the Request
to File Surreply Response, because the Defendants did not object to the Plaintiffs responding to
the Bench Trial Surreply, and the Court wanted to “make sure that everybody has had their say.”
Transcript of Telephonic Hearing Proceedings at 3:5-6 (held June 8, 2017)(Court), filed October
4, 2017 (Doc. 461)(“Oct. 4 Tr.”). The Court said that the Plaintiffs’ response to the Bench Trial
Surreply should not exceed fifteen pages and must be filed by June 27, 2017. See Oct. 4 Tr.
at 4:5-6 (Court).
On July 13, 2017, the Defendants requested an expedited telephonic conference to discuss
the Pretrial Order and approaching deadlines. See Telephonic Conference Request at 1. The
Defendants note that the deadline for the parties to file an agreed Pretrial Order is July 13, 2017,
and they note that the deadline for the parties to “submit highlighted deposition transcripts,
annotated with remaining objections to the parties’ designations and counter-designations” is
July 14, 2017. Telephonic Conference Request at 1. The Defendants state that the Plaintiffs’
counsel delivered a draft of the Pretrial Order at 8:00 p.m. on July 12, 2017. See Telephonic
Conference Request at 2. The Defendants argue that the Plaintiffs’ draft Pretrial Order:
(i) expands the Plaintiffs’ final witness list by adding nine primary witnesses; (ii) expands the
Plaintiffs’ final exhibit list; and (iii) “[d]emonstrates a fundamentally incorrect view of the issue
to be tried,” because, in the draft Pretrial Order, the “Plaintiffs state repeatedly . . . that whether
the merger price paid by the Defendants was within the range of fair price is irrelevant.”
Telephonic Conference Request at 2 (internal quotation marks omitted). The Defendants also
argue that the “Plaintiffs’ counsel has not responded to Defendants’ requests to confer concerning
the deposition designations.” Telephonic Conference Request at 2. According to the Defendants,
“[w]ithout such conferences, the parties will be unable to submit annotated transcripts as required
by the Court.” Telephonic Conference Request at 2. The Defendants request a telephonic
conference, “at the Court’s earliest convenience, to address these issues.” Telephonic Conference
Request at 2.
The Court held a telephonic conference on July 13, 2017. See Transcript of Telephonic
Hearing Proceedings (held July 13, 2017), filed July 24, 2017 (Doc. 313)(“July 13 Tr.”). At the
hearing, the Court set July 17, 2017, as the deadline for the parties to exchange their final witness
lists and exhibit lists, if they are not included in the Pretrial Order. See July 13 Tr. at 44:6-14
(Court). The Court added that, if a witness list or exhibit list is in the Pretrial Order, “then that
will be the final witness list or exhibit list.” July 13 Tr. at 44:10-11 (Court). The parties agreed
that the Court’s new deadline was workable. See July 13 Tr. at 48:6-18 (DeMuro, Poston, Taylor,
Court). The parties and the Court also agreed to set July 17, 2017, as the deadline for filing an
agreed Pretrial Order, and they agreed to set July 19, 2017, as the deadline for submitting
annotated deposition transcripts with objections and for submitting deposition designations. See
July 13 Tr. at 47:12-48:18 (Taylor, DeMuro, Poston, Court).
LAW REGARDING SURREPLIES
Rule 7.2(h) of the Local Rules of the United States District Court for the Northern District
of Oklahoma provides: “Supplemental briefs are not encouraged and may be filed only upon
motion and leave of Court. Reply and supplemental briefs shall be limited to ten (10) pages in
length unless otherwise authorized by the Court.” N.D. Okla. LCvR7.2(h). See Kozak v. Indep.
Sch. Dist. No. 1 of Tulsa Cty, Okla., Case No. 16-CV-352-JHP-JFJ, 2018 WL 912270, at *4 n.6
(N.D. Okla. Feb. 15, 2018)(Payne, J.). “A surreply is appropriate and should be allowed where
new arguments are raised in a reply brief.” Walker v. THI of N.M. at Hobbs Ctr., 2011 WL
2728344, at *1 (D.N.M. July 6, 2011)(Browning, J.). See Pimentel & Sons Guitar Makers, Inc. v.
Pimentel, 229 F.R.D. 201, 204 (D.N.M. 2005)(Browning, J.). The Court has granted leave to file
a surreply where a party has made arguments and presented new evidence that did not appear in
the party’s motion. See Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. at 204.
ANALYSIS
The Court grants the Request to File Surreply Response and the Telephonic Conference
Request. At the October 4, 2017, hearing, the Defendants did not oppose the Plaintiffs responding
to the Bench Trial Surreply. See Oct. 4 Tr. at 3:5-6 (Court). Moreover, in the Bench Trial
Surreply, the Defendants address arguments other than the new arguments that the Plaintiffs make
in the Bench Trial Reply, see Request to File Surreply Response at 2, and the Court wants to
“make sure that everybody has had their say,” Oct. 4 Tr. at 3:5-6 (Court). The Court therefore
concludes that leave for responding to the Bench Trial Surreply is appropriate under local rule
7.2(h). See N.D. Okla. LCvR7.2(h); Kozak v. Indep. Sch. Dist. No. 1 of Tulsa Cty, Okla., 2018
WL 912270, at *4 n.6 (accepting the plaintiff’s surreply “[i]n the interest of giving [p]laintiff the
opportunity to fully litigate his claim,” and because the defendant did not object to the plaintiff’s
filing of a surreply); Dogs Deserve Better, Inc. v. N.M. Dogs Deserve Better, Inc., No. CIV 13-
0592 JB/GBW, 2016 WL 6396392, at *24 (D.N.M. Oct. 12, 2016)(Browning, J.); Payne v. Tri-
State Careflight, LLC, 2016 WL 6396214, at *18; Walker v. THI of N.M. at Hobbs Ctr., 2011
WL 2728344, at *1. Because the Defendants’ Bench Trial Surreply exceeds the ten-page limit
for supplemental replies under rule 7.2(h), see N.D. Okla. LCvR7.2(h)., by five pages, the Court
grants the Plaintiffs leave to file a fifteen-page response to the Bench Trial Surreply by June 27,
2017, see Oct. 4 Tr. at 4:5-6 (Court).
Last, the Court grants the Telephonic Conference Request, and the Court held a telephonic
conference on July 13, 2017, to address the parties’ concerns regarding filing an agreed Pretrial
Order. See July 13 Tr. at 1. The deadline for the parties to exchange their final witness lists and
exhibit lists and to file an agreed Pretrial Order is changed from July 13, 2017, to July 17, 2017,
and the deadline to submit annotated deposition transcripts with objections and to submit
deposition designations is now July 19, 2017. See July 13 Tr. at 44:6-14 (Court); id. at 47:12-
48:18 (Taylor, DeMuro, Court). The parties agreed to these deadlines. See July 13 Tr. at 47:12-
48:18 (Taylor, DeMuro, Poston, Court). The Court also noted that it may be difficult to object to
exhibits and deposition designations while the parties work on an agreed Pretrial Order, so any
objections should be included in the Pretrial Order so that they are preserved. See July 13 Tr.
at 5:4-15 (Court).
IT IS ORDERED that: (i) the request in the Email from Stuart Kagen to the Honorable
James O. Browning (dated May 2, 2017), filed May 2, 2017 (Doc. 279), is granted; (ii) the
Defendants’ Request for Expedited Telephonic Conference, filed July 13, 2017 (Doc. 302), is
granted; (iii) the Plaintiffs may file a fifteen-page response to the Defendants’ Sur-Reply in Further
Opposition to Plaintiffs’ Motion for Bench Trial [Doc. No. 253], filed May 1, 2017 (Doc. 277), by
June 27, 2017; (iv) the Court held an expedited telephonic conference on July 13, 2017; (v) the
deadline for the parties to exchange their final witness lists and exhibit lists and to file an agreed
Pretrial Order is July 17, 2017; and (vi) the deadline to submit annotated deposition transcripts
with objections and to submit deposition designations is July 19, 2017.
/\ \
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UM I iD STATES DISTRICI TUDOE
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Counsel: {
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Jamison A. Diehl ~
Akin Gump Strauss Hauer & Feld LLP
New York, New York
_8-
-- and --
Stratton Taylor
Toney D. Foster
Mark H. Ramsey
Clinton Russell
Jacob R. Daniel
The Law Firm of Taylor, Foster, Mallett, Downs, Ramsey, & Russell
Claremore, Oklahoma
-- and --
Stuart Kagen
Joshua C. Gillette
Daniel A. Cohen
Kyla Janine Grant
Joel M. Taylor
Kagen & Caspersen
New York, New York
Attorneys for the Plaintiffs
Frederic Dorwart
Paul DeMuro
Sarah Poston
Nora Rose O’Neill
John D. Clayman
Fredric Dorwart, Lawyers PLLC
Tulsa, Oklahoma
Attorneys for the Defendants