1 M OBERLY RY F SQUANDERING THE LAST WORD: THE MISUSE OF REPLY AFFIDAVITS IN CEEDINGS SUMMARY JUDGMENT PRO & Michael D. Moberly John M. Fry - has - the - last - word problem “ is inherent This who . . . in the litigation process; the party who replies has the last 1 word. ” ... I ... ... NTRODUCTION 44 I. ... P ROCEDURAL R ULES T HAT M AY B E I NVOKED W HEN S UBMITTING R II. EPLY A S UPPORT OF S UMMARY J UDGMENT ... ... 48 FFIDAVITS IN Federal Rule 56(c) and Corresponding Local Rules 48 A. ... IV ED F C . . P. B. The Requirements for Affidavit Submission under R. ... ... ... .. 53 6(c)(2) 1. Rule 6(c)(2) Requires That Supporting Affidavits Be Served Wit ‖ a Motion ... ... ... 53 ― h Tishcon Corp. v. Soundview 2. Rejecting Litigation by Ambush: ... ... Communications, Inc. 54 ... 3. Replying To Factual Matters Initiated by the Nonmovant: Not Ambush, But Still Not Within the Contemplation of Rule 6(c)(2) ... ... 55 ... ... 57 C. Other Potential Mechanisms for Submitting Reply Affidavits ... 57 1. Standards for Amendment Embodied in Federal Rule 6(b) Cu ring Deficiencies Through Rule 56(e) ... ... 60 2. A VOIDABLE C ONSEQUENCES : E FFECTIVE D ISCOVERY AS A M EANS OF III. A EED FOR R EPLY A FFIDAVITS N ... ... 63 VOIDING THE IV. B E C AREFUL W HAT Y OU W ISH F OR : A M OVANT P ERMITTE D TO S UBMIT ... R FFIDAVITS R ARELY S HOULD D O S O ... A 66 EPLY A. Reply Affidavits and the Absence of a Genuine Issue of Material Fact Are Almost Always Mutually Exclusive ... ... 66 1. Genuine Factual Disputes and Sham Affidavits ... 67 B. In Attempting to Demonstrate the Absence of Material Factual B.B.A., J.D., University of Iowa; Shareholder, Ryley, Carlock & Applewhite, Phoenix, Arizona. B.S., J.D., Arizona State University; Shareholder, Ryley, Carlock & Applewhite, Phoenix, Ar i zona. 1 Lebda v. Charles Schwab & Co., No. 89 C 7840, 1990 WL 43531, at *4 (N.D. Ill. Mar. 30, 1990).
2 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 44 UFFOLK ... 71 Disputes, Reply Affidavits Are Distinctly Immaterial R EPLY A FFIDAVITS : T HE K EY TO P ERPETUAL V. RIEFING AND E N EMY OF B L W ORD ... AST ... 73 THE ... C ONCLUSION VI. ... ... ... 78 ... I. INTRODUCTION ― Federal Rules ) Rule 56 of the Federal Rules of Civil Procedure ( ‖ 2 governs summary judgment proceedings in federal courts. In a federal civil action, either party may move for summary judgment with or without 3 supporting affidavits under Rule 56. The other party then has an opport u nity to respond to the motion with or without affidavits to establish 4 istence of a genuinely disputed i ssue of fact for trial. Summary the e x judgment is appropriate only if the evidence submitted by the parties or otherwise on file with the court establishes that there is no such triable 5 . issue and that the moving party is entitled to judgment as a matter of law 2 ED . R. F IV . P . 56. The Federal Rules of Civil Procedure w ere amended effective C Dece m ber 1, 2007, ―to make them more easily understood and to make style and terminology consistent throughout the rules.‖ F ED . R. C IV . P . 56 advisory committee‘s note (2007 amendments). A l ules whenever possible, many of the though this article discusses the amended r See Bodley v. Plaza Mgmt. Corp., 550 F. Supp. 2d 1085, cited cases arose under the prior rules. 1087 n.2 (D. Ariz. 2008) (stating amended rule may be interpreted ―by applying precedent for the 7 amendments i tended as ―stylistic only‖); Sweitzer v. Am. Express n prior version‖ because 200 Centurion Bank, 554 F. Supp. 2d 788, 794 n.1 (S.D. Ohio 2008) (noting 2007 amendments reflect ―stylistic changes‖ and do not ―have any effect on . . . the [c]ourt‘s analysis‖). Effective December 1, 2009, Rule 56 again was amended, this time to update ―outmoded‖ timing ED . R. provisions. C IV . P . 56 advisory committee‘s note (2009 amen d ments). F 3 - See ED . R. C IV . P. 56(a) F (b); Bal derston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 318 (7th Cir. 2003) (discussing importance of Rule 56(a) in refusal to strike a vit for summary judgment); see also affid Kistner v. Califano, 579 F.2d 1004, 1006 (6th Cir. 1978) (reversi ng lower court‘s sua sponte granting of summary judgment) . In motion practice, affid a vits are typically used in lieu of live testimony to present facts to the court. See, e.g. , E.F. Hutton & Co. v. Brown, 305 F. Supp. 371, 383 (S.D. Tex. 1969) (―[A]ffida vits are vehicles for s . the pre entation of facts to the Court . . . .‖) 4 F ED . R. C IV . See P . 56(e)(2); SI Handling Sys., Inc. v. Heisley, 658 F. Supp. 362, 365 (E.D. Pa. 1986) (noting counter aff idavits unnecessary if opposing party shows genuine issues of a terial fact without them). Until December 1, 2009, Rule m 56 did not specifically provide for the filing of a responsive brief or memorandum of law . See Denton v. Mr. Swiss of Mo., Inc., 564 F .2d 236, 242 (8th Cir. 1977) (―Fed. R. Civ. P. 56 provides for service of a motion for su m mary judgment, an opportunity for service of opposing affidavits , and a hearing.‖ (emphasis added)). ome purport to require, the Nevertheless, many federal district courts have permitted, and s submission of responsive briefs under local rules or practices. , Kistner , 579 F.2d at 1006 E.g. (stating supporting memoranda of law normally a c company both motion and response). 5 Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000) (describing moving party‘s See obl i gation to show non - moving party cannot carry its burden at trial); McLaughlin v. Liu, 849 F.2d 1205, 1206 n.3 (9th Cir. 1988) (―[I]t is well - established t hat a party opposing summary judgment may rely on material already on file in the case.‖). A nonmoving party may avoid
3 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 45 201 In outlining the procedure to be followed in summary judgment proceedings, Rule 56 recently was amended, effective December 1, 2009, to s submission of a reply provide ‘ for the first time for the moving party 6 Local rules of practice in a number of jurisdictions were, and brief. 7 r On the other hand , e main, similarly silent with respect to reply briefs. many courts routinely permit the submission of reply briefs, often under a 8 The opportunity to reply enables local rule authorizing such submissions. e moving party to respond to the arguments asserted in opposition to its th 9 motion. The moving party may also provide clarification of its own 10 ments in its reply. Allowing the moving party to have the final word u arg summary judgment without disputing the moving party‘s evidence if, for example, reasonable awn from that evidence. See Rommell v. Auto. minds could differ on the inferences to be dr Racing Club of Am., Inc., 964 F.2d 1090, 1093 (11th Cir. 1992) (―[I]f reasonable minds might differ on the inf rences arising from undisputed facts, then summary judgment would be e e less, a improper.‖). Neverth nonmoving party rarely will elect to run ―the risk of a grant of ing to disclose the evidentiary basis for its claim.‖ Pure Gold, Inc. v. l summary judgment by fai n tex (U.S.A.), Inc., 739 F.2d 624, 627 (Fed. Cir. 1984). Sy 6 ED . See R. C IV . P . 56(c)(1)(C) (effective Dec. 1, 2009). Prior to the 2009 amendments, F r ty‘s submission of a reply brief. Rule 56 did not provide for the moving pa Beaird v. Seagate See Tech., Inc., 145 F.3d 1159, 1164 (10th C ir. 1998) (―Rule 56 neither authorizes nor forbids a reply g brief by the party moving for summary jud ment.‖); Int‘l Union, United Auto. Workers of Am. v. Keystone Consol. Indus., Inc., 782 F.2d 1400, 1408 (7th Cir. 1986), withdrawn on reh’g , 793 F.2d 810 ( 7th Cir. 1986) (Coffey, J., dissenting) (observing that Rule 56 ―fails to mention . . . reply briefs‖). 7 See, e.g. , Nat‘l Ecological Found. v. Alexander, 496 F.3d 466, 477 (6th Cir. 2007) (―Wes t e rn District of Tennessee Local Rule 7.2 does not provide for a reply brief when filing motions in civil cases . . .‖); Pigott v. Sanibel Dev., LLC, No. 07 - 0083 - WS - C, 2008 WL . es create an 2937804, at *5 (S.D. Ala. July 23, 2008) (observing that no local or federal rul ―absolute right to submit a reply brief‖). 8 , Wright v. Murray Guard, Inc., 455 F.3d 702, 714 (6th Cir. 2006) (―The decision See, e.g. f relies on the interpretation and application of local to grant a motion for leave to file a reply brie rules and l see also Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1192 o cal practice.‖); ―[T]he [local] Rule says . . . n.6 (10th Cir. 2006) ( ̳ [t]he moving party may file a written reply mem orandum.‘‖ (quoting D.N.M. R. 56.1(b))); Glass v. Crimmins Transfer Co., 299 F. Supp. 2d 878, 881 (C.D. Ill. 2004) (―[T]he Local Rules of this court do solicit reply briefs as part of the briefing schedule in su mary judgment motions.‖ (referring to CDIL - L R 7.1(D)(3)); Podger v. m Gulfstream Aerospace Corp., 212 F.R.D. 609, 609 n.3 (S.D. Ga. 2003) (―Permitting reply briefs . . . is not a new idea.‖); Gen. Star I n dem. Co. v. Sherry Brooke Revocable Trust, 243 F. Supp. 2d 605, 621 (W.D. Tex. 2001) (referring to reply briefs as ―permissive do c uments‖ and asserting that court‘s practice is to ―consider reply briefs, if timely filed, but not to await the filing of a reply before ru ing‖). l 9 See City of Sioux City, 258 F. Supp. 2d 976, 983 n.2 (N.D. Iowa 2003) (―[T]he Millage v. . . . to address ̳newly purpose of a reply is decided authority or to respond to new and - unanticipated arg u ments made in the resistance.‘‖ (quoting N.D. I OWA C IV . R. 7.1(g))); Travel ers Ins. Co. v. Buffalo Reinsurance Co., 735 F. Supp. 492, 495 (S.D.N.Y. 1990), vacated on other grounds , 739 F. Supp. 209 (S.D.N.Y. 1990) (allowing moving party to submit reply papers ―to avoid gi v ing an unfair advantage to the answering party who . . . a rgue[d] . . . previously unforeseen i s sues‖). 10 See, e.g. , Healthpoint, Ltd. v. Stratus Pharms., Inc., 273 F. Supp. 2d 871, 880 (W.D. Tex.
4 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 46 UFFOLK depth consideration of the motion on these matters may facilitate the in - 11 bly inherent to summary judgment. argu a 12 However, in the past, not all courts permitted reply briefs. Even when a reply brief is allowed, the court might not permit the moving party to include additional evidence in suppo rt of its motion for summary 13 ment. Regardless, the submission of reply affidavits is relatively jud g 14 common in summary judgment proceedings. Notably, nothing in the r fy its arguments on summary judgment); 2001) (summarizing that moving pa ty filed reply to clari Soler v. G & U, Inc., 138 F.R.D. 47, 49 n.2 (S.D.N.Y. 1991) (finding defendants should have clarified their position in reply brief after reading oppo s ing briefs). 11 - In re Large Scale Biology Corp., No. 06 - See, e.g. - A 11, 2007 WL 2859782, at *1 , 20046 (Bankr. E.D. Cal. Sept. 25, 2007) (―[T]he rules of this court, indeed, the law and motion rules of most courts, permit the moving party, not the respondent, to h ave the last word.‖); Providence v. Hartford Life & Accident Ins. Co., 357 F. Supp. 2d 1341, 1345 n.4 (M.D. Fla. 2005) (noting that reply brief helped court analyze dispute); Kirkpatrick v. Gen. Elec., 969 F. Supp. 457, 459 n.1 (E.D. Mich. 1997), aff’d 2 F.3d 873 (6th Cir. 1999) (―[I]t is this court‘s practice to allow the , 17 , 299 F. Supp. 2d at 881 (stating reply moving party to ̳have the last word.‘‖); see also Glass e rits.‖). See generally brief‘s purpose is to ―assist the court in ruling on motions based on the m Viero court described the Viero v. Bufano, 925 F. Supp. 1374, 1380 (N.D. Ill. 1996). The interplay between l o cal motion rules and Rule 56 as follows: Implicit in Rule 56 . . . is the notion that the movant gets to take its best shot at showing that there is no genuine issue of material fact, and the nonmovant then gets its e nuine issues of material fact do indeed exist. Movant then best shot to show that g gets one last chance to respond to what the nonmovants have added. Id. 12 See, e.g. , La Reunion Francaise, S.A. v. Christy, 122 F. Supp. 2d 1325, 1326 (M.D. Fla. 1999) (noting Middle District of Florida does not allow reply briefs without specific permission from court); Shaw v. R.J. Re ynolds Tobacco Co., 818 F. Supp. 1539, 1541 (M.D. Fla. 1993), , 15 F.3d 1097 (11th Cir. 1994) (denying defendant‘s request for leave to file a reply because aff’d ―it would be unfair for [d]efendant to get a ̳second bite at the apple‘‖). The discretion ves ted in the district courts in this regard is not altered by the D e cember 1, 2009 amendment to Rule 56. See ED . R. C IV . P . 56(c)(1) (providing that the Rule‘s provision for a reply brief applies ―unless . F . . the court orders otherwise‖). Indeed, ―[t]he presumptive timing rules are default provisions that may be altered by an order in the case or by local rule . . . . Scheduling orders tailored to the needs of the specific case, perhaps adjusted as it progresses, are likely to work better than default ru les.‖ F ED . R. C IV . P . 56 advisory committee‘s note (2009 amendments). 13 Compare Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. 208, 210 (D.N.M. s favor the inclusion of new evidence in reply briefs), 2005) (observing that courts generally di Baugh v. City of Milwaukee, 823 F. Supp. 1452, 1456 (E.D. Wis. 1993), with , 41 F.3d 1510 aff’d (7th Cir. 1994) (―It seems absurd to say that reply briefs are allowed but that a party is proscribed f rom backing up its arguments in reply with the necessary evidentiary material.‖). 14 See, e.g. , Krause v. Buffalo and Erie County Workforce Dev. Consortium, Inc., 426 F. Supp. 2d 68, 91 (W.D.N.Y. 2 005) (noting defendants‘ submission of a reply affidavit disputing ―statements made in opposition to summary judgment‖); Thornton v. Mercantile Stores Co., 13 F. Supp. 2d 1282, 1284 n.1 (M.D. Ala. 1998) (noting defendant‘s argument that ―attaching evidence to reply briefs is a routine practice in federal courts‖); McCulley v. Allstates Technical Servi c es, No. Civ.A. 04 - 0115 - WS - B, 2005 WL 1475314, at *9 n. 24 (S.D. Ala. June 21, 2005) (referring to party‘s submission of affidavit with its reply brief).
5 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 47 201 Federal Rules expressly authorizes or prohibits the submission of such 15 a ter ial. evidentiary m adopt and amend rules Rule 83 authorizes a district court to ― 16 ‖ in accordance with the federal rules. g While some o verning its practice federal district courts have attempted to fill the void in the Federal Rules , others lack rules addressing the through the enactment of local rules 17 i Moreover, the local rules that do exist are not consistent in their s sue. 18 As a result, there is considerable uncertainty treatment of the issue. not to mention litigants among the courts concerning the propriety of – – 19 reply affidavits in summary judgment proceedings. This uncertainty has 20 generated considerable litigation over the propriety of reply affidavits. 15 Rule 56 ―discusses only affidavits in support of or in opposition to a motion for summary fidavits.‖ , 823 F. Supp. at 1456 ; see also judgment,‖ and does ―not provide for reply a f Baugh - 05 (7th Cir. 2000) (―Rule 56 merely pr o vides for Oto v. Metro. Life Ins. Co., 224 F.3d 601, 604 the submission of affidavits in support of or opposition to a motion for summary judgment.‖); - 04 - 0452 - FVS, 2008 WL 2074035, at *7 (E. D. Wash. Atchley v. Pepperidge Farm, Inc., No. CV May 14, 2008) (―Rule 56 does not specifically address the propriety of evidence submitted for the . first time with reply briefs . . .‖); Cont‘l Tire N. Am., Inc. v. Transp. Solutions, Inc., No. 3:05cv231, 2007 WL 4287520, at *7 (W.D.N.C. Dec. 4, 2007) (asserting that Rule 56 Lake Country Invs., No. m . . ̳ supporting‘ and ̳opposing‘ affidavits‖); ―conte plates only . In re 99 - 20287, 2001 WL 267475, at *4 (Bankr. Idaho Mar. 19, 2001) (observing that Rule 56(c) ―does not a d dress a movant‘s reply affida vits‖). 16 F ED . R. C IV . P. 83(a)(1). ―[A] district court . . . may adopt and amend rules governing its practice. A local rule must be consistent with – but not duplicate – federal statutes and les . . .‖ Id. ru . 17 Compare Clinkscales v. Chevron U.S.A., Inc., 831 F.2d 1565, 1568 n.8 (11th Cir. 1987) and ts.‖), (―[T]he local rule clearly allows a movant to file a reply brief and supplemental affidavi Pike v. Caldera, 188 F.R.D. 519, 530 (S.D. Ind. 1999) (explaining local rule expl i citly allows ―for with Parkes v. the submission of additional evidence accompanying a movant‘s reply brief‖), County of San Diego, 345 F. Supp. 2d 1071, 1080 (S.D. Cal. 2004) (noting local rules do not e and Baugh , sp cifically address the filing of ―exhibits and declarations in support of a reply‖), . . 823 F. Supp. at 1456 (―Although the local rule provides for briefing nothing at all is said . about reply affidavit s.‖). 18 Compare Dracz v. Am. Gen. Life Ins. Co., 427 F. Supp. 2d 1165, 1168 n.4 (M.D. Ga. 2006) (―Local Rule 7.3 allows a summary judgment movant to file ̳any desired reply brief, argument or affi d a vit . . . .‘‖), with Westar Energy, Inc. v. Lake, 493 F. Supp. 2d 1126, 1130 n.2 (D. Kan. 2007) (―[R]ecitation of additional facts on reply does not comply with D. Kan. Rule 56.1 and the Court thus does not consider them.‖). 19 See Vais Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir. 2004) (―[W]e have not compr e hensively identified all the circumstances under which a district court may rely on . . . brief . . . .‖); Parks v. Hillsdale Cmty. Health evidence presented for the first time in a reply Ctr., No. 1:98 - CV - 204, 1999 WL 893852, at *2 (W.D. Mich. May 20, 1999) (choosing not to consider new r ply brief evidence without determining whether such evidence is allowed); United e States v. Int‘l Bus. M achs. Corp., 66 F.R.D. 383, 384 (S.D.N.Y. 1975) (noting s i lence of Federal Rules on reply papers leading to ―a great deal of confusion‖). 20 See, e.g. , Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 n.* (7th Cir. 1996) (stating issue on appeal was consideration of an affidavit submitted with summary judgment r e ply); Smith v. Burns Clinic Med. Ctr., P.C., 779 F.2d 1173, 1175 n.6 (6th Cir. 1985) (noting plaintiff‘s ―vigorous challenge‖ of lower court‘s co n sideration of affidavits attached to reply
6 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 48 UFFOLK This article seeks to illuminate the intricacies of reply affidavit rule 21 The article begins variations. with a discussion of the federal procedural 22 rules that bear most directly upon the propriety of reply affidavits. The article then explores methods for avoiding the need to submit reply 23 vits. falls of Next, the authors address the potential strategic pit a affid i reply aff davits, regardless of the procedural propriety of submitting 24 them. Finally, the article discusses the effect of reply affidavits upon the c tive of promoting the prompt and efficient resolution of Rule 56 obje 25 The a cases. u thors ultima tely conclude that affidavits should rarely, if ever, be submitted with a reply brief in support of a motion for summary 26 The moving party instead should use its reply to call to the judgment. s attention any shortcomings in the opposing party s fac tual ‘ ‘ court 27 submissions and to refine the legal arguments supporting its motion. THAT MAY BE INVOKED WHEN II. PROCEDURAL RULES IDAVITS IN SUPPORT O F SUMMARY SUBMITTING REPLY AFF JUDGMENT Federal Rule 56(c) and Corresponding Local Rules A. Rule 56 of the Federal R ules establishes the general structure for 28 summary judgment proceedings. However, until the amendment to the brief); Shepard v. Courtoise, 115 F. Supp. 2d 1142, 1145 (E.D. Mo. 2000) (describing plaintiff‘s argument that court should strike defendant‘s reply affidavits). 21 There appears to have been no prior academic consideration of this particular issue. For a strategic discussion of the right to reply generally, see Jason Vail, To Reply or Not to Reply : When Having the Last Word Doesn’t Cut It , 61 O R . S T . B. B ULL . 33 (Dec. 2000). Several other scholars have addressed the use of affidavits in summary judgment proceedings. See Jeff . m , 46 B AYLOR L. R EV Attacking Errors in Affidavits Used as Summary Judgment Proof Ra bin, ng case law history of use of reply affid a vits); Gwen B. Tromley, 789, 791 (1994) (recounti Pittman v. Atlantic Realty: Affidavits and the Search for the Genuine Dispute of Material Fact, ALT . L.F 31 U. B - 34 (2000) (observing inconsistencies in courts‘ treatment of reply . 30, 33 aff davits in support of summary judgment). i 22 See infra Part II and accompanying text (discussing procedural rules supporting summary judgment motions). 23 See infra Part III and accompanying text (exploring consequences of reply affidavit avoi d ance). 24 See infra Part IV and accompanying text (emphasizing strategic risks in submitting reply affidavits). 25 See infra Part V and accompanying text (recommending limited use of reply affidavits). 26 Part VI and acc ompanying text (summarizing caveats accompanying reply See infra i davits). aff 27 See infra Part VI and accompanying text (outlining advantages and risks of reply affid a vits). 28 42 (9th F ED . R. C IV . See P. 56 (2009); see also Hughes v. United States, 953 F.2d 531, 541 -
7 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 49 201 rule that became effective December 1, 2009, the rule did not address the ‘ s submission of briefs or memoranda in opposition to the opposing party 29 s submission of reply papers. Instead, the ‘ motion, or the moving party submission of responsive and reply memoranda was, and largely remains, ‘ governed by local court rules enacted pursuant to the district courts 30 Some of these r local rules require the filing of ity under Rule 83. autho 31 sive briefs well in advance of any hearing on the motion. In respo n addition, a number of district courts purport to require the opposing party to submit its controverting affidavits at the same time it files its opposin g 32 brief. These requirements presumably ensure that the moving party has ‘ s legal and factual an opportunity to formulate a reply to the opposing party 33 e fore the court rules on the motion. assertions b Cir. 1992) (relying on Rule 56 in deciding summary judgment motion). Some district courts have See Robertson v. Am. Ai r lines, Inc., 239 adopted local procedural rules to suppl ement Rule 56. F. Supp. 2d 5, 7 (D.D.C. 2002) (stating ―[l]ocal Civil Rule 56.1 supplements Rule 56 by setting forth specific procedures for the parties to follow in moving for or opposing summary and accompanying text (noting inconsiste notes judgment‖); - 8 supra n cies in local reply brief 7 filing rules). 29 Cia. Petrolera Caribe , Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 409 (1st Cir. 1985) See (―Rule 56 does not create an explicit timetable for replies . . .‖); Boon Partners v. Advanced Fin. . C n F ED Co R. cepts, Inc., 917 F. Supp. 392, 394 (E.D.N.C. 1996) (― IV . P. 56(c) establishe s a time . for filing responsive affidavits, not the response to the motion itself.‖); cf. F ED . R. C IV . P. 56 (2009) ―[A] m o vant may file a reply within 14 days after the response is served.‖). ( 30 , Taylor v. Lifetouch Nat‘l notes 17 - 18 and accompanying text; see also, e.g. S ee supra Sch. Studios, Inc., 490 F. Supp. 2d 944, 950 (N.D. Ind. 2007) (discussing local rules‘ time frames and page li mits applicable to response and reply briefs). The December 1, 2009, amendment to Rule 56(c) expressly preserves the authority of the district courts to implement local rules appl i cable to summary judgment proceedings by providing times for response and r eply briefs r wise.‖ F ED . R. ―unless a different time is set by local rule or the court orders othe IV . P . C 56(c)(1). 31 E.g. . 2006) , Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1118 (E.D. Cal - 230(c)] of this court, similar to most others . . (―[T]he Local Rule [78 . require the non - moving party to file its o p position to the motion fourteen days before, and the moving party‘s reply seven days before, the date of the hearing on the moti on.‖). 32 See, e.g. Useden v. Acker, 947 F.2d 1563, 1572 (11th Cir. 1991) (observing that affidavits , accompanying a summary judgment response must be filed with a ―memorandum of law‖ (di cussing S .D. F LA . R. 10C, J)); Day v. N. Ind. Pub. Serv. Co., 987 F. Supp. 1105, 1108 (N.D. s aff’d , 164 F.3d 382 (7th Cir. 1999) (i n Ind. 1997), - terpreting Local Rule 56.1 as allowing non moving party to file aff i davits with reply brief); Shealy v. UNUM Life Ins. Co. of Am., 979 F. Supp. 395, 400 (D.S.C. 1997) (―The local rules of this district require that responses to motions be filed wit h in fifteen days of the filing of a motion. Absent extenuating circumstances, any supporting mat e rials should be filed at that ti me.‖ (citations omitted)). 33 , Boyd v. City of Oakland, 458 F. Supp. 2d 1015, 1023 n.3 (N.D. Cal. 2006) (noting E.g. local rule requires opposing papers be su b mitted ―21 days before a scheduled hea ring . . . to allow the moving party [time] to respond‖). Pfeil v. Rogers, 757 F.2d 850, 857 - 58 (7th See generally Cir. 1985) (indicating local rule filing deadlines allow ―moving party to respond to all of the resisting party‘s arguments in its reply bri ef‖); Burch , 433 F. Supp. 2d at 1118 (requiring submission of reply brief fourteen days before the summary jud g ment hearing date).
8 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 50 UFFOLK only to However, local summary judgment rules are enforceable 34 the extent that they do not conflict with Rule 56. Until recently, Rule 56 provided that any affidavits submitted in opposition to a summary 35 The jud g ment motion need only be served before the day of the hearing. 36 , suggests that Wilson v. Sysco Food analysis in Services of Dallas, Inc. this aspect of Rule 56 may supersede local rules purporting to require n no movants to submit the opposing affidavits sufficiently in advance of the 37 hearing to enable the moving party to reply to that evidence. Wilson plaintiff in The submitted an affidavit in opposition to the defendants ‘ summary judgment motion approximately two months after the 38 established deadline for submitting her opposing brief. court - Rather than attempting to reply to the plaintiff s affida vit, the defendants moved to ‘ 39 strike the affidavit on the grounds that it was untimely. The defendants argued that the local rule required that the plaintiff file the affidavit r ‘ s concu rently with, or at least by the deadline for submitting, the plaintiff 40 41 Many federal district courts follow this practice. oppo s ing brief. Wilson refused to strike the plaintiff ‘ s affidavit, The court in 34 83(a)(1) only permits the adoption of local rul ED R. C IV . P. F . es that are consistent with the federal rules. ―A local rule must be co n sistent with – but not duplicate – federal statutes and rules . . . .‖ F ED . R. C IV . P. 83(a)(1) (2007). See generally Henry v. Gill Indus., Inc., 983 F.2d 943, 949 (9th Cir. 1993) ( ―Federal Rule of Civil Procedure 83 invites the district courts to but only insofar as they are not inconsistent with the federal rules formulate local rules, selves .‖ (emphasis added)). the m 35 R. C F . P. . 56(c) (2007) (―An opposing party may serve opposing affidavits before the ED IV hearing day.‖). Although this deadline for the service of opposing affidavits is eliminated from the version of Rule 56(c) effective December 1, 2009, the amended versi on of Rule 6(c), also e f fective December 1, 2009, still permits an opposing affidavit to be served as little as seven days See F ED . before a hearing. R. C IV . P . 6(c)(2), 56(c). 36 3 (N.D. Tex. 1996). 940 F. Supp. 100 37 See id. at 1008 (―opposing affidavits maybe be filed up until one day before the hearing‖). 38 Id. gh it is not clear whether the briefing deadline in Wilson was at 1008. Althou esta b lished by a local rule or a case - specific court order, the Rule 83 analysis is the same in either sit u ation. See Old Time Enters., Inc. v. Int‘l Coffee Corp., 862 F.2d 1213, 1217 (5th Cir . 1989) (―Rule 83 provides for promulgation of local court rules and orders that regulate local practice in any manner not inconsistent with the federal or local rules.‖ (emphasis added)). 39 Wilso n , 940 F. Supp. at 1008. The affidavit constituted the plaintiff‘s ―sole response‖ to the defendants‘ motion. Id. at 1006 n.1. Although unusual, a nonmoving party‘s failure to b mit a legal brief in opposition to a summary judgment motion does not nece ssarily guarantee su c su See Kinder v. Carson, 127 F.R.D. 543, 545 (S.D. Fla. 1989) (―[S]ummary cess of the motion. o judgment may not be appr - movant fails to file an opposing memorandum.‖). priate even if a non 40 Wilson , 940 F. Supp. at 1008. 41 See Am. Sterilizer Co., 984 F. Supp. 891, 913 - Krouse v. aff’d , 126 15 (W.D. Pa. 1996), F.3d 494 (3d Cir. 1997) (striking an o p posing affidavit submitte d four weeks after deadline for - response brief - CV - 22322 ); Christian Methodist Episcopal Church v. Montgomery, No. 4:04 RBH, 2007 WL 172496, at *5 n.6 (D.S.C. Jan. 18, 2007) (observing ―customary practice‖ to file affidavits simult a neously with response to motion for summary judgment).
9 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 51 201 ing that under the federal rules, opposing affidavits need not be filed d hol 42 Rather, the Wils on court held that Rule 56(c) with a responsive brief. permitted the nonmoving party to submit its affidavits in opposition to the 43 Because no hearing on the motion up until the day before the hearing. summary judgment motion had been scheduled when the defendants ‘ t i plaintiff subm ted her affidavit, the court held that the affidavit was timely 44 and could be considered in deciding the motion. Wilson court also recognized that Rule 56 did not contain a The comparable provision permitting the moving party to submit affidavits 45 port ing its motion up until the day before the hearing. su p Instead, Rule 56 required that the opposing party be given notice of the filing of the motion and, by implication, any supporting affidavits, at least ten days in 46 The purpose o f this requirement is to give the advance of the hearing. opposing party an opportunity to submit its own controverting affidavits or other re ponsive evidence in order to demonstrate the existence of a s 42 , 940 F. Supp. at 1008 (citing F ED . R. C IV . P. 6( d) [current version at 6(c)(2) See Wilson cf. F . R. C IV . P. 56(c)); ED Myers v. Bennett Law Offices, 238 F. Supp. 2d 1196, 1205 (2009)] and (D. Nev. 2002) (noting Rule‘s allowance of opposition affidavits to be filed up until the day b e fore the hearing); Friends of the Wild Swan, Inc. v. U.S. Envtl. Prot. Agency, 130 F. Supp. 2d 1184, 1197 (D. Mont. 1999) (refusing to st rike affidavits ―filed several months after the deadline for submitting summary judgment briefs‖). 43 See Wilson , 940 F. Supp. at 1008 (citing F ED . R. C IV . P. 6 (d) [current version at F ED . R. C IV P. 6(c)(2) (2009)]; F ED . R. C IV . P . 56(c)); see also United States v. Brandt, 8 F.R.D. 163, 164 . (D. Mont. 1948) (―Rules 6(d) and 56(c) require opposing affidavits to be served not later than one day before the hearing . . . .‖). 44 Wilson cf. Advest, Inc. v. Rader, 743 F. Supp. 851, 855 n.15 (S.D. , 940 F. Supp. at 1008; Fla. 1990) (denying motion to strike aff i davits in opposition in lieu of response brief day before hearing). However, a nonmoving party that withholds its affidavits until a hearing is scheduled See, e.g. , risks not being heard at all if the court rules on the motion without holding a hearing. Jetton v. McDonnell Douglas Corp., 121 F.3d 423, 425 (8th Cir. 1997) (observing counsel ―c aught off guard‖ when lower court granted summary judgment without scheduling oral u Birdsong v. Olson, 708 F. Supp. 792, 794 (W.D. Tex. 1989) (noting court need not arg ment); hold a hearing). 45 Se e Wilson , 940 F. Supp. at 1008 (asserting ―an affidavit su p porting a motion for summary judgment must be filed with the m o tion‖ (citing F ED . R. C IV . P . 6(d) [current version at F ED . R. C IV P . 6(c)(2) (2009)]) ; see also Cheung v. Hamilton, 298 F.2d 459, 46 0 (1st Cir. 1962) (noting . new evidence may not be introduced ―at the last minute when there is no opportunity to rebut‖); Cont‘l Tire N. Am., Inc. v. Transp. Solutions, Inc., No. 3:05cv231, 2007 WL 4287520, at *7 ng aff i davits are allowed to be filed after the motion (W.D.N.C. Dec. 4, 2007) (noting only opposi g ment). for summary jud 46 See F ED . R. C IV . P. 56(c) (2007) (―The motion must be served at least 10 days before the day set for the hearing.‖). While the rule ―does not speak in terms of notice,‖ courts have n nell v. recognized that ―the ten day service requirement is actually a notice provision.‖ McDo ; see also Osbakken v. Venable, 931 F.2d 36, 37 (10t h Estelle, 666 F.2d 246, 252 (5th Cir. 1982) Cir. 1991) (recognizing court ca n not grant summary judgment because motion and affidavits served eight days before hearing); Alghanim v. Boeing Co., 477 F.2d 143, 148 - 49 (9th Cir. 1973) (hol d ing moving party violated ten day notice requirement by failing to file timely affidavits).
10 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 52 UFFOLK 47 genuine issue of material fact for trial. Thus, the opposing party cannot t ake full adva n tage of this opportunity unless it receives notice of the evidence supporting the motion that it is required to refute when it submits 48 dence. i its controverting ev The fact that the opposing party was entitled to at least ten days - one days) to prepare and file its controverting (and now ha s twenty a affid vits and may withhold the affidavits until just days before the hearing, su g gests that the rules ‘ drafters did not contemplate the routine 49 Indeed, by waiting u submission of reply affidavits. ntil shortly before the hearing to submit its affidavits and mailing copies to the moving party in accordance with Rule 5(b), the opposing party may actually prevent the 50 s reply. ‘ Federal courts are not particularly receptive to such moving party 51 . Nevertheless, the fact that it was, until very recently, permitted a tactic plicable rules is a persuasive indication that the drafters intended by the a p s ing party to be the last party to submit evidence in connection the oppo 52 mary judgment motion. with a su m 47 See generally Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980) e quirement). (discussing fairness concerns behind notice r 48 See Hooks v. Hooks, 771 F.2d 935, 946 (6th Cir. 1985) (explaining that supporting a cf. Seay v. affid vits give nonmoving party notice of ―what facts she need[s] to controvert‖); 339 F.3d 454, 481 (6th Cir. 2003) (―The purpose of Rule 56(c) is to afford Tenn. Valley Auth., the nonmoving party notice and a reasonable o portunity to respond to the moving party‘s p summary judgment motion and suppor t ing evidence. ‖ (emphasis added)). 49 See F ED . R. C IV . P. 56(c) (2009); F ED . R. C IV . P. 56(c) (2007); F ED . R. C IV . P. 6(d) (2009); see also Fed. Refinance Co. v. Klock, 352 F.3d 16, 32 (1st Cir. 2003) (―Rule 56(a) anticipates ten - that a party opposing summary judgment will have a day window within which to prepare and present evidence in opposition.‖). 50 ED . R. C IV . See P . 5(b)(2) (2007) (providing acceptable m e thods of service). In Marshall F 50 (C.D. Cal. 1993), rev’d , 44 F.3d 722 (9th Cir. 1995), for example, the v. Gates, 812 F. Supp. 10 Id. at 1056 plaintiff served its opposition via mail shortly before the summary judgment hearing. f‘s opposing n.18. As a result, the defendants ―had not even viewed or received any of plaintif n tiff‘s papers by the hearing date,‖ and thus ―were left wholly unprepared to argue against plai at 1056 ; see also Coastal States Gas Corp. v. Dep‘t of Energy, 644 F.2d 969, 980 position.‖ Id. opposing affidavit); Paul Yowell, Note, (3d Cir. 1981) (allowing last minute submission of Through Rain, Snow, Heat, or Dark of Night: Does Private Express Delivery Constitute Service by Mail Under Federal Rule of Civil Procedure 5? B AYLOR L. R EV . 1147, 1150 (1994) , 46 (pointing out strategic reasons for service by mail). 51 See, e.g. , Liberty Mut. Ins. Co. v. Star Indus., Inc., No. 96 - CV - 0644 JG, 1997 WL 1068692, at *4 n.4 (E.D.N.Y. ( ―[D]efendant‘s submission in opposition to Oct. 10, 1997) tiff‘s motion was not served or filed until the evening prior to oral argument. plain g ly . . Accordin plaintiff should be afforded the opportunity to submit a reply before the motion . for su m mary judgment is finally decided.‖). See generally Marshall , 812 F. Supp. at 1056 (―Respect for the jud i cial process is certainly a casualty of calculated delay.‖) . 52 See supra 42 – 51 notes see also Viero v. Bufano, 925 F. Supp. 1374, 1380 (N.D. Ill. 1996) ; (finding moving party disregarded u n derlying purpose of Rule 56 by attempting to add new facts in reply). The court in Viero noted that the moving party‘s reply included facts that could have been inclu ded in the initial filing. Id. This tactic left the nonmoving party with ―no ability to
11 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 53 201 The Requirements for Affidavit Submission under IV ED . R. C . . P. 6(c)(2) B F Rule 6(c)(2) Requires That Supporting Affidavits Be Served 1. ‖ a Motion ― With Reading Rule 56 in conjunction with Rule 6(c)(2) bolsters the view 53 that the rules drafters did not cont emplate reply affidavits. Like Rule 56, ‘ ‘ s right to submit affidavits in Rule 6(c)(2) confirms the moving party 54 p port of a summary judgment motion. Rule 6(c)(2) does not expressly su 55 (2) prohibit parties from submitting reply affidavits. However, Rule 6(c) any affidavits supporting the motion, which presumably ― ‖ does state that would include those that otherwise might be submitted with a reply, are to 56 ‖ be served the motion. ― with ― intended to This aspect of Rule 6(c)(2) indicates that the drafters de the nonmovant with a reasonable and meaningful opportunity to provi respond to the legal theories and facts as asserted by the party moving for 57 ‖ In particular, Rule 6(c)(2) contemplates that the summary judgment. moving party will present both the essence o f its legal arguments and any 58 evidence supporting those arguments at the time it makes its motion. This rule assures that the opposing party will have sufficient opportunity to e spond‖ to those additional facts. Id. r see also Precision Fabrics Group, Inc. v. Transformer ; Sales & Serv., Inc., 477 S.E.2d 166, 171 (N.C. 1996) (discussing N.C. R. C IV . P. 5(b)). See generally Cia. Petrolera Caribe, Inc. v. A co Caribbean, Inc., 754 F.2d 404, 410 (1st Cir. 1985) r (―The rules are structured to provide the nonmovant with substantially more time for filing affidavits than moving parties.‖). 53 . . R. F IV ED P. 6(c)(2) (―Any affidavit supporting a motion must be served with the See C ; see also motion.‖) Woods v. Allied Concord Fin. Corp., 373 F.2d 733, 734 (5th Cir. 1967) (indicating Rule 6(c)(2)‘ c tion with s predecessor, former Rule 6(d), ―should be read in conjun Rule 56(c)‖). 54 F ED . R. See C IV . P. 6(c)(2) (―Any affidavit supporting a motion must be served with the motion.‖); F ED . R. C IV . P. 56 (outlining pr o cedure for submitting briefs and affidavits in support of summary judgment). 55 IV . R. C ED . P. 6(c)(2); see also Balderston v. Fairbanks Morse Engine Div. of Coltec See F Indus. (noting absence of a ―blanket prohibition‖ of reply , 328 F.3d 309, 318 (7th Cir. 2003) aff davits); Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., 767 F. Supp. 1220, 1235 i rev’d on other grounds (S.D.N.Y. 1991), ] Rule 6(d) , 967 F.2d 742 (2d Cir. 1992) (―[Former addresses supporting and oppo s ing affidavits, and is silent as to the submission of reply affidavits.‖) . 56 See ED . R. F IV . P. 6(c)(2) . C 57 Burns v. Gadsden State Cmty. Coll., 908 F.2d 1512, 1517 (11th Cir. 1990) (emphasis added); see also McGinnis v. Se. Anesthesia Assocs., 161 F.R.D. 41, 42 (W.D.N.C. 1995) ( n ing purpose behind requirement of filing supporting affidavits s imultaneously with explai motion). 58 See Burns , 908 F.2d at 1517 (noting movant will present legal theories and assertions of fact at time it submits motion) .
12 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 54 UFFOLK s arguments and evidence before the court respond to the moving party ‘ 59 rules o n the motion. Rejecting Litigation by Ambush: 2. Tishcon Corp. v. Soundview Communications, Inc. 60 Tishcon Corp. v. Soundview Communications, Inc. discussed in 61 s predecessor, former Rule 6(d). ‘ some detail the impact of Rule 6(c)(2) on moved for partial summary judgment and The plaintiff in Tishc 62 ted supporting declarations with its motions. t The defendants submi objected to these submissions on the grounds that the declarations 63 n formation beyond the declarant contained factual i s personal knowledge. ‘ In response to this objection, the plaintiff submitted additional declarations with its replies in an effort to remedy the alleged deficiencies in its original 64 evidence. ‘ s reply The defendants then moved to strike the plaintiff a tions, arguing that the declar y were untimely because any affidavits supporting a summary judgment motion must be served with the motion 65 The defendants contended that because the reply declarations were itself. s motion, they would be submitted after they had responded to the plaintiff ‘ 59 See id. The court explained that the conjunction of former Rule 56(c) and former Rule 6(d) assured the non - moving party ten days to respond before the court takes the motion under Id. See also Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 410 advisement. (noting affidavits must be served with m o tion for summary judgment at least ten (1st Cir. 1985) before - moving party twenty - one days to days hearing). Now, Rule 56(c) provides the non e spond to the motion. See F ED . r R. C IV . P. 56(c)(1)(B) (2009). 60 No. 1:04 - CV - 524 - JEC, 2005 WL 6038743 (N.D. Ga. Feb. 15, 2005). 61 See id. at *7 - 9. 62 Id. at *2. The plaintiff submitted two motions, one addressing the defendants‘ potential dressing the merits of the defendants‘ counterclaims. d liability to the plaintiff, and the other a Id. The plaintiff also submitted supporting declarations instead of affidavits. Id. Pursuant to 28 U.S.C. § 1746, a ―declaration‖ made under penalty of perjury can be submitted in lieu of an davit in federal summary judgment proceedings. See Ceja v. United States, 710 F.2 d 812, 813 aff i n.* (Fed. Cir. 1983) (equating unsworn declaration with affidavit). 63 , 2005 WL 6038743, at *3; see also F See Tishcon Corp. . R. C IV . P. 56(e)(1) (―A ED su porting or opposing affidavit m ust be made on personal knowledge.‖) . p 64 Tishcon Corp. at *2 (―Apparently perceiv[ing] some merit in , 2005 WL 6038743, c defendants‘ motion to strike . . . plaintiff attached de w witnesses in its reply larations of three ne briefs . . . .‖). 65 See Tishcon Corp. , 2005 WL 6038743, at *2, *7 (citing F ED . R. C IV . P . 6(d) [current . 6(c)(2) (2009)]); ve F ED . R. C IV . P sion at cf. S. Concrete Co. v. U.S. Steel Corp., 394 F. Supp. r 362, 381 (N.D. Ga. 1975) (―Rule 56(e) states that the affidavit submitted in support of . . . the motion for summary judgment, rather than a subsequent affidavit , ̳shall show affirmatively that the a f fiant is competent to te stify to the matters stated therein.‘‖ (emphasis added) (quoting F ED . . R. C IV . P . 56(e) [current version at F ED R. C IV . P . 56(e)(1) (2009)])).
13 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 55 201 66 s consideration of those declarations. ‘ unfairly prejudiced by the court to insure that The court agreed, noting that Rule 6(d) was intended ― the party opposing a motion for summary judgment be given sufficient time the moving party, thereby avoiding any to respond to the affidavits filed by 67 ‖ The court concluded that its acceptance of the undue prejudice. tiff plai s reply declarations would undermine this objective, stating: n ‘ Justice is not served by allowing a moving party to unfairly r prise and pre judice the non - movant by producing su evidence of new, substa n tive facts at the last minute when - movant to respond. there is no opportunity for the non This is precisely the kind of trial by ambush that the 68 federal rules summarily reject. 3. Replying To Fac tual Matters Initiated by the Nonmovant: Not A m bush, But Still Not Within the Contemplation of Rule 6(c)(2) ‘ s declarations, the Despite its refusal to consider the movant Tis h con court indicated that the submission of reply affidavits might be appr priate to address factual matters ― initiated ‖ by the opposing party in o 69 sponse to a summary judgment motion. its r The court in Litton e 66 See Tischcon Corp. , 2005 WL 6038743, at *8; cf. Gam etech Int‘l, Inc. v. Trend Gaming Sys., L.L.C., 380 F. Supp. 2d 1084, 1092 (D. Ariz. 2005) (explaining movants typically not permitted to su b mit evidence after response is filed because ―such a late submission would ‖). preclude respondent from addressing [it] 67 , 2005 WL 6038743, at *8; , 380 F. Supp. 2d at 1092 see also Gametech Int’l Tishcon Corp. (reasoning Rule 6 is intended to prevent moving party from offering new evidence after ―[I]f a movant is permitted to proffer new evidence after the respo n dent opposition resp onds). address the evidence and . . . F ED . has filed its opposition papers, the respondent cannot C IV . P. R. 6 . . . [is] intended to address that problem.‖ ; see also RepublicBa nk Dallas, N.A. v. First Id. Wis. Nat‘l Bank of Milwaukee, 636 F. Supp. 1470, 1472 (E.D. Wis. 1986) (―[Rule 6] is designed to prevent movants from springing new facts on the opposing party when it is too late for the party to contest them.‖). 68 Tishcon Corp. 2005 WL 6038743, at *8. The court recognized that it could have min i mized the potential prejudice to the defendants by providing them with an opportunity to Id. ―reply to plaintiff‘s reply.‖ at * 8 - 9. However, the court rejected this approach on the grounds that it would significantly expand the time and resources necessary to resolve summary judgment m o tions. See id. For a further discussion of this issue, see infra notes 197 - 205 and accompanying text. 69 See Tishcon Corp. , 2005 WL 6038743, at *8; see also Kershner v. Norton, No. 02 - 1887(RMU), 2003 WL 21960605, at *2 (D.D.C. Aug . 14, 2003) (―[F]iling an affidavit with a r e ply is appropriate when the affidavit addresses matters raised in the opposition. Such an approach fulfills the purpose of Rule 6(d), which is to avoid unfair surprise and permit the court to resolve motions on the merits.‖ (cit a tions omitted)).
14 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 56 UFFOLK 70 Industries, Inc. v. Lehman Bros. Kuhn Loeb, Inc. reached a similar ‘ fidavit submitted conclusion by r s argument that an af jecting the plaintiff e 71 ‘ The Litton court s reply was untimely. with the moving defendant clearly ‖ addressed supporting and opposing acknowledged that Rule 6(d) ― s silence as to reply affidavits allowed such affidavits, but held that the rule ‘ address new material issues raised in the opposition so papers when they ― 72 Because the ‖ as to avoid giving unfair advantage to the answering party. defendant ‘ s reply affidavit only responded to matters asserted in opposition to its motion, the court concluded that the repl y affidavit should be 73 Several other courts have found Litton ’ s analysis considered. 74 persuasive. Litton If the analysis in is correct, Rule 6(c)(2) is not inflexible but ‘ s instead allows courts to accept affidavits submitted with a moving party 75 er limited circumstances. Nevertheless, because until recently reply und 70 767 F. Supp. 1220, 1234 - rev’d on other grounds , 967 F.2d 742 (2d 35 (S.D.N.Y. 1991), Cir. 1992). 71 , 767 F. Supp. at 1234 - 35 (citing F ED . R. C IV . P . 6(d) [current version at F ED . Litton R. C IV . P . 6(c)(2) (2009)]). 72 Id. Travelers Ins. Co. v. Buffalo Reinsurance Co., 735 F.Supp. 492, 495 at 1235 (citing , vacated in part on other grounds, (S.D.N.Y. 1990) )). The 739 F.Supp. 209 (S.D.N.Y.1990 Litton court appears to have been influenced by an applicable local rule that ―e x pressly provide[d] for the submission of ̳reply papers‘ at the option of the moving party.‖ Id. (quoting S.D.N.Y. C IV . R. 3(c)(2)). 73 Id. 74 See, e.g. - 27 , Bayway Ref. Co. v. Oxygenated Mktg. & Trading, AG, 215 F.3d 219, 226 (relying on abuse of discretion standard to affirm district court‘s ruling on Litton (2d Cir. 2000) summary judgment) ; ADR/JB Corp. v. MCY III, Inc., 299 F. Supp. 2d 110, 116 (E.D.N.Y. 2004) reply brief b ased on reasoning in Litton ) ; Baugh v. City of (denying plaintiff‘s motion to file sur - 57 (E.D. Wis. 1993), Milwaukee, 823 F. Supp. 1452, 1456 41 F.3d 1510 (7th Cir. 1994) - aff’d (emphasizing centrality of prejudice concerns in determining whether to allow reply brief or aff davit). i 75 See ED . R. C IV . P. 6(c)(2) (2009) (setting forth rule regarding supporting affidavits); see F also Herron v. Herron, 255 F.2d 589, 593 (5th Cir. 1958) (observing that Rule (6)(c)(2)‘s e 6(d), was ―not a hard and fast rule‖); O‘Brien v. Ed Donnelly Enters., pred cessor, former Rule - CV - Inc., No. 2:04 rev’d on other 00085, 2007 WL 4510246, at *11 (S.D. Ohio Dec. 18, 2007), grounds , Nos. 07 - 4550, 08 - 3184, 2009 WL 2382437 (6th Cir. Aug. 5, 2009) (―Because the [Reply] Affidavit is responsive to issues raised in the Plaintiff‘s mem o randum in opposition, F ED . IV R. IV . P. 6(d) [current version at F ED . R. C C . P . 6(c)(2)(2009)] does not render the affidavit untimely.‖); O sen v. Marshall & Ilsley Corp., No. 99 - C l 0774 - C, 200 0 WL 34233699, at *1 - (W.D. Wis. Sept. 7, 2000), aff’d , 267 F.3d 597 (7th Cir. 2001) (―[Rule] 6(d) is not a rigid rule without exceptions; courts are given wide discretion to accept affidavits beyond the date the motion is filed.‖ (citing Concrete Works of Colo., Inc. v. City & County of Denver, 36 F.3d 1513, . But see In re Stone, 588 F.2d 1316, 1321 (10th Cir. 1978) (―The 1523 n.9 (10th Cir. 1994))) n la guage of the rule is clear. Affidavits in support of a motion must be served with the motion.‖); Loewen v. Turnipseed, 505 F. Supp. 512, 520 (N.D. Miss. 1981) (explaining ―mandatory‖ rule that affidavits must be stricken if they do not accompany a motion). Even though the default provisions of Rule 56 now contemplate reply briefs, they still do not contempl ate reply affidavits. F ED . R. C IV . P. 5 6(c)(1) (2009). See
15 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 57 201 neither Rule 6(c)(2) nor any other generally applicable federal rule a in summary judgment tively authorized the filing of reply affirm briefs ings, the rules drafters likely did not con template the submission d procee ‘ 76 vits with a reply. of Indeed, Rule 6(c)(2) expressly authorizes affid a opposing courts to extend the time for the party a motion to file its affidavits, but not the time for the moving party to submit affidavits in 77 o For this additional reason, the plain language of support of the m tion. Rule 6 provides questionable authority for the judicial recognition of a s right to submit reply affidavits in support of a summary moving party ‘ 78 judgment motion. C. Other Potential Mechanisms for Submitting Reply Affidavits Standards for Amendment Embodied in Federal Rule 6(b) 1. Although Rule 6(c)(2) may provide questionable support for the filing of reply affidavits, the submission of such evidence might be r missible under Rule 6(b), an ― all - p urpose provision for enlargement of pe 79 ‖ In time, when read in conjunction with Rules 6(c)(2) and 56(c). 80 , for McCloud River Railroad Co. v. Sabine River Forest Products Inc. 76 F ED . R. C IV . P. 5 6(c) (2009) (authorizing submission of r e ply brief); Burciaga v. West, See af 996 F. Supp. 628, 639 (W.D. Tex. 1998), , 162 F.3d 94 (5th Cir. 1998) (noting absence of f’d inal motion . should be filed with the ori g rule giving right to reply so ―evidentiary attachments . . for summary judgment or response‖). 77 F See . R. C IV . P. 6(c)(2) (―[A]ny opposing affidavit must be served at least 7 days ED b e fore the hearing, unless the court permits service at another time. ‖ (emphasis added)); 10A C HARLES LAN W RIGHT , A RTHUR R. M ILLER & M ARY K AY K ANE , F EDERAL P RACTICE AND A ROC EDURE § 2719, at 308 n.9 (3d ed. 1998) (―[T]he passage . . . that authorizes the trial court to P i permit service at some other time in the case of opposing affidavits . . does not seem appl . cable to a supporting affidavit.‖); cf. Alicia Christina Almeida, Note, Precision Fabrics Group, Inc. v. Transformer Sales & Service, Inc.: Evening the Odds in Summary Judgment Motions in North Carolina , 75 N.C. L. R EV . 2229, 2246 (1997) (asserting, with respect to N.C.R. C IV . P. 6 (d), jud i over deadlines for submission of opposing affidavits). cial discretion permitted only 78 See, e.g. , Russo v. Ballard Med. Prods., No. 2:05 CV 59, 2006 WL 2345868, at *10 n.1 (D. Utah Aug. 10, 2006) (invoking former Rule 6(d) in declining to consider declarations submi t ted by movant ―two days following the hearing on this motion‖); Fisher v. Crest Corp., 735 P.2d 1052, 1056 n.4 (Idaho Ct. App. 1987) (explaining some courts have held they have no discretion to allow late affid vits , while others find they do). a 79 Schafer Bakeries, Inc. v. Int‘l Bhd. of Teamsters, 650 F. Supp. 753, 756 (E.D. Mich. 1986). Rule 6(b) provides that ―[w]hen an act may or must be done within a spe cified time, the court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect.‖ F ED . R. C IV . P. 6(b); see also Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir. 1993) (―Of cou rse, a district court has discretion to consider a late affidavi t if it chooses to do so . . . Fed.R.Civ.P. 6(b) allows courts to enlarge the Rules‘ time p riods.‖). e 80 5th Cir. 1984) . 735 F.2d 879 (
16 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 58 UFFOLK example, the Fifth Circuit held that an affidavit the plaintiff submitted after ling its motion for summary judgment was properly considered, even fi ― an affidavit filed in support of a though the former Rule 6(d) stated that 81 ‘ be served with the motion. ‖ motion ̳ shall The court based its holding on the discretion to accept untimely Rule 6(b), which gives a trial court vits under circumstances demonstrating that excusable neglect was affid a 82 the re a son for the late submission. In order to obtain leave to submit a belated supporting affidavit n der Rule 6(b), the moving party must show ― u od cause ‖ for failing to go 83 Because in most cases submit the affidavit at the time it filed its motion. a request for such leave would be made only after the time by which su p porting affidavits were required to have been submitted under Rule with ‖ ― the motion), the moving party may further be required 6(c)(2) (i.e., to show that its failure to submit the affidavit with its motion was the result 84 cusable neglect. As the Seventh Circuit explained: of e x Federal Rule of Civil Procedure 6 discusses the . . . cumstances under which an enlargement of a time cir period may be granted (Rule 6(b)). If a request for . . . is made after the time has expired, enlargement of time the court must be satisfied that the failure to act was the 85 result of excusable neglect. 81 Id. at 882 (stating judicial discretion ultimately governs appl i cation of F ED . R. C IV . P. 6(d) [current version at F ED R. C IV . P. 6(c)(2) (2009)]). . 82 51 (E.D.N.Y. see also Laroque v. Domino‘s Pizza, LLC, 557 F. Supp. 2d 346, 350 - See id. ; 2008): Generally, affidavits must be served contemporaneously with the motion that they p port. Rule 6(b) , however, provides that . su . . ― the court may, for goo d cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect.‖ This grant of discretion a p plies to any temporal requirement found in the Federal Rules, unless expressly except ed, which the requirement regarding f service of a fidavits is not. (internal citations omitted). 83 Fed. R. Civ. P. 6(b)(1). 84 See Eguia v . Tompkins, 756 F.2d 1130, 1136 n.6 (5th Cir. 1985) (reversing summary judgment because failure to submit affidavit u n til after judgment was inexcusable delay); Farina v. Mission Inv. Trust, 615 F.2d 1068, 1075 (5th Cir. 1980) (―[A]bsent an affirmative sho w ing . . . of excusable neglect according to Rule 6(b) a court does not abuse its discretion when it refuses to accept out of - time affid a vits.‖). - 85 Reales v. Consol. Rail Corp., 84 F.3d 993, 996 ( 7th Cir. 1996) (holding district court did not abuse discretion by denying plaintiff‘s request to extend summary judgment deadline). See generally Inst. for Policy Studies v. U.S. Cent. Intelligence Agency, 246 F.R.D. 380, 383 (D.D.C. 2007) (outlining fac tors constituting ―excusable neglect‖ under Rule 6(b)).
17 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 59 201 showing required by Rule 6(b) defies precise definition, yet The 86 Still, the Rule 6 requirements may not be particularly difficult to satisfy. are not entirely illusory in the sense that the moving party must show good 87 Signi ficantly, the rule ‘ s ― good cause ‖ cause and/or excusable neglect. excusable neglect and provisions are intended to ― prevent the moving ― ‖ party from springing new facts on the nonmoving party when it is too late 88 ‖ This objective is identical to the objective that underlie s to contest them. ‘ s general requirement that affidavits be filed with Rule 6(c)(2) the motions 89 they support. The moving party presumably can satisfy its burden under Rule 6(b) by showing that its reply affidavits contain ― newly discovered 90 dence extracted from a previo ‖ The burden also i usly missing source. ev might be satisfied by establishing a need to address factual matters raised for the first time in the nonmovant ‘ s opposition to a motion for summary 91 However, Rule 6(b) ‘ s provision for the discretionary judgment. larg e ment of time to submit affidavits does not alter the en general rule ― [that] a party may not submit evidence with a reply that was available but 86 Lovelace v. Lee, 472 F.3d 174, 204 (4th Cir. 2006) (allo w ing affidavit submission five See weeks after summary judgment motion filed despi te lack of explanation); Bilodeau v. Angelone, F ED . 39 F. Supp. 2d 652, 659 (E.D. Va. 1999) (explaining R. C IV . P. 6(b)(2) grants ―considerable discretion to district courts . . . in excusing ta r diness.‖ (citations omitted)); Dubuc v. Green Oak Twp., 958 F . Supp. 1231, 1241 (E.D. Mich. 1997) (referring to excusable neglect as ―a somewhat Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd . , 507 U.S. 380, ̳elastic concept‘‖ (citing P‘ship 388, 390 (1993))). 87 Kernisant v. City of New York, 225 F.R.D. 422, 431 (E.D.N.Y. 2005) (―Because this See Court may exercise its discretion under Rule 6(b)(1) only for ̳cause shown‘ a party must a tion omitted)); demonstrate some justification for the issuance of the enlargement order. ‖ (cit Schafer Bakeries, Inc. v. Int‘l Bhd. Of Teamsters, 650 F. Supp. 753, 756 (E.D. Mich. 1986) (emphasizing movant‘s burden to show ―excusable neglect‖ if it fails to timely file motion or affid a vit). 88 Kernisant - 32 (outlining good cause sta n dard); Schafer Bakeries , 650 F. , 225 F.R.D. at 431 Supp. at 756 (emphasizing need to show ―excusable neglect‖ in failing to file timely motion or a affid vit). 89 notes 65 - See supra and accompanying text; see also Owner - Operator Indep. Drivers 67 Ass‘n v. Artic Express, Inc., 288 F. Supp. 2d 898, 903 - 04 (S.D. Ohio 2003) (discuss ing F ED . R. C IV P . 6(b)). . 90 Useden v. Acker, 947 F.2d 1563, 1572 (11th Cir. 1991) (affir ing district court‘s decision m to strike untimely affidavit because its information was available during di scovery); see also Acme Printing Ink Co. v. Menard, Inc., 870 F. Supp. 1465, 1487 (E.D. Wis. 1994) (extending period for filing affidavits pursuant to F ED . R. C IV . P. 6(b) after new evidence discovered). 91 See supra notes 69 - and accompanying text; see also Smith v. Burns Clinic Med. Ctr., 74 P.C., 779 F.2d 1173, 1175 n.6 (6th Cir. 1985) (finding defendant‘s need to address claims in plaintiffs‘ opposition to summary judgment satisfied cause requirement); Morr i son v. Quality Transps. Servs., Inc., 474 F. Supp. 2d 1303, 1314 (S.D. Fla. 2007) (denying plaintiff‘s motion to strike defendant‘s supplemental affidavits where filed to rebut plaintiff‘s summary judgment o p position).
18 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 60 UFFOLK 92 cluded with the original motion. For example, in Cia. Petrolera n not i ‖ 93 Caribe, Inc. v. Arco Caribbean, Inc the First Circuit held that the district . , 94 court improperly considered reply affidavits containing new evidence. allows ̳ for cause ― The First Circuit observed that although Rule 6(b) a discretionary enlargement of time, this discretion must not b e shown ‘ 95 ‘ ‖ exercised in a manner that prejudices the other party s substantial rights. ‘ new evidence prejudiced the The court further held that the moving parties 96 opposing party, who did not have a meaningful opportunity to respond. ugh Rule 56(e) 2. Curing Deficiencies Thro Parties seeking to support their summary judgment motions with reply affidavits also occasionally invoke Rule 56(e), which states that a court may permit an affidavit supporting a motion for summary judgment 97 ‖ by additiona l affidavits. ― to be Rule 56(e) is often used to supplemented ‘ s initial affidavits, in part because Rule 6(b) ‘ s cure deficiencies in a party 98 language is not particularly well suited for general applicability. ‘ ts, Beyond merely curing deficiencies in a movant s initial affidavi parties also occasionally use supplemental affidavits to support summary judgment on more substantive grounds, including the strength of the 99 s claims. When a state appellate court evidence in support of each party ‘ 92 Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655, 678 n.30 (N.D. Ga. 2001) (a p plying ―general rule‖ in denying plaintiff‘s motion for cl ass certification); see also Tetra Techs., Inc. v. Harter, 823 F. Supp. 1116, 1120 (S.D.N.Y. 1993) (prohibiting party from raising ―entirely new but foreseeable points relevant to a motion‖ in reply affidavit). 93 754 F.2d 404 (1st Cir. 1985). 94 Id. - 10 (reasoning defendant‘s affidavits submitted on day of the hearing at 409 ly prejudiced the plaintiff). substantia l 95 (quoting F ED . R. C IV . P . 6(b) [current version at F ED Id. R. C IV . P. 6(b)(1) (2009)]); cf . . Yonofsky v. Wernick, 362 F. Supp. 1005, 1015 (S.D.N.Y. 1973) (recounting importance of e g party in applying Rule 6(b)). pr judice or lack thereof to the nonmovin 96 See Cia. Petrolera Caribe, Inc. - 10. The court also noted that the district , 754 F.2d at 409 court‘s opinion ―relied heavily on defendants‘ reply brief and suppor ting affidavits and even i n corporated verbatim a number of consecutive pages from defendants‘ brief.‖ Id. at 410. 97 Fed. R. Civ. P. 56(e)(1). 98 See Fed. R. Civ. P. 56(e) (―The court may permit an affidavit to be supplemented or p posed by . . . additional affidavits.‖); o notes 83 – 96. Compare Eguia v. Tompkins, 756 supra F.2d 1130, 1136 n.6 (5th Cir. 1985) (concluding party may not ―shore up . . . a motion for summary judgment with subsequently filed affidavits‖), with Lowe v. Phila. Newspapers, Inc., 594 F. Supp. 123, 127 n.4 (E.D. Pa. 1984) (permitting ―timely amendment, supplementation and resubmission of affidavits‖ based on Rule 56(e)) . 99 See RGI, Inc. v. Unified Indus., Inc., 963 F.2d 658, 662 (4th Cir. 1992) (emphasizing court‘s discretion to allow supplementary material supporting motion for summary judgment u n der Rule 56(e) ); Mills v. Barreto, No. 3:03CV735, 2004 WL 3335448, at *3 (E.D. Va. Mar. 8, 2004) (―[S]ummary judgment may be granted based on facts developed . . . [in] supplemental
19 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 61 201 terpreted a similarly worded state n rule, it found this aspect of Rule 56(e) i - allowed the moving party to supplement its arguments in order to show that 100 In addition, because there was no genuine issue of material fact for trial. Rule 56(e) contains no explicit excusable neglect requirement , it may vide a somewhat more permissive and predictable procedural pr o mechanism than Rule 6(b) for the submission of reply affidavits in 101 summary judgment proceedings. For example, in Brown v. Retirement Committee of Briggs & 102 th Stratton Retirement Plan e plaintiff argued that the district court , r ly considered the defendants ‘ supplemental affidavit in support of imprope 103 their summary judgment motion. The plaintiff asserted that a party ime moving for summary judgment must produce all of its evidence at the t 104 ‘ tion is filed. The Seventh Circuit rejected the plaintiff o s argument its m ‘ s decision for the defendant, stating without and affirmed the district court a boration that Rule 56(e) authorizes courts to permit summary judgment el 105 f ented. fidavits to be supplem a 106 a proper application of Rule 56(e) Nevertheless, like Rule 6(b), may be limited to the submission of affidavits containing newly discovered evidence, or affidavits responding to matters first raised by the nonmoving 107 party in opposition to the moti on. In Vakas v. Transamerica Occidental affidavits.‖). 100 See Renn v. Davidson‘s Southport Lumber Co., 300 N.E.2d 682, 686 - 87 (Ind. Ct. App. 1973) (noting Indiana Trial Rule 56(E), which mirrors the Federal Rules allows supplemental ); see also Amwest Sur. Ins. Co. v. Vaughn, 100 F. Supp. 2d 335, 338 (E.D.N.C. 200 0) affidavits including supplemental (―Summary judgment is proper if after viewing all the evidence, affidavits vorable to the non - moving party, the Court finds no genuine issue a , in the light most f exists.‖ (emphasis added) (citation omitted)). 101 Compare Kidder, Peabody & Co. v. IAG Int‘l Acceptance Group, N.V., 28 F. Supp. 2d 126, 130 (S.D.N.Y. 1998) (―Rule 56(e) grants [courts] the discretion to permit the filing . of . . supplemental materials and does no t specify when that permission must be granted.‖), with Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir. 1993) (observing Rule 6(b) should be employed n ―o ly if cause or excusable neglect has been shown‖). 102 797 F.2d 521 (7th Cir. 1986). 103 See id. at 524, 529 n.l. 104 Id. at 529 n.1. 105 See id. at 523, 529 n.1, 536; cf. In re Jackson, 92 B.R. 987, 992 (Bankr. E.D. Pa. 1988) x (―[T]he provision of F.R. Civ. P. 56(e) e pressly allowing ̳affidavits to be supplemented,‘ causes all competent evidence submitted to the c ourt should be considered in us to conclude that d ing a motion for summary judgment, whether submitted initially or in response to objections deci to the motion.‖). 106 See supra notes 83 - 96 and accompanying text (discussing appropriate grounds for e largement of time pursuant to Rule 6(b)). n 107 See, e.g. , Pelletier v. Zweifel, 921 F.2d 14 65, 1494 (11th Cir. 1991) (noting defendant seeking leave to submit supplemental affidavit was ―armed with [new] information,‖ which justified the gran t ing of the request); Dudo v. Schaffer, 91 F.R.D. 128, 133 (E.D. Pa. 1981) (noting propriety of submittin g a ―supplemental affidavit for newly discovered matter‖) ; Bell v.
20 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 62 UFFOLK 108 for example, the plaintiffs objected to an affidavit ., Life Insurance Co s summary judgment motion, claiming the submitted with the defendant ‘ s personal ‘ affidavit recited facts that were not within the affiant 109 wledge. In response to this objection, the defendant submitted a kno mental affidavit with its reply from the same affiant elaborating on suppl e ters asserted in his original affidavit and presenting new factual the ma t 110 information not contained in the prior a ffidavit. Relying on Rule 56(e), the plaintiffs moved to strike the e mental affidavit and portions of the defendant ‘ s reply brief that suppl ‘ s right to reply was relied upon the affidavit, arguing that the defendant 111 t ters raised in their oppos However, the court limited to ma ition. s argument that Rule 56(e) permitted the ‘ accepted, in part, the defendant ciency considerations, and declined to strike the i affidavit based on eff 112 sponded to issues raised by the plaintiffs. e The affidavit to the extent it r co urt nevertheless refused to consider either the portions of the affidavit ‘ s reply relying upon asserting new facts or the sections of the defendant 113 those facts. Olsen v. Marshall Ilsley Such an approach, as succinctly stated in 114 , attempts to balance competing prejudice and efficiency interests: Corp. [T]o the extent that the affidavits were used to rebut ‘ s . . . opposition to defendants ‘ motion, the plaintiff affidavits will be considered. To the extent they were used Kolongo, No. 1:03CV501(GBL), 2004 WL 3247156, at *4 (E.D. Va. Oct. 25, 2004), , 120 aff’d Fed. Appx. 985 (4th Cir. 2005) (stating Rule 56(e) permits supplemental affidavits for ―allegations . . raised for the first time in [the] Oppos i tion‖). . 108 242 F.R.D. 589 (D. Kan. 2006). 109 Id. at 592. 110 at 593. Id. 111 See id. cf. Shurr v. A.R. Siegler, Inc., 70 F. Supp. 2d 900, 919 (E.D. Wis. 1999) at 593; - movant did not raise matter in its (disregarding new evidence in movant‘s reply because non response the Vakas defendant submitted a supplemental affidavit without first ). To the extent obtaining the court‘s permission, that itself was impr o per. See Fed. R. Civ. P. 56(e) (―The court may permit an affidavit to be su p p lemented or opposed by . . . additional affidavits.‖) (emphasis added); United States v. Johns - Manville Corp., 259 F. Supp. 440, 455 (E.D. Pa. 1966) (stating Rule 56(e) requires court permission before submitting supplemental materials for summary judgment m o tion). 112 , 242 F.R.D. at 59; See Vakas Torre v. Federated Mut. Ins. Co., 854 F. Supp. 790, 833 cf. (D. Kan. 1994) (observing moving party ―ju s tified in presenting additional facts challenging th ose presented by the nonmovant‖). 113 See Vakas , 242 F.R.D. at 59; cf. Martinez v. Weyerhaeuser Mortgage Co., 959 F. Supp. 1511, 1515 16 (S.D. Fla. 1996) (striking portions of reply affidavit and me morandum that ―raise - new a r guments . . . .‖). See generally Potter v. Shoney‘s, Inc., 108 F. Supp. 2d 489, 498 (M.D.N.C. 1999) (indicating Rule 56 allows discretion in permitting supplemental affidavits). 114 No. 99 - C - 0774 - C, 2000 WL 34233699 (W.D. Wis. Sept. 7, 2000).
21 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 63 201 in an attempt to propose new facts, t hey will be ignored. In this way, neither side is prejudiced; defendants are given portunity to respond to assertions made by plaintiff, the o p but plaintiff is not left in the precarious position of being 115 unable to respond to newly proposed facts. S: EFFECTIVE DISCOVE RY AS A VOIDABLE CONSEQUENCE III. A E NEED FOR REPLY AFF IDAVITS MEANS OF AVOIDING TH Olsen Reasoning similar to that of the has prompted a court m ber of other courts to permit the filing of reply affidavits in summary nu 116 ment cases. jud ourts assume that the opposing party may g These c respond to a summary judgment motion with evidence that goes beyond the issues framed by the motion, and that the moving party may not have 117 anticipated this evidence at the time it filed the motion. ion, In this situat the moving party may feel compelled to submit additional affidavits in 118 response to new and unanticipated evidence. Despite the superficial appeal of this reasoning, a moving party rarely should be surprised by evidence submitted in opposition to its assuming it conducted appropriate discovery before filing the motion, 119 m o The party opposing summary judgment should use the tion. 115 Id. at *1 (declining to strike defendant‘s ―untimely affidavits‖ and affirming summary judgment). 116 See, e.g. , 242 F.R.D. at 593 (allowing supplemental a f fidavit to extent it directly , Vakas responds to assertions raised in response); Beveridge v. Nw. Airlines, Inc., 259 F. Supp. 2d 838, ining propriety of reply affidavits ―when necessary to address factual 845 (D. Minn. 2003) (expla INN . LR. 7.1, Advisory Committee Note to claims . . . not reasonably anticipated‖ (quoting D. M 57 (E.D. Wis. 1993), - 1999 Amendment)); Baugh v. City of Milwaukee, 823 F. Supp. 1452, 1456 aff’d (permitting reply affidavits to prevent opposing party from , 41 F.3d 1510 (7th Cir. 1994) ―gain[ing] an unfair advantage‖). 117 See In re Clark, 262 B.R. 508, 513 n.10 (B.A.P. 9th Cir. 2001) (holding moving party need not anticipate all possible defenses in i itial moving papers); Smith v. Johnson, 862 F. Supp. n 1287, 1289 (M.D. Pa. 1994) (movant should not ―be expected to anticipate . . . every argument or factual assertion made by . . . respo ndent‖). 118 378, 2006 WL 314494, at *2 (S.D. Ohio See, e.g Brantley v. Cinergy Corp., No. C - 1 - 01 - ., Feb. 9, 2006) (summarizing defendant‘s argument to allow reply submission based on impossibility o f anti c ipating plaintiff‘s responsive evidence); Ticor Title Ins. Co. of Cal. v. FFCA/IIP 1988 Prop. Co., 898 F. Supp. 633, 636 (N.D. Ind. 1995) (recounting plaintiff‘s belief reply brief ―necessary‖ to respond to d e fendant‘s responsive evidence). 119 Contreras v. City of Chi., 920 F. Supp. 1370, 1379 n.3 (N.D. Ill. 1996) (―[T]he whole See point of the discovery process . . . is to determine whether there is insufficient evidence to proceed to tr i al. ‖); In re Digital Equip. Corp. Secs. Litig., 601 F. Supp. 311, 316 - 17 (D. Mass. 1984) (―[A] motion for summary judgment cannot be granted when . . . it is not yet certain whether e s sential assertions of fact made by the moving party will be genuinely in di spute.‖).
22 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 64 UFFOLK 120 discovery process to obtain the evidence necessary to oppose the motion. e wise, the party intending to file a motion for summary judgment Lik s should conduct the discovery necessary to anticipate the opposing party ‘ 121 sponse. Thus, before moving for summary judgment, a party is e r expected to use the various discovery tools at its disposal to determine would be able to produce sufficient evidence to whether the opposing party 122 survive the motion. In fact, because the opposing party need only establish the existence of a single genuinely disputed material fact in order to avoid m mary judgment, the moving party must su anticipate e very potential ― 123 that might be submitted in opposition to its motion. adverse fact ‖ Put another way, a moving party must attempt to plug every evidentiary hole ‖ ― 124 in its right to summary judgment before it submits the motion. Therefore, the moving party s hould not be surprised by matters asserted in opposition to its motion unless it neglects to conduct discovery with these 125 c tives in mind. The apparent failure of some courts to critical obje 120 Smook v. Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865, 871 (11th Cir. See 1988) (discussing right of opposing parties to use discovery to determine facts necessary to justify opposition); see also Parrish v. Bd. of Comm‘rs of Ala. State Bar, 533 F.2d 942, 948 (5th Cir. - finding opportunities available to parties opposing summary 1976) (extolling myriad of fact judgment during discovery process). 121 , Estate of Ritzer v. Nat‘l Org. of Indus. Trade Unions Ins. Trust Fund Hosp., See, e.g. Med., Surgical Health Benefit, 822 F. Supp. 951, 956 (E.D.N.Y. 1993) (noting defendant had ample opportunity to conduct discovery prior to bringing summary judgment motion). 122 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105 (9 th Cir. 2000) (―In See . . . the moving party will have made reasonable effor ts, using the normal tools of a typical case disco v ery, to discover whether the nonmoving party has enough evidence to carry its burden of persuasion at trial.‖); Digital Equip. Corp ., 601 F. Supp. at 317 (―I urge counsel to defer filing very instance in which there is any doubt, before di s motions for summary judgment in e covery is completed, whether some fact on which the legal argument for the motion is premised will be disputed.‖). 123 - F our W., Inc., 738 So.2d 903, 909 (Ala. Civ. App. 1999) City of Dothan v. Eighty t ing C HAMP L YONS , J R ., A LABAMA (quo ULES OF C IVIL P ROCEDURE A NNOTATED , § 56.5, at R 103 (3d ed. 1996)); see also F ED . R. C IV . P. 56(c) (―The judgment . . . should be rendered if . . . there is no genuine issue as to any material fact . . . .‖); Pike v. Caldera, 188 F.R.D. 519, 531 (S.D. Ind. 1999) (―[T]o defeat a summary judgment motion, the nonmovant need only demonstrate a si gle genuine issue of material fact.‖); Digital Equip. Corp. , 601 F. Supp. at 3 16 n (―If, as counsel for a moving party, you know that even one of the facts essential to a motion for summary judgment is in dispute, you cannot properly file the motion.‖). 124 , 738 So.2d at 909 (quoting L City of Dothan , supra note 123 , at 103) (explaining YONS obligation of moving party in filing motion for summary judgment) ; see also Ritt by Ritt v. L nox Hill Hosp., 582 N.Y.S.2d 712, 714 (N.Y. App. Div. 1992) (―If a movant, in preparation of e a motion for summary judgment, cannot assemble sufficient proof to dispel all questions of mater i al fact , the motion should simply not be submitted.‖ (emphasis added)). 125 See, e.g. , Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) (calling decision to forego di s covery and proceed to summary judgment ―an unusual and risky maneuver‖); Williams v. Bd. of Regents of Univ. Sys. of Ga., 90 F.R.D. 140, 143 (M.D.
23 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 65 201 damental interplay between discovery and summa n recognize this fu ry judgment has occasi o nally enabled moving parties to engage in the type of ‖ that has prompted other courts to view the submission of ― sandbagging 126 reply affidavits with a more critical eye. 127 Viero v. Bufano the court held that a party , For example, in v mo ing for summary judgment must apprise the opposing party of all of the evidence the moving party plans to utilize before the opposing party ‘ s 128 sponse to the motion is due. The court indicated that the moving r e ‘ s purported need to submit a reply aff idavit, in an attempt to ― beef party ‖ up the evidence the party presented (or failed to present) with its initial motion, necessarily reflected either a lack of preparation or intentional 129 g In the court sandba s view, neither possibility provided a ging. ‘ 130 ate basis for considering such untimely evidence. legitim - trial disco v ery as ―primary cause‖ of defendant‘s lack of viable Ga. 1981) (citing insufficient pre defense). 126 , 188 F.R.D. at 532 (condemning sandbagging). ―In this context, ̳sandbagging‘ See Pike is defined as a party intentionally withholding its best evidence and/or argument until the s ing party does not have an adequate opportunity to respond.‖ Id. oppo see also at 532 n.23; Adams v. Jackson, 218 F. Supp. 2d 1006, 10 10 (N.D. Ind. 2002) (o b serving moving party sandbagging by waiting until reply to submit evidentiary support for his motion); Tetra Techs., Inc. v. Harter, 823 F. Supp. 1116, 1120 (S.D.N.Y. 1993) (asserting movants‘ sandba g ging was ―foreign to the spirit a nd objectives of the Federal Rules‖ (citing, inter alia , F ED . R. C IV . P. 56)); Murphy v. Vill. of Hoffman Estates, No. 95 C 5192, 1999 WL 160305, at *2 (N.D. Ill. Mar. 17, 1999), , 234 F.3d 1273 (7th Cir. 2000) (―[I]t is esta b lished beyond peradventur e that it is aff’d p ponent by raising new matter in reply.‖). improper to sandbag one‘s o 127 925 F. Supp. 1374 (N.D. Ill. 1996). 128 79 - 80 (admonishing defendants‘ ― See id. - minute a t tempts to bolster the record in at 13 last e ply) ; their favor‖ with new evidence in r O‘Connell v. Smith, No. CV 07 - 0198 - PHX - see also SMM, 2007 WL 4189504, at *1 (D. Ariz. Nov. 21, 2007) (noting prejudice to non movant and - conflict with principles of Federal Rules when evidence submitted after response); FM 103.1, Inc. v. Universal Broad. of N.Y., Inc., 929 F. Supp. 187, 197 n.5 (D.N.J. 1996) (―Sa ing important v n factual evidence for reply papers is improper and u movant‘s adversary.‖). fair to the 129 Viero , 925 F. Supp. at 1380 (declining to consider defendant‘s supplemental affidavit) ; cf. Aurora Loan Servs., Inc. v. Posner, Posner & Assocs., P.C., 513 F. Supp. 2d 18 , 20 (S.D.N.Y. e ply); Burney v. Thorn 2007) (prohibiting plaintiff from submitting additional evidence with r Ams., Inc., 970 F. Supp. 668, 671 (E.D. Wis. 1997) (condemning parties that fail to submit e rel ). vant evidence and parties that engage in sandbagging 130 Viero , 925 F. Supp. at 1380 (refusing to consider defendant‘s expert deposition submitted with reply brief because of undue prej dice to plaintiff). The Viero court explained: u Whatever the c a vit would involve a one - ase may be, any consideration of [the] affid sided and unfair analysis, where [the opposing party] would be left without an opportunity to r e spond . . . . Trial by ambush is the stuff of Hollywood or TV movies, and it was once a re - hunt‖) theory of justice, but cognized part of the sporting (or ―fox today it has no place in a court of law, and partic u larly not in the well - ordered world of summary judgment motions. Id. ; see also Autotech Techs. Ltd. P‘ship v. Automationdirect.com, Inc ., 235 F.R.D. 435, 437
24 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 66 UFFOLK BE CAREFUL WHAT YOU ERMITTED WISH FOR: A MOVANT P IV. DAVITS RARELY SHOULD TO SUBMIT REPLY AFFI DO SO A. Reply Affidavits and the Absence of a Genuine Issue of Material Fact sive Are Almost Always Mutually Exclu The Viero court also indicated that even if procedurally i ble, the moving party ‘ s submission of a reply affidavit is likely to permiss 131 a be str The court explained that once the opposing party tegically futile. sh the existence of a genuine presents evidence that appears to establi 132 ‘ s summary judgment decision is affected. fa c The tual dispute, the court ‘ s submission of additional affidavits to discredit the opposing moving party ‘ s evidence does the moving party ― absolutely no good in moving party . . . 133 toward summary judgment. ‖ affidavits have a tendency to highlight the factual disputes Reply 134 that prevent summary judgment. A moving party faced with an apparent factual dispute can prevail on its motion only one of two ways. First, a party will prevai l on summary judgment if it establishes that there is no g e nuine dispute because the evidence submitted in opposition to the motion is so insubstantial that no reasonable fact - finder could resolve the dispute in 135 ‘ Second, the mo vant may argue that the the opposing party s favor. (N.D. Ill. 2006) (admonishing sandbagging tactics). ―The courts have characterized this tactic in - all negative. Blind - siding, gamesmanship, and sandbagging are the most a variety of ways name a p commonly used epithets. Regardless of the plied, the gambit has no place in the judicial system.‖ Id. 131 See Viero n ing dueling affidavits may , 925 F. Supp. at 1379 n.11 (N.D. Ill. 1996) (reaso ighlighting factual inconsistencies). cause denial of summary judgment by h 132 See id. 133 Id. at 1379 n.11; see also Elghanmi v. Franklin Coll. of Ind., Inc., No. IP 99 - 879 - C H /G, 2000 WL 1707934, at *2 (S.D. Ind. Oct. 2, 2000) (―[I]t is a complete waste of time for the mo ing party to come forward with conflicting evidence in an effort to ̳dispute‘ the non - moving v r pa ty‘s factual assertions.‖). 134 See Waters v. City of Chi., 416 F. Supp. 2d 628, 629 n.1 (N.D. Ill. 2006). [O]nce a party responding to a Rule 56 motion has identified a genuine issue of material fact that would preclude summary judgment . . . nothing that the movant can offer up by way of reply as to its version of the facts can stave off rejection of the - just as an om e lette, once scrambled, cannot be stuffed summary judgment motion back into the eggshell. Id. 135 See Coolspring Stone Supply, Inc. v. Am. States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993) (discussing successful demonstration of genuine factual issue). ―For an issue to be
25 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 67 201 c tual dispute, while perhaps genuine, is not material because the fa opposing party could not prevail under the governing legal principles even 136 c tual dispute was resolved in its favor. if the fa Moving parties often submit reply brie fs in an attempt to establish ‘ s factual one or both of these potential deficiencies in an opposing party 137 presentation. As the Ninth Circuit has explained: The gist of a summary judgment motion is to require the adverse party to show that it has a claim o r defense, and has evidence sufficient to allow a jury to find in its favor on that claim or defense. The opposition sets it out, and then the movant has a fair chance in its reply papers to s evidence fails to establish a show why the respondent ‘ 138 issue of material fact. genuine 1. Factual Disputes and Sham Affidavits Genuine ‘ s submission of affidavits or other evidence with The moving party its reply brief will rarely assist it in showing that an alleged factual dispute genuine, the nonmovant needs to supply more than a scintilla o f evidence in support of its o – there must be sufficient evidence (not mere allegations) for a reasonable jury to find for p sition n the no Id. ; see also Friedman v. Coldwater Creek, Inc., 551 F. Supp. 2d 164, 169 movant.‖ (S.D.N.Y. 2008) (―[A] factual ̳di spute‘ is not genuine if no rational fact - finder ̳could find in favor of the nonmoving party because the evidence to support its case is so slight.‘‖ (quoting Gallo v. Prude tial Residential Servs., Ltd. P‘ship, 22 F.3d 1219, 1224 (2d Cir. 1994))). n 136 See 75 (7th Cir. 1997) (emphasizing factual Valance v. Wisel, 110 F.3d 1269, 1274 - pute must be material to preclude summary judgment); Waring v. Meachum, 175 F. Supp. 2d s di 230, 237 (D. Conn. 2001): [D ]isputed issues of fact are not material if the moving party would be entitled to judgment as a matter of law even if the disputed issues were resolved in favor of the - moving pa r ty. Such factual disputes, however genuine, are not material, and their non resence will not preclude summary judgment. p 137 See, e.g. - 97 (10th Cir. 2005) (noting ―main , Green v. New Mexico, 420 F.3d 1189, 1196 g party‘s] response‖); Hinton v. purpose‖ of movant‘s reply ―to point out the defects in [opposin Stein, 278 F. Supp. 2d 27, 31 (D.D.C. 2003) (recounting movant‘s assertion that opposing party failed to raise material issues of fact). 138 Carmen v. S.F. Unified S ch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). [T]he situation that may most often give rise to . . . a reply brief is the summary judgment m o tion where the responding party‘s response includes affidavits and new a tion, the mo vant may properly need to explain the facts that factual matter. In that situ s sues of immaterial establish [disputed] fact issues as either not genuine issues or as i fact. 3A D AVID F. ERR , G EN . R ULES OF P RAC . A NN . § 115.5 (Minn. Practice Series, 2009 ed.). H
26 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 68 UFFOLK 139 e submission of such evidence instead is not genuine. In most cases, th 140 s fact is indeed disputed. In ‘ will simply illustrate that the opposing party s affidavits analyzing such a dispute, a court cannot credit the moving party ‘ moving party presented; in fact, the over the conflicting evidence the non - opposite is true in that the court must favor the evidence submitted by the 141 moving party. non - Thus, the moving party ‘ s submission of affidavits with its reply ordinarily will not enhance its prospects for prevailing on 142 s one United States District Court explained, once summary judgment. A may not be tried upon a ― an issue of material fact emerges, that issue 143 ̳ affidavit match. su ‖ m mary judgment by means of an ‘ However, the moving party may submit reply evidence if it might 144 establish that an In particular, the alleged factual dispute is not genuine. moving party could use its reply to show that an affidavit submitted in opposition to its motion contradicts the same affiant s own prior sworn ‘ 139 , First Specialty Ins. Corp. v. NAIS, Inc., 459 F. Supp. 2d 1094, 1100 (D. Kan. See, e.g. 2006) (finding ―a genuine issue of material fact still exists‖ despite movant‘s additional evidence in reply); L i vingston v. S.D. S tate Med. Holding Co., 411 F. Supp. 2d 1161, 1171 (D.S.D. 2006) (asserting neither of defendant‘s supplemental affid a vits established ―absence of a genuine issue of material fact‖). 140 harles O. Bradley Trust v. Zenith Capital LLC, No. C 04 02239 JSW, 2008 See, e.g. - , C WL 3400340, at *6 n.2 (N.D. Cal. Aug. 11, 2008) (noting defendant‘s introduction of new dence ―creates a dispute of fact‖ precluding summary judgment); Pieszak v. Glendale ev i Med. Ctr., 112 F. Supp. 2d 970, 984 n.13 (C.D. Cal. 2000) (pointing out defendants‘ Adventist reply ev i dence ―merely creates a genuine issue for trial.‖); Johnson v. Freeburn, 29 F. Supp. 2d te of material fact 764, 768 (E.D. Mich. 1998) (reasoning defendant‘s affidavits created dispu which pre c luded summary judgment); Fasules v. D.D.B. Needham Worldwide, Inc., No. 89 C 1078, 1989 WL 105264, at *4 (N.D. Ill. Sept. 7, 1989) (asserting contrary evidence in defendants‘ reply brief undermined summary judgment); Ry. Labor Executives Ass‘n v. Long Island R.R. Co., 651 F. Supp. 1284, 1285 (E.D.N.Y. 1987) (holding movant‘s reply affidavits raised more factual issues than they resolved). 141 See MW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) Big Apple BMW, Inc. v. B (refusing to credit movant‘s version of the facts); Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980) (stating court‘s obligation to credit factual assertions in favor of the party opposing su m mary jud gment); Richburg v. Palisades Collection LLC, 247 F.R.D. 457, 464 n.3 (E.D. Pa. 2008) (explaining court ―must credit the non - moving party‘s evidence over that presented by the mo v .D. Ill. ing party.‖); Owsiak v. Kimco Corp., No. 95 C 4116, 1997 WL 722990, at *11 (N Nov. 13, 1997) (observing reply evidence did ―not extinguish any genuine dispute‖ because court could not ―ignore [contrary] testimony‖). 142 supra note See and accompanying text (illustrating reply aff i davits can create factual 140 issues that preclude summary judgment). 143 Yonkers Contracting Co. v. Me. Tpk. Auth., 24 F.R.D. 205, 228 (D. Me. 1958) rturning trial court and denying motion for su m mary judgment). (ove 144 See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (noting reply can establish lack of genuine fact issue). ―[T]he movant has a fair chance in its reply papers to show why the respondent‘s evidence fails to establish a genuine issue of material fact . . . . If given an opportunity, the movant might sometimes be able to show that the appearance of a genuine is sue of fact was ill u sory.‖ Id.
27 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 69 201 145 sition testimony. Such a showing typically i s made through the dep o ‘ ‘ s deposition transcript, which might movant s submission of the affiant persuade the court to disregard the opposing affidavit as a sham manufactured for the sole purpose of avoiding summary judgment when 146 If this tactic is determining whether the facts ar e genuinely in dispute. a successful, and the affid vit was the only pertinent evidence submitted by the opposing party, the moving party presumably would prevail on its 147 motion. Permitting the submission of reply evidence would be approp riate in this situation because a moving party s failure to anticipate a sham ‘ davit cannot be attributed to inadequate discovery efforts or other lack aff i 148 As one court explained: of preparation. Depositions are taken in order for a party to understand d respond to an opponent an s case; if a party could force a ‘ 145 See, e.g. - CV - 01883, 2008 WL 859240, at *6 (E.D. Pa. , Stinebeck v. Cutrona, No. 06 Mar. 28, 2008) (noting reply brief argued plaintiff‘s affidavit should not be co nsidered because it contradicted deposition testimony); Gebhardt v. Allspect, Inc., 177 F. Supp. 2d 267, 271 n.6 (S.D.N.Y. 2001) (―In their reply brief, ALIA claims that [a] statement from Rickard‘s affidavit is contradicted by his deposition testimony and that this Court should disregard the statement . . . .‖). An affidavit that contradicts prior sworn testimony is r e ferred to as a sham affidavit. See generally Jiminez v. All Am. Rathskeller, Inc., 503 F.3d. 247, 253 (3d Cir. 2007) (defining davit). ―A sham affidavit is a contradictory affidavit that indicates only that the ―sham‖ affi fiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose a f ment.‖ Id. g of defeating summary jud 146 See, e.g. , Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991) (―When, without a satisfactory explanation, a nonmovant‘s affidavit contradicts earlier deposition testimony, the determining whether a genuine issue of material fact district court may disregard the affidavit in exists.‖); Powell v. GAF Corp., 760 F. Supp. 469, 471 (W.D. Pa. 1990) (summarizing movants‘ a gument that court should ―disregard the affidavits filed by plaintiff as sham affidavits‖). r 147 See, e.g. , Schiernbeck v. Davis, 143 F.3d 434, 437 (8th Cir. 1998) (noting no genuine i dence conflicted with earlier testimony); Estevez issue of material fact because plaintiff‘s only ev v. Edwards Life s cienc es Corp., 379 F. Supp. 2d 261, 265 (D.P.R. 2005) (finding only evidence was a ―self - serving affidavit . . . inconsist ent with . . . previous testimony. . . .‖); Rosoff v. Mountain Laurel Ctr. For Performing Arts, 317 F. Supp. 2d 493, 502 (S.D.N.Y. 2004) (― An i affidavit that contradicts the witness‘s deposition testimony is insuff cient to raise a genuine issue of fact and thus insufficient to defeat a motion for summary judgment.‖); Hill v. McHenry, 211 F. ict between plaintiff‘s affid a vit and Supp. 2d 1267, 1273 (D. Kan. 2002) (concluding confl f fidavit). deposition testimony incited court to disregard portions of a 148 See, e.g. , Wright v. Murray Guard, Inc., 455 F.3d 702, 715 (6th Cir. 2006) (―That [p laintiff‘s] affidavit . . . contradicted his d e position testimony . . . could not have been raised before seeing [plaintiff‘s] response brief.‖); Stein v. Foamex Int‘l, Inc., No. Civ. A. 00 2356, - 2001 WL 936566, at *7 (E.D. Pa. Aug. 15, 2001) (holding repl y evidence appropriate because defendant could not anticipate inconsistencies between response affidavit and deposition); see also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (―factual a l legations that might otherwise defeat a motion for summary j udgment will not be permitted to do so when they are made for the first time in the plaintiff‘s affidavit . . . [that] contradicts her own prior deposition testimony.‖).
28 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 70 UFFOLK avowing her deposition testimony after trial by blithely di s it appears that the opposing party would otherwise prevail on summary judgment, the summary judgment procedure 149 would be useless. However, even when confronted with a sham affidavit in opposition to its summary judgment motion, the moving party will seldom improve its prospects by submitting a reply affidavit because the 150 n cies will likely create a factual dispute ripe for testing a t trial. inconsiste Part of the basis of the sham affidavit doctrine is that affidavits, unlike - depositions, are not subject to the acid test of cross examination, and 151 ly less reliable. therefore are inheren Thus, a party may not avoid t s serti summary judgment by a ng facts in an affidavit opposing summary 152 s prior deposition testimony. ‘ judgment that contradict the same affiant Similarly, the doctrine usually does not enable the party seeking summary 149 n U.S. Currency, No. 02 Civ. 3633(GEL), 2003 WL 21496858, at United States v. $7300 i * 4 (S.D.N.Y. June 27, 2003) (citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)); Hernandez - Loring v. Universidad Metrop o litana, 233 F.3d 49, 54 see also 2000) (cautioning discretionary disregard of sworn statement would present moving (1st Cir. n stantly moving target‖). party ―with a co 150 See, e.g. , Jefferson v. Mo. Dep‘t of Corr., No. 2:05CV00025 AGF, 2007 WL 1240256, at *2 (E.D. Mo. Apr. 27, 2007) (finding genuine issue of material fact based on two conflicting aff i davits from same witness); Quintanilla v. K - Bin, Inc., 8 F. Supp. 2d 928, 935 (S.D. Tex. 1998) (finding witness‘s acknowledgement of inco n t affidavits left fact issue) ; Viero v. Bufano, sisten - 80 n.11 (N.D. Ill. 1996) (―Dueling affidavits are a matter for a factfinder 925 F. Supp. 1374, 1379 Jersild v. Aker, 766 F. Supp. 713, at trial, not for this Court at the summary judgment stage.‖); b mitted Wis. 1991) (finding genuine issue of material fact for trial where defendant su 720 (E.D. conflicting evidence); Stinson v. Lumpkin Lumber Co., 460 S.E.2d 846, 848 (Ga. Ct. App. 1995) material issue‖ (internal (finding ―conflicting affidavits present a question of credibility as to a punctuation and citations omitted)). 151 Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007) (supporting See i tions are more reliable than affidavits‖ ); Darnell v. Target sham affidavit doctrine because ―depos Stores, 16 F.3d 174, 176 (7th Cir. 1994) (stating depositions more reliable than affidavits due to - examination); McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648, 651 (D. opportunity for cross C o lo. 200 1) (explaining importance of deposition cross - examination in cases excluding sham affid a vits); Dunlap v. Medtronic, Inc., 47 F. Supp. 2d 888, 891 n.2 (N.D. Ohio 1999) (noting affidavits are not subject to cross - o. Ins. Co., 198 examination); Bergeron v. State Farm Mut. Aut . . F. Supp. 723, 726 (E.D. La. 1961) (―Affidavits are, of course, the weakest form of evidence . . - examine the affiant.‖). The weakness in affidavits derives from the inability to cross 152 See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (refusing to acknowledge affidavit that would otherwise defeat su m mary judgment when it contradicts deposition testimony); Ha n kins v. Title Max of Ala., Inc., 12 Wage & Hour Cas. 2d (B NA) 1796, 1803 cf. (N.D. Ala. 2006) (―[E]xclusion of sham testimony is a p propriate in any case where earlier sworn testimony is subsequently conflicted.‖ (citation omitted)); Danis v. USN Commc‘ns, Inc., 121 F. Supp. 2d 1183, 1189 (N.D. Ill. 2000) (stating cou rts should rely on deposition testimony when affidavit contradicts prior deposition). But see Yeatman v. Inland Prop. Mgmt., Inc., 845 F. Supp. 625, 629 (N.D. Ill. 1994) (noting court may grant summary judgment despite affidavit that contradicts depositio n testimony).
29 M OBERLY RY F 0 201 R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 71 ] tence of a genuine issue of fact by sub s judgment to negate the exi mitting a dicts deposition testimony included in opposition reply affidavit that contr a 153 to its motion. The submission of a reply affidavit in an attempt to demonstrate a sham opposition to summary judgment might be effective if the reply contradicts the affidavit from the same witness that was affidavit directly 154 fered in opposition to the motion. The success of this strategy assumes o f that the opposing affidavit was the only pertinent evidence submitted in 155 The submission opposition to summary judgment. of a reply affidavit under any other circumstances is more likely to confirm than to negate the existence of a genuine issue of fact — and may even do so in this 156 tion. a situ B. In Attempting to Demonstrate the Absence of Material Factual Disputes, davits Are Distinctly Immaterial Reply Affi The submission of affidavits with a reply brief also will not assist ― material ‖ to the moving party in establishing that a factual dispute is not 157 the outcome of the case. Indeed, there is no need for the moving party to ddress the evidence submitted in opposition to its motion if the movant a 158 This is contends that any factual disputes in the case are not material. because it is unnecessary for immaterial disputed facts to be resolved in the 159 moving party ‘ s favor. 153 See Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001) (cautioning movant against relying on ―contradictory affidavit to n e gate the existence of a factual dispute‖). 154 See Crady v. Liberty Nat‘l Bank, No. NA 90 - 22 - C, 1992 WL 479270, at *8 (S.D. Ind. aff’d , 993 F.2d 132 (7th Cir. 1993) (finding conflicting affidavits from same Mar. 30, 1992), ness not credible); see also wi Robinson v. Globe Newspaper Co., 26 F. Supp. 2d 195, 198 (D. t Me. 1998) (noting party cannot defeat motion using same wi t ness‘s directly contradictory c tion). affidavits without explaining contradi 155 See Crady , 1992 WL 479270, at *8. The Crady court granted summary judgment where the only affidavit offered in opposition to summary judgment was the affidavit shown to be a n tradictory reply affidavit from the same affiant. Id. at *9. sham by the co 156 See supra note 150 and accompanying text (discussing denial of motion where inconsi s tent affidavits created factual dispute). 157 See Cook v. Shaw Indus., 953 F. Supp. 379, 383 (M.D. Ala. 1996) (observing movant‘s . . submission of ―rebuttal evidence only confirms a material issue of fact exists‖). . 158 See Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir. 1987) (―with regard to ̳materiality,‘ only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment.‖); SI Handling Sys., Inc. v. Heisley, 658 F. Supp. 362, 365 (E.D. Pa. 1986) (noting lack of factual dispute). ―It will avail the o nent of summary judgment nothing to establish the lack of a factual dispute if the issue in prop question is not an essential el ement of the opponent‘s claim or d e fense, i.e . , is not material or is not otherwise legally determinative of the outcome of the case.‖ Id. 159 See Unterberg v. Corr. Med. Sys., Inc., 799 F. Supp. 4 90, 494 (E.D. Pa. 1992) (―The
30 M OBERLY RY F 72 J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV S UFFOLK 160 , White for example, the court granted summary In v. Bruck judgment even though the parties had submitted differing versions of the ― facts, because the issue before the court was a question of law to which 161 al. ‖ s claims are materi The court none of the facts underlying plaintiff ‘ reached this conclusion even though the defendant did not submit a reply disputing the evidence the plaintiff presented in opposition to the motion, and the evidence that was in dispute was required to be construed in the 162 s favor s ‘ The court reasoned that even if all of the plaintiff ‘ plaintiff . evidence was true, that evidence would not preclude summary judgment because it was not material to the question of law raised in the defendant ‘ s 163 motion. arty claims are not Highlighting factual disputes the moving p terial by submitting additional evidence with a reply, only serves to m a strate the existence of factual issues , and therefore is not in the n demo 164 ty ‘ s interest. moving pa r Portfolio Technologies, Inc. v. Similarly, in 165 Church & Dwight Co the defendant submitted photographic evidence ., p and a su plemental expert witness report with its reply brief to support its ‘ s brief was not argument that evidence submitted with the plaintiff 166 material. The court denied the defendant ‘ s summary judgment motion, noting that its submission of additional evidence with its reply was inconsistent with its contention that there were no material factual disputes presence of factual issues . . . will not bar the granting of summary judgment when the issues of a terial to the controlling legal principles of the case.‖); Givens v. Chambers, 548 F. fact are not m Supp. 2d 1259, 1272 n.6 (M. D. Ala. 2008) (finding summary judgment appropriate where exis t ing factual disputes immaterial). 160 927 F. Supp. 1168 (W.D. Wis. 1996). 161 at 1169. Id. 162 See id. cf. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, at 1169, 1172; - 1363 (3d Cir. 1992) (―[W]here the non moving party‘s evidence contradicts the movant‘s, then t he non - movant‘s must be taken as true.‖); Erickson v. Wis. Dep‘t of Corr., 358 F. Supp. 2d 709, r 713 (W.D. Wis. 2005) (accepting opposing pa ty‘s factual assertion provided it was ―properly and sufficiently su p ported by admissible evidence‖). 163 White , 927 F. Supp. at 1169 (declining to consider contradictory facts because immater i al). 164 See Gowdish v. Eaton Corp., No. C - 78 - 295 - G, 1981 WL 20 41 (M.D.N.C. 1981) (noting see also Warren v. submission of contradictory affidavits points out existence of factual issues); Williams, No. Civ. A. 304CV537(JCH) 2006 WL 860998, at *9 n.5 (D. Conn. Mar. 31, 2006) (noting reply briefs highlighting factual m isrepresentations ineffective to support summary jud g ment). ―The . . . ̳ misrepresentations of fact‘ by the plaintiffs highlighted by the defendants in their reply brief largely demonstrate the number of material issues of fact that exist in this nd do not, contrary to the defendants‘ assertions, demonstrate their entitlement to action, a summary judgment.‖ Id. 165 No. Civ. A. 04 - 6340(JAG) 2006 WL 288082 (D.N.J. Feb. 6, 2006). 166 Id. at *3.
31 M OBERLY RY F 0 201 R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 73 ] 167 in the case. Instead of submitting additional evidence, the moving party in such a case should ackn owledge the factual dispute, or even concede, for r poses of the motion, that the opposing party s version of the facts is pu ‘ 168 The party may then use its reply to further argue that ― the motion is true. . . . factu al controversies in the grounded on a legal theory under which the 169 As one court explained, a movant may concede that ‖ case are irrelevant. s version of the facts is accurate and still demonstrate an opponent ‘ ment to summary judgment ― by citing relevant precedent to convince entitl e the [c]ourt tha t there is no legally cognizable theory upon which the 170 ‖ opposing party could obtain a judgment in his favor. REPLY AFFIDAVITS: TH E KEY TO PERPETUAL B RIEFING AND V. RD ENEMY OF THE LAST WO The foregoing analysis suggests that moving parties rarely should 171 bmit evidence with their summary judgment replies. Moreover, any su s permission ordinarily should reply evidence submitted without the court ‘ 172 Indeed, courts frequently reject reply evidence not only be disregarded. 167 at *3 (―Submitting . . . rebuttal of factual assertions, by way of new factual See id. factual disputes are not material, why assertions, undercuts [the defendant‘s] argument: if the b Fasules v. D.D.B. Needham Worldwide, Inc., No. 89 . . . supplemental [evidence]?‖); cf. su mit C 1078, 1989 WL 105264, at *2 (N.D. Ill. Sept. 7, 1989) (noting factual assertions in reply inco patible with claim that only legal principles are at issue). m 168 , In re Digital Equip. Corp. Secs. Litig., 601 F. Supp. 311, 317 (D. Mass. 1984) See, e.g (noting summary judgment motion proper when ―the many factual contro versies in the case are irrelevant‖); see also Felch v. Air Fla., Inc., 866 F.2d 1521, 1525 (D.C. Cir. 1989) (observing movant ―did note a dispute,‖ but stated disputed facts were not material); Mays v. Travelers Prop. Cas. Co. of Am., No. Civ. A. 04 D - 486 CBS, 2005 WL 2406108, at *1 (D. Colo. Sept. 28, 2005) - . . . are, in fact, di s puted, but maintains that those facts, (―Defendant acknowledges that the facts ningham v. Local 30, Int‘l Union of Operating Eng‘rs, AFL - even if true, are immaterial.‖); Cu n CIO, 234 F. Supp. 2d 383, 387 (S.D.N.Y. 2002) (finding moving party‘s acknowledgement of non - material factual dispute does not preclude summary judgment); Houston v. Escott, 85 F. . . . Supp. 59, 60 (D. Del. 1949) (―[D]efendant‘s counsel contended that the uted facts are not disp material and therefore conceded that the opposition affidavits should be accepted on these s di puted facts.‖). 169 Digital Equip. Corp. Secs. Litig., 601 F. Supp. at 317 (emp hasis omitted); see also In re supra note 168 i ties for legal argument in reply briefs). (explaining opportun 170 SI Handling Sys . v. Heisley, 658 F. Supp. 362, 365 (E.D. Pa. 1986). 171 See supra notes 131 – 170 and accompanying text (explaining submission of evidence with ile); Recent William M. Hensley, summary judgment replies is generally fut see also C p , Develo RANGE ments on the Summary Judgment Front OUNTY L AW ., Dec. 2002, at 6, 7 O (indicating contradictory deposition testimony is ―only . . . form of evidence which might be appropriate . . . [to] trump mendacio us de c laration testimony‖). 172 a Fed. R. Civ. P. 56(e)(1) (―The court may permit an affid See vit to be supplemented or opposed by . . . additional affidavits.‖) (emphasis added); United States v. Jo hns - Manville Corp.,
32 M OBERLY RY F 74 J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV S UFFOLK 173 but also is likely to be futile, because the submission of such evidence because consideration of the evidence may deprive the opposing party of a 174 full and fair opportunity to respond to the motion. This prejudice to the party opposing summary judgment led the 176 175 . to Lewis v. Zilog, Inc disregard a reply declaration. court in i cally, in the plaintiff objected on two procedural grounds to Specif Lewis, s consideration of a declaration submitted with the defendant ‘ s the court ‘ 177 ply. Because the local rules governing summary judgment proceedings r e did not permit the plaintiff to respond to the reply, the plaintiff was c tively precluded from addressing the evidence contained in the effe 178 ‘ Accordingly, the court sustained the plaintiff ‘ s defendant s declaration. 179 eclaration. objection and declined to consider the d 180 Similarly, in Lalco v. Exeter Energy Ltd. Partnership. the , n tiff submitted evidence with its reply that the defendant did not refute plai e cause the applicable local rules did not authorize the filing of a b 181 Although the plaintiff ‘ s reply evidence was therefore not surreply. ‘ contradicted, the court nevertheless denied the plaintiff s summary 182 The court held that, having made a sufficient ― judgment motion. initial ‖ the defendant factual demonstration in opposition to summary judgment, 259 F. Supp. 440, 455 (E.D. Pa. 1966) (stating Rule 56(e) requires court permission before g ment motion). submitting supplemental materials for summary jud 173 See supra notes 150 , 157 - 159 , 164 and accompanying text (discussing futility of reply affidavits). 174 See supra 127 - 130 and accompanying text (discussing pr e judice associated with notes late submissions). 175 908 F. Supp. 931 (N.D. Ga. 1995). 176 Id. . at 959 177 Id. 178 See id. (sustaining plaintiff‘s objection that she had no opportunity to respond to new Lewis evidence in reply brief). In the federal district in which arose, surreplies are ―not m plated by the Local Rules . . . conte .‖ Elliott v. Am. Int‘l Life Assu rance Co. of N.Y., 394 F. Supp. 2d 1357, 1362 (N.D. Ga. 2005). 179 See Lewis , 908 F. Supp. at 959 (emphasizing fairness concerns to plaintiff); cf. George a dis v. County of Franklin, No. C - 2 - 99 - 1027, 2000 WL 1459369, at *1 (S.D. Ohio Sept. 22, 2000) (finding improper the submission of affidavit for first time with reply memora n dum); - - P - H, 2000 WL 760729, at *2 n.2 (D. Me. Andrews v. Emerald Green Pension Fund, No. 98 436 s attempt to add facts in reply ―unfair and inappropriate‖ because Jan. 26, 2000) (finding movant‘ - movant cannot respond). non 180 989 F. Supp. 425 (D. Conn. 1997). 181 See id. at 429 n.1 (refusing to recognize evidence in surreply). 182 at 989 F. Supp. at 430 (concluding defendant met its burden on summary See id. jud g ment); cf. Portfolio Techs., Inc. v. Church & Dwi ght Co., No. 04 - 6340 (JAG), 2006 WL 288082, at *3 (D.N.J. Feb. 6, 2006) (―[F]or a party to offer new factual support in a reply brief, and then claim entitlement to summary judgment because the opponent has not disputed this factual support, is manifestly unre a sonable.‖).
33 M OBERLY RY F 0 ] R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 75 201 required to refute the additional facts asserted in the plaintiff s was not ‘ 183 s motion. reply to defeat the plaintiff ‘ These cases advance the premise that a moving party should not be allowed to use a reply affidavit to negate the existence of a genuine issue of m aterial fact because the opposing party has no explicit right to respond to 184 s reply papers. Conversely, when a court does permit ‘ the moving party the moving party to submit a reply affidavit, the opposing party should e new evidence in order to ensure that have an opportunity to respond to th it has been afforded the procedural rights to which it is entitled under Rule 185 56. These principles are illustrated by the analysis in Beaird v. Seagate 186 Technology, Inc ., ry where the parties opposing a motion for summa judgment challenged the district court s refusal to permit them to submit a ‘ 187 ‘ s reply presented new evidence, the surreply. Because the moving party an initial summary judgment ― nonmovants analogized the reply to 188 ‖ o m ey were deprived of the notice tion. The nonmovants argued that th 183 Lalco , 989 F. Supp. at 429 n.1. (―The Local Rules give no re ognition to a ̳surreply‘ and c Owsiak v. Kimc . .‖); cf. thus defendant is under no requirement for further filing . o Corp., No. . 95 C 4116, 1997 WL 722990, at *11 (N.D. Ill. Nov. 13, 1997) (holding evidence provided with moving party‘s reply did ―not extinguish any genuine dispute‖). 184 See Desrosiers v. Hartfor d Life & Accident Ins. Co., 515 F.3d 87, 91 (1st Cir. 2008) (noting the parties to the appeal ―[did] not dispute [the] general premise‖ that ―a party seeking su m mary judgment may not add new facts or legal arguments in a reply‖); Seay v. Tenn. Valley Auth. , 339 F.3d 454, 481 (6th Cir. 2003) (finding Rule 56(c) conflict where movant submits reply p ly addressing them); Ficq v. Tex. Instruments Inc., No. 3:02 CV - affidavits but court bars surre - D, 2004 WL 576057, at *2 (N.D. Tex. Mar. 1, 2004) (―[I]t is wel . - . l settled that . the 1273 summary judgment nonmovant is not entitled to file a reply after [the moving parties] file their r e ply.‖); McCulley v. U.S. Dep‘t of Veterans Affairs, 851 F. Supp. 1271, 1275 n.4 (E.D. Wis. - moving party is not au thorized to file a ̳reply to the movant‘s reply brief‘ under 1994) (―[A] non the Federal Rules of Civil Procedure . . .‖). But see Lacher v. West, 147 F. Supp. 2d 538, 540 . u ments, raised for the firs t (N.D. Tex. 2001) (suggesting court will consider evidence, but not arg time in reply). 185 Cuenca v. Univ. of Kan., 265 F. Supp. 2d 1191, 1199 (D. Kan. 2003), aff’d , 101 Fed. See Appx. 782 (10th Cir. 2004) (granting nonmoving party opportunity to respond to new evide nce submitted in moving party‘s reply). The court in Cuenca explained that under Rule 56(c) ―the a nonmoving party is to be given notice and a reason ble opportunity to respond to the movant‘s e rials.‖ Id. ; summary judgment mat cf. Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1192 (10th Cir. 2006) (―[I]f the district court does preclude a surreply, then the court can avoid error only by not relying on the new materials . . . in the movant‘s reply brief.‖). 186 145 F.3d 1159 (10th Cir. 1998). 187 See id. at 1163 64 (applying Rule 56 analysis to determine propriety of denial of leave to - file surreply). 188 Id. at 1164. Presentation of new evidence in a reply in support of summary judgment is one of the few situations in which the submission of a surreply might be permitted. ., See, e.g Stephens v. Trust for Pub. Land, 475 F. Sup p. 2d 1299, 1303 - 04 (N.D. Ga. 2007) (finding surreply unwarranted where movant‘s reply only addressed a r guments raised in response to summary judgment motion); Sublet v. John Wiley & Sons, Inc., 351 F. Supp. 2d 836, 841 (S.D.
34 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 76 UFFOLK and opportunity to respond to which they were entitled under Rule 56(c) could not and that the court award summary judgment without first 189 The c ourt in allowing them to respond to the new evidence. i rd Bea istrict courts must give the opposing party a reasonable acknowledged that d 190 opportunity to respond to the evidence supporting summary judgment. Rule 56 neither expressly authorizes nor expressly prohibits the 191 However, the opposing party ‘ filing of a surreply. spond to s right to re dence submitted in support of a summary judgment reply is implicit in i ev the requirement that the opposing party receive notice and an opportunity 192 The Beaird to respond before the court rules on the motion. court relied ing that when a district court considers evidence on this reasoning in hold submitted with a reply, it cannot prohibit the nonmoving party from 193 ing to that evidence. respon d This reasoning suggests that any reply affidavits should be pr ― in the form of a motion to file additional evidence, e sented to the court 194 The ‖ with opportunity given to the opposing side to respond in kind. , 463 F.3d 73 Ind. 2004), aff’d 1 (7th Cir. 2006) (discussing local rule allowing surreplies only e lied upon evidence not previously cited‖). when reply ―r 189 , 145 F.3d at 1164. Other courts have taken the position of the nonmoving See Beaird party in Beaird See, e.g. , Edwards v. H o neywell, Inc., 960 F.2d 673, 675 (7th Cir. 1992) . o (holding moving party‘s assertion of issue in memorandum filed subsequent to its m tion . . ―reset[s] the clock‖); Black v. TIC Inv. Corp., 900 F.2d 112, 116 (7th Cir. 1990) (holding . district court should not consider new evidence in reply without affording nonmovant opportunity to r e spond). 190 See Beaird concerns in allowing reply , 145 F.3d at 1164 (emphasizing fairness a affid vits). 191 F ED . R. C IV . P. 56( C )(1)(2009) ( establishing default provisions for a motion, See 01, 113 (D.D.C. 2002) response, and reply); Robinson v. Detroit News, Inc., 211 F. Supp. 2d 1 (acknowledging the Federal Rules‘ silence on the issue of surreplies); King County v. Rasmu sen, 143 F. Supp. 2d 1225, 1228 (W.D. Wash. 2001), aff’d , 299 F.3d 1077 (9th Cir. 2002) s (same). 192 Seay v. Tenn. Valley Auth See , 339 F.3d 454, 481 - 82 (6th Cir. 2003) (noting . applicabil i ty of notice and opportunity to respond). ―[T]he purposes of notice and opportunity to respond extend Rule 56(c) to the situation where the moving part y submits in a reply brief new . . . evidence in support of its motion for summary judgment, and require a district court to IV allow the nonmoving party an opportunity to respond.‖ see also F ED . R. C ; . P. 6(c)(2) Id. (2009) (―An affidavit supporting a mot ion must be served with the motion.‖); St e vens v. Deluxe Fin. Servs., Inc., 199 F. Supp. 2d 1128, 1130 (D. Kan. 2002) (finding nonmoving party‘s oppo r tunity to respond to new evidence implicit in Rule 56 notice requirement); supra notes 175 - 182 . 193 See Beaird 145 F.3d at 1165 (discussing Rule 56(c)). Despite lower court holdings to the mit its holding in Beaird to replies asserting contrary, the Tenth Circuit subsequently refused to li ―new legal arguments supported by new materials.‖ Doeble v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1139 n.13 (10th Cir. 2003). In Doeble , the Tenth Circuit specifically held that the nonmoving party is enti tled to submit a surreply whenever the court relies upon evidence pr e sented for the first time in a reply. Id. 194 Burciaga v. West, 996 F. Supp. 628, 639 (W.D. Tex. 1998), aff’d , 162 F.3d 94 (5th Cir.
35 M OBERLY RY F 0 201 R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 77 ] s right to respond in kind contemplates the submission of ‘ opposing party plemental controverting affidavits, because any legal arguments made p su ly in a surreply brief would be unlikely to preclude summary e sol 195 Indeed, the opposing party may not need the court ‘ judgment. s permission to submit affidavits with (or in lieu of) a surreply brief in this situation, as long as those affidavits are submitted within twenty - one days 196 vant o s reply papers. of service of the m ‘ ‘ s submission of a surreply brief Unfortunately, the opposing party does not necessarily spell an end to the and supplemental affidavits 197 Because the movant has the burden of proof on a mo briefing. tion for 198 the moving party may be entitled to respond to the summary judgment, 199 posing party ‘ s post - o ― last word. ‖ p reply submissions in order to have the Indeed, surreplies are disfavored precisely because they are often perceived ‘ ‘ s traditional s attempt to usurp the moving party to be the opposing party 200 right to the last word in the briefing of its motion. 1998). 195 See supra notes 150 , 157 - 159 , 164 ; see also, e.g ., Green v. New Mexico, 420 F.3d 1189, 1197 n.6 (10th Cir. 2005) (―We note that [the] surreply . . . does not offer any evidence to rebut the mat rials supplied by the [moving party] in its reply brief‖); Johnson v. Univ. of Iowa, 408 F. e aff’d 431 F.3d 325 (8th Cir. 2005) (allowing nonmovant‘s Supp. 2d 728, 737 (S.D. Iowa 2004), , cause they present factual issue); Johnson v. Sw. Bell Tel. Co., 819 F. Supp. e surreply materials b aff’d , 22 F.3d 1094 ( 5th Cir. 1994) (―[I]t is insufficient for the 578, 582 (E.D. Tex. 1993) vant to argue in the abstract that the legal theory involved . . . encompasses some factual nonm o questions.‖). See generally Scherer v. Rockwell Int‘l Corp., 975 F.2d 356, 361 (7th Cir. 1992) x plaining ―[a]r (e gument is not evidence upon which to base a denial of summary judgment.‖). 196 , Smithkline Beecham PLC v. Teva Pharms. USA, Inc., Nos. 04 0215, 05 - See, e.g. - 0536(NLH)(JS), 2007 WL 1827208, at *3 (D. N.J. June 22, 2007) (holding supplemental affidavit submitted with surreply may be ―timely and permissible‖ under Rule 56 (c) and (e)); Pike v. d Caldera, 188 F.R.D. 519, 534 (S.D. Ind. 1999) (conclu ing permission to submit new evidence with surreply unnece ssary if re s ponsive to evidence in movant‘s reply). 197 See Paper Sys., Inc. v. Mitsubishi Corp., 967 F. Supp. 364, 366 (E.D. Wis. 1997) (noting the allowance of a sur - reply could lead ―to a sur - sur - reply.‖); Garrison v. Ne. Ga. Med. Ctr., Inc., 66 F. Supp. 2d 1336, 1340 (N.D. Ga. 1999) (noting regular admission of surreplies would case ―endless volley of briefs‖). 198 See generally - Vol vo - Metairie, Inc. v. Volvo Sw., Inc., 479 F.2d 135, 139 (5th Benton Cir. 1973) (―It is well established that on a motion for summary judgment, the moving party ca ries the burden of proof, and he must show that no genuine issue of material fact exists even r though at trial his opponent [would have] the burden of proving the facts alleged.‖). 199 See Clutts v. Dillard‘s, Inc., 484 F. Supp. 2d 1222, 1226 (D. Kan. 2007) (permitting defendant to reply to plainti ff‘s surreply b e cause defendant bears burden of proof); Onyx Waste Servs., Inc. v. Mogan, 203 F. Supp. 2d 777, 778 n.1 (E.D. Mich. 2002) (granting defendant‘s e quest to file reply to surreply); Springs Indus., Inc. v. Am. Motorists Ins. Co., 137 F.R.D. 23 8, r 239 (N.D. Tex. 1991) (―In our jurisprudence the party who must persuade the court of the m e rits of the relief it seeks is almost always given the final word.‖). 200 See Lacher v. West, 147 F. Sup p. 2d 538, 539 (N.D. Tex. 2001) (observing surreplies ―usually are a strategic effort by the nonmovant to have the last word‖); Cotracom Commodity Trading Co. v. Se a board Corp., 189 F.R.D. 655, 659 (D. Kan. 1999) (noting general rule against
36 M OBERLY RY F S J OURNAL OF T RIAL & A PPELLATE A DVOCACY [Vol. XV 78 UFFOLK Predictably, permitting the moving party to make a further s ‘ s surreply may exacerbate submi sion in response to the opposing party 201 this pro Such a submission by the movant might prompt additional b lem. 202 filings by the party opposing summary judgment. In this fashion, the s submission of a reply affidavit could embroil the court in a ‘ ― moving party cycle of response and counter filings ad - response with evidentiary 203 ‖ infinitum Such extended briefing would prevent the court from . o disposing of the m tion expeditiously, thereby undermining the important 204 This consequence, however efficiency objectives of Rule 56. eason for prohibiting the unintended, provides a further persuasive r submission of reply affidavits in all but the most compelling 205 circumstances. VI. CONCLUSION The opportunity to submit a reply typically enables a party moving Howeve r, for summary judgment to have the last word in the proceedings. a moving party occasionally will use this opportunity to attempt to submit additional affidavits or other evidentiary materials in support of its motion. surreplies hel ps courts determine finality of matters and minimize ―last word‖ battles); C & F Packing Co. v. IBP, Inc., 916 F. Supp. 735, 741 (N.D. Ill. 1995) (discussing the nonmovant‘s f e fort to use surreply to ―get in the ̳last word‘‖). 201 See Am. Eyewear, Inc. v. Peeper‘s Sunglasses & Accessories, Inc., 106 F. Supp. 2d 895, x tended summary judgment proceedings due to filing of 898 n.7 (N.D. Tex. 2000) (explaining e both surreply and final reply). 202 See, e.g. , epicRealm Licensing, LLC v. Autoflex Leasing, Inc., 492 F. Supp. 2d 608, 618 (E.D. Tex. 2007) (noting nonmoving party filed response to moving party‘s sur - surreply); Am. Tel. & Tel. Co. v. NOS Co mmc‘ns, Inc., 830 F. Supp. 225, 230 n.1 (D.N.J. 1993) (permitting o p posing party‘s ―sur - sur - surreply brief‖). 203 Burciaga v. West, 996 F. Supp. 628, 639 (W.D. Tex. 1998), , 162 F.3d 94 (5th Ci r. aff’d 1998) (rejecting plaintiff‘s argument that court wrongfully excluded evidence attached to a reply document); Tetra Techs., Inc. v. Harter, 823 F. Supp. 1116, 1120 (S.D.N.Y. 1993) see also ing if reply affidavits were allowed, ―a sur - t would be necessary . . . and so on (no reply affidavit ad infinitum ‖). 204 text accompanying supra note 115 ; See Orsi v. Kir k wood, 999 F. 2d 86, 91 (4th see also Cir. 1993) (noting Rule 56 procedures designed to ―assure . . . prompt disposition of cases‖); Wilder v. Prokop, 846 F.2d 613, 626 (10th Cir. 1988) (―The purpose of Rule 56 is to permit expeditious disposition of cases in which there is not a su stantial issue of fact.‖). b 205 Tishcon Corp. v. Soundview Commc‘ns, Inc., No. 1:04 See CV - 524 - JEC, 2005 WL - 6038743, at *9 (N.D. Ga. Feb. 15, 2005) (―[T]he procedure . . . if allowed in every case, would greatly extend the time require . . . . This the Court d to deal with a [summary judgment] motion cannot allow.‖); see also Blackhawk Molding Co. v. Portola Packaging, Inc., 422 F. Supp. 2d 948, 952 (N.D. Ill. 2006) (―[I]f the court were to permit a movant to file . . . additional facts in response to a non movant‘s . . . - additional facts, it would be obliged to allow the non - movant to respond, creating a hall of mirrors that would hardly facilitate an efficient resolution of the i s sues.‖).
37 M OBERLY RY F 0 R EPLY A FFIDAVITS IN S UMMARY J UDGMENT P ROCEEDINGS 201 79 ] The courts generally view this tactic with disfavor. Courts disfavor these supplemental materials , in part, because allowing additional evidence with replies is likely to prompt yet another round of factual submissions from 206 the party opposing the motion. In addition, the submission of affidavits with a reply may have the f confirming the existence of genuine issues of unintended practical effect o 207 Therefore , the moving material fact precluding summary judgment. party should limit use of the opportunity to reply to situations where it can i l luminate deficiencies in the opposing party ‘ s factual submiss ions, or clarify the legal arguments made by the parties in their opening briefs. If the mo ing party submits additional supporting evidence with its reply, the v last word on the issues raised by its motion is unlikely to be heard until ― ‖ the parties prese nt their closing arguments at trial. 206 See supra notes 194 - 200 and accompanying text (noting that reply affidavits often cause nonmoving party to submit additional evidence). 207 See supra note 150 (discussing that inconsistent evidence presented in reply a f fidavit only confirms existence of factual issues).
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