stating that under case law, “when a party fails to respond to an argument, that argument is generally deemed to be unopposed and the proposition conceded”
How later courts described this case
- stating that under case law, “when a party fails to respond to an argument, that argument is generally deemed to be unopposed and the proposition conceded”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION
STATE OF TENNESSEE, ex rel. )
JOHNATHAN SKRMETTTI, ATTORNEY )
GENERAL and REPORTER, and )
COMMONWEALTH OF KENTUCKY, )
ex. rel. DANIEL CAMERON, ATTORNEY ) No. 3:23-CV-00046-DCLC-JEM
GENERAL, )
)
Plaintiffs, )
)
v. )
)
IDEAL HORIZON BENEFITS, LLC d/b/a )
SOLAR TITAN USA, et. al., )
)
Defendants. )
MEMORANDUM AND ORDER
This case is before the Court pursuant to 28 U.S.C. § 636, the Rules of this Court, and
Standing Order 13-02.
Now before the Court is Plaintiffs’ Motion to Strike or, in the Alternative, Motion for Leave
to File Supplemental Brief [Doc. 270]. Defendant Solar Mosaic LLC (“Mosaic”) filed a response
in opposition to the motion [Doc. 273], and Plaintiffs filed a reply [Doc. 275]. The motion is ripe
for adjudication. See E.D. Tenn. L.R. 7.1(a). For the reasons explained below, the Court GRANTS
IN PART AND DENIES IN PART the motion [Doc. 270].
I. BACKGROUND
On January 29, 2024, Defendant Mosaic filed a Motion to Dismiss Plaintiffs’ Complaint
for Lack of Personal Jurisdiction, Improper Venue, and Failure to State a Claim (“Motion to
Dismiss”) [Doc. 249]. Plaintiffs filed a response in opposition (“Opposition”) on March 14, 2024
[Doc. 261]. In support of their Opposition, Plaintiffs filed the Declaration of Stacey Monks
[Doc. 261-1], the Declaration of Robert Anderson [Doc. 261-2], and Mosaic Complaint
Spreadsheet (“Exhibit 3”) [Doc. 261-3]. On April 4, 2024, Defendant Mosaic filed its reply in
support of its Motion to Dismiss (“Reply”) [Doc. 268]. On the same day, Defendant Mosaic filed
Evidentiary Objections to the Declarations of Stacey Monks and Robert Anderson in Support of
Plaintiffs’ Opposition to Motion to Dismiss (“Evidentiary Objections”) [Doc. 269]. Defendant
Mosaic’s Evidentiary Objections challenge the declarations [Docs. 261-1, 261-2] and Exhibit 3
[Doc. 261-3] that Plaintiffs filed with their Opposition.
Plaintiffs now move to strike Defendant Mosaic’s Evidentiary Objections and the
purported new arguments that Defendant Mosaic made in its Reply pursuant to the Court’s inherent
authority [Doc. 270]. They assert that the Evidentiary Objections are “not a filing recognized by
this Court and allowing [Defendant] Mosaic to file the [Evidentiary] Objection[s] would allow it
to circumvent the “20-page maximum for its reply’” [Id. at 2 (citing Doc. 239 ¶ 7 and Doc. 240)].
Defendant Mosaic’s Evidentiary Objections, Plaintiffs contend, should have been incorporated in
its Reply under Local Rule 7.1(c) [Id. (citation omitted)]. In the alternative, Plaintiffs seek leave
to file a response to the Evidentiary Objections, and they seek guidance from the Court regarding
the preferred form because “[Defendant] Mosaic’s Evidentiary Objection[s] appear[] to be based
on a standard form utilized by some courts” [Id. at 3]. In addition, Plaintiffs argue that Defendant
Mosaic raised new arguments in its Reply, which the Court should strike, or in the alternative, the
Court should give Plaintiffs leave to file a response [Id. at 4–5].
Defendant Mosaic filed a response in opposition to the motion [Doc. 273].1 It denies that
its Evidentiary Objections violate the Local Rules and states that Local Rule 7.1(c) is not applicable
1 Defendant Mosaic asserts that Plaintiffs’ motion is procedurally improper because
Rule 12(f) of the Federal Rules of Civil Procedure pertains only to pleadings [Doc. 273 p. 3].
Despite this acknowledgment, Defendant Mosaic relies on cases adjudicating Rule 12(f) motions
[Id. at 5–6]. Calling the declarations and Exhibit 3 “improper,” Defendant Mosaic asserts that its
Evidentiary Objections were necessary [Id. at 6–7]. Defendant Mosaic denies that it raised new
arguments in its Reply and argues that Plaintiffs are not entitled to file a supplemental brief
[Id. at 7–8].
Plaintiffs reply that “[t]he Court should reject [Defendant’s] attempts to obfuscate its
circumvention of this Court’s page limits for its Reply and strike [Defendant] Mosaic’s Evidentiary
Objections” [Doc. 275 p. 3]. To the extent the Court considers the Evidentiary Objections,
Plaintiffs request an opportunity to respond and states that the declarations and Exhibit 3 are proper
[Id. at 4–5]. They reiterate that the Reply raises new arguments and that they should be provided
an opportunity to respond if the Court declines to strike them [Id. at 5–6].
II. ANALYSIS
The Court declines to strike Defendant Mosaic’s Evidentiary Objections or the new
arguments Defendant Mosaic raises in its Reply, but the Court will allow Plaintiffs to file a
response as requested.
A. Plaintiffs’ Request to Strike Defendant Mosaic’s Evidentiary Objections
A court has “inherent authority to strike material from its docket for lack of compliance
with court rules.” Doe #1 v. Am. Fed’n of Gov’t Emps., No. CV 20-1558, 2022 WL 4182223, at
*14 (D.D.C. Sept. 13, 2022) (collecting cases). Courts have this inherent authority “as part of
managing their dockets[,]” and they are permitted to “strike improperly-filed matters and other
items.” Wohadlo v. Tentcraft Inc., No. 1:18-CV-1442, 2021 WL 2383844, at *5 (W.D. Mich.
Apr. 20, 2021) (citations omitted), report and recommendation adopted, No. 1:18-CV-1442,
[See id. at 4–5]. In any event, Plaintiffs do not cite to Rule 12(f) in their motion [See Doc. 270;
see also Doc. 275 p. 2]. The Court therefore does not address Rule 12(f).
2021 WL 1997020 (W.D. Mich. May 19, 2021); see also Hlfip Holding, Inc. v. Rutherford Cnty.,
No. 3:19-CV-00714, 2020 WL 6484254, at *2 (M.D. Tenn. Sept. 13, 2020) (stating that courts
have the inherent authority to strike filings that are “otherwise improper under the circumstances”
(citation omitted)).
Local Rule 7.1(a) provides for an opening brief, an answering brief, and a reply brief.
E.D. Tenn. L.R. 7.1(a). In addition, Local Rule 7.1(b) states that briefs must be 25 pages “unless
otherwise ordered by the Court.” E.D. Tenn. L.R. 7.1(b). On December 1, 2023, the parties
stipulated that Defendant Mosaic could have 20 pages for its reply brief to its motion to dismiss,
and the Court adopted the parties’ stipulation [Doc. 240]. Plaintiffs assert that Defendant Mosaic’s
filing of the Evidentiary Objections is an attempt to circumvent the parties’ agreement, but
Defendant Mosaic responds that it did not file the Evidentiary Objections as a reply brief as
contemplated by Rule 7.1(c) and that “the absence of a local rule pertaining to evidentiary
objections does not foreclose them” [Doc. 273 p. 6 (footnote omitted)].
Local Rule 7.1(d) states, “No additional briefs, affidavits, or other papers in support of or
in opposition to a motion shall be filed without prior approval of the Court.” E.D. Tenn.
L.R. 7.1(d). Given that Defendant Mosaic insists that the Evidentiary Objections should not be
considered a reply brief, and given that it did not seek prior approval from the Court before filing,
its Evidentiary Objections are improper. See id.
Defendant Mosaic asserts that its Evidentiary Objections are necessary because Plaintiffs
offer “new and improper evidence[,]” they rely on Exhibit 3 in an attempt to assert new allegations,
and they misleadingly rely on the declarations [Doc. 273 pp. 6–7]. Plaintiffs respond that they
offered the evidence as part of their arguments under Rule 12(b)(2) and (3) and not Rule 12(b)(6)
and that the evidence explains “why the Court has personal jurisdiction” [Doc. 275 p. 5].
The Court has reviewed Defendant Mosaic’s Evidentiary Objections and, without making
any findings on the merits of the Evidentiary Objections, finds that they may be helpful to the
District Judge in rendering a decision on the Motion to Dismiss. The Court therefore declines to
strike Defendant Mosaic’s Evidentiary Objections. See SmartBank v. Cartron,
No. 4:19-CV-00062, 2020 WL 1897168, at *4 (E.D. Tenn. Apr. 16, 2020) (“The Court has broad
discretion to overlook violations of its local rules.”). The Court, however, ADMONISHES
Defendant Mosaic that future filings that do not comply with the Local Rules are subject to being
struck from the record.
Plaintiffs seek leave to file a response to Defendant Mosaic’s Evidentiary Objections.
Defendant Mosaic does not respond to this request. AK v. Behav. Health Sys., Inc.,
382 F. Supp. 3d 772, 774 (M.D. Tenn. 2019) (stating that under case law, “when a party fails to
respond to an argument, that argument is generally deemed to be unopposed and the proposition
conceded”). Even so, the Court finds Plaintiffs’ request well taken. Plaintiffs SHALL file their
response within seven days of entry of this Order.2
B. Plaintiffs’ Request to Strike New Arguments Raised in the Reply
The parties dispute whether Defendant Mosaic raised new arguments in its Reply. In the
Opposition, Plaintiffs argue that venue is appropriate because the witnesses reside in this District
[Doc. 261 p. 23]. Defendant Mosaic’s Reply states that key witnesses “live in Kentucky and fall
outside the Court’s subpoena power” [Doc. 268 p. 10]. Also in their Opposition, Plaintiffs argue
that under the Tennessee Home Solicitation Sales Act (“THSSA”), even if Defendant Mosaic was
entitled to an offset for each solar panel that was installed, “individual evaluations of damages” do
2 Defendant Mosaic shall provide Plaintiffs with an editable copy of its Evidentiary
Objections so that Plaintiffs can insert their response [See Doc. 275 pp. 3–4 n.1].
not bar the litigation [Doc. 261 p. 47]. Specifically, they claim, “The hypothetical possibility of
individualized evaluations of damages is not unusual in mass consumer suits—and it certainly is
not a bar to litigation” [Id.]. In its Reply, Defendant Mosaic argues that “Plaintiffs fail to rebut that
individualized liability and damage considerations make broad relief under THSSA and KHSSA
impracticable in this case” [Doc. 268 p. 27]. Defendant Mosaic asserts that its Reply comports
with Local Rule 7.1(c) [Doc. 273 p. 7], but Plaintiffs claim their Opposition did not reference
Defendant Mosaic’s arguments in its Reply regarding the subpoena power and individualized
liability under the Kentucky Home Solicitation Sales Act (“KHSSA”) [Doc. 275 pp. 5–6].
Local Rule 7.1(c) states, “A reply brief shall not be used to reargue the points and
authorities included in the opening brief, but shall directly reply to the points and authorities
contained in the answering brief.” E.D. Tenn. L.R. 7.1(c). “It is well-settled that a movant cannot
raise new issues for the first time in a reply brief because consideration of such issues ‘deprives
the non-moving party of its opportunity to address the new arguments.’” Malin v. JPMorgan,
860 F. Supp. 2d 574, 577 (E.D. Tenn. 2012) (quoting Cooper v. Shelby Cnty., No. 07–2283,
2010 WL 3211677, at *3 n.14 (W.D. Tenn. Aug. 10, 2010)). The purpose of the briefing schedule
it so that the parties have an opportunity to address all arguments and evidence. Brown v. Genworth
Life & Annuity Ins. Co., No. 3:18-CV-506, 2020 WL 7049880, at *3 (E.D. Tenn. May 12, 2020).
Although the parties argue about venue in the Motion to Dismiss and the Opposition, they
did not do so in the context of subpoena power. Similarly, “Neither [Defendant] Mosaic’s
Memorandum in Support of its Motion to Dismiss [Doc. 250] nor Plaintiffs’ Opposition addressed
whether an individualized damages calculation was required under the KHSSA” [Doc. 275 p. 5].3
3 Defendant’s Memorandum of Law in Support of its Motion to Dismiss argues that
“enforcement through this lawsuit is inappropriate because Plaintiffs do not represent individual
consumers and this Court is not able to undertake the individualized analysis necessary to establish
In exercising its discretion, the Court declines to strike these arguments, but it will allow Plaintiffs
to file a supplemental brief to address the newly-raised issues. See Crenshaw v. Portfolio Recovery
Assocs., LLC, 433 F. Supp. 3d 1057, 1063 (W.D. Ky. 2020) (explaining that the court in an exercise
of its discretion, may grant leave to file a sur-reply “‘where the movant raises new arguments in
its reply brief” (quoting First Specialty Ins. Corp. v. 633 Partners, Ltd., 300 F. App’x 777, 788
(11th Cir. 2008)). Plaintiffs SHALL file a three-page supplemental brief within seven days of
entry of this Order.
I. CONCLUSION
For the reasons explained above, the Court GRANTS IN PART AND DENIES IN PART
Plaintiffs’ Motion to Strike or, in the Alternative, Motion for Leave to File Supplemental Brief
[Doc. 270].
IT IS SO ORDERED.
ENTER:
ME PD Gal
7h E. McCook
United States Magistrate Judge
damages under the THSSA” [Doc. 250 p. 72]. Defendant Mosaic does not make the same argument
with respect to the KHSSA [See id. at 73].