The opinion of the court was delivered by: BYRON CUDMORE, Magistrate Judge
This matter comes before the Court on Plaintiff Commonwealth
Insurance Company's Motion to Strike Titan's Reply in Support of
Titan's Motion for Summary Judgment (d/e 56). Commonwealth asks
the Court to strike Defendant Titan Tire Corporation's Reply in
Support of Titan's Motion for Summary Judgment (d/e 54) based on
alleged violations of Local Rule 7.1(D)(3). For the reasons set
forth below, Commonwealth's Motion to Strike is allowed, in part,
and denied, in part.
Local Rule 7.1(D)(3) allows a summary judgment movant to file a
reply brief. The rule states:
The reply shall include the following subsections,
(a) Reply to Additional Material Facts List by number the additional facts asserted in
Section (b)(4) of the response. For each fact, state
(1) it is conceded to be material and undisputed,
(2) it is material but disputed, in which case
provide citations to evidentiary documentation,
attached as exhibits and referenced by specific page,
(3) immaterial, in which case explain the reason.
Succinctly and directly address any matters raised in
the response with which the movant disagrees. THE
REPLY SHALL BE LIMITED TO NEW MATTERS RAISED IN THE
RESPONSE AND SHALL NOT RESTATE ARGUMENTS ALREADY
RAISED IN THE MOTION.
Local Rule 7.1(D)(3). Moreover, under Local Rule 7.1(D)(5),
"[t]he argument section of a reply shall not exceed five
double-spaced pages in length."
Commonwealth asserts that Titan's Reply Brief violates Rule
7.1(D) in three ways: (1) the argument section exceeds five
pages; (2) Titan improperly restates its own statement of fact;
and (3) the argument is not limited to new matters raised in the
response. Turning first to the length of the argument section,
the Court notes that Titan's argument section begins at the top
of page 5 of the Reply Brief, continues on pages 6, 7, 8, and 9,
and then concludes with two lines at the top of page 10. While
this section exceeds five double-spaced pages by two lines, the
Court finds this to be a de minimus violation. The Court will thus allow the argument
section on pages 5 through 10 to stand. See Little v. Cox's
Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) (stating "the
decision whether to apply [a local] rule strictly or to overlook
any transgression is one left to the district court's
Commonwealth further asserts that subsection B of Titan's reply
brief improperly restates Titan's own statement of facts and
should be counted as argument. Subsection B, which begins on page
2 and concludes at the bottom of page 4, is entitled, "The
Majority of Titan's Facts Supporting Summary Judgment Are
Undisputed By Commonwealth and the `Disputes' Commonwealth
Attempts to Raise Do Not Defeat the Motion." By Titan's own
admission, subsection B "presents a succinct explanation which
specifically responds to Commonwealth's grounds for disputing
Titan's material facts supporting summary judgment." Response in
Opposition to Commonwealth's Motion to Strike Titan's Reply Brief
(d/e 58), p. 2. Local Rule 7.1(D)(3), however, does not provide
for such a response. The rule allows the movant to reply to
additional facts asserted in the Additional Material Facts
section of the response. Titan includes such a reply in subsection A of its Reply Brief. Subsection B is outside the
scope of Local Rule 7.1(D)(3), and the Court orders it stricken.
Finally, Commonwealth asserts that Titan fails to limit its
argument to new matters raised in the response as required under
Local Rule 7.1(D)(3)(b). The Court finds any violation of Rule
7.1(D)(3)(b) to be de minimus, and Commonwealth's request to
strike the Reply Brief on this basis is denied. See Little,
71 F.3d at 641.
THEREFORE, Plaintiff Commonwealth Insurance Company's Motion to
Strike Titan's Reply in Support of Titan's Motion for Summary
Judgment (d/e 56) is ALLOWED, in part, and DENIED, in part. The
Court strikes subsection B of Defendant Titan Tire Corporation's
Reply in Support of Titan's Motion for Summary Judgment (d/e 54),
which begins on page 2 and concludes at the bottom of page 4.
Commonwealth's Motion to Strike is DENIED in all other respects.
IT IS THEREFORE SO ORDERED.
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