The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
There is presently pending the
plaintiff's Motion for Preliminary Injunction. On May 23, 2011, the
plaintiff filed its Reply brief in support of the Motion. That filing
prompted the defendants' Motion for Leave to File a Sur-Reply, which
contends that the Reply relies on cases not previously cited by either
side, advances new arguments that could and should have been raised in
the initial supporting Memorandum, and relies on evidence that, the
Motion argues, was excluded at the hearing on the preliminary
injunction. The proposed Sur-Reply addresses five issues.*fn1
The plaintiff has objected to the motion.
"A reply brief is for replying, not for raising a new ground," Hussein v. Oshkosh Motor Truck Company, 816 F.2d 348, 360 (7th Cir. 1987)(Posner, J., concurring), or for advancing a position that could have been advanced in the opening brief. Delaying the presentation of an argument until the reply brief in order to get the last word is not only unfair to one's opponent -- it is a form of "sandbagging,"Otto v. Variable Annuity Life Insurance. Co., 134 F.3d 841, 854 (7th Cir. 1998) -- it can effectively result in a one-sided presentation on that argument, which in turn can adversely affect the accuracy of the judicial process, which depends on comprehensive presentations by both sides. Cf., United States v. Cronic, 466 U.S. 648, 655 (1984); Adamson v. California, 332 U.S. 46, 59 (1947) (Frankfurter, J., concurring); Burdett v. Miller, 957 F.2d 1375, 1380 (7th Cir. 1992). And, withholding arguments until a reply brief results in an inefficient use of judicial resources, see Otto,, 134 F.3d at 854 and "divert[s] time from litigants in other cases patiently waiting in the queue for the limited time of federal judges." Channell v. Citicorp Nat. Services, Inc., 89 F.3d 379, 386 (7th Cir. 1996).
Thus, arguments raised for the first time in a reply brief are often deemed waived. See Dexia Credit Local v. Rogan, 629 F.3d 612, 625 (7th Cir. 2010); United States v. Boyle, 484 F.3d 943, 946 (7th Cir. 2007); United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006); Bodenstab v. County of Cook, 569 F.3d 657, 658 (7th Cir. 2009). Nonetheless, courts have discretion to allow the filing of a sur-reply rather than refusing to consider the belatedly advanced argument. Johnny Blastoff, Inc. v. Los Angeles Rams Football Co., 188 F.3d 427, 439 (7th Cir. 1999), cert. denied 528 U.S. 1188 (2000); Beard v. Seagate Technology, 145 F.3d 1159 (10th Cir. 1998); Commonwealth Edison v. NRC, 830 F.2d 610, 621 (7th Cir. 1987); Fenster v. Tepfer & Spitz, Ltd., 301 F.3d 851, 859 (7th Cir. 2002). Allowing the filing of a sur-reply ensures the aggrieved party's right to be heard and the court's vital interest in having a full presentation from both sides.
The defendants have not moved to strike the arguments and authority they claim were not advanced until the reply brief. It is thus not necessary to reach the question of whether this is an appropriate case for invocation of the waiver doctrine. Instead, they have asked to file a sur-reply. The most efficient use of judicial resources in this case is to grant the motion, allow the five-page brief to be filed, and to consider the points made in it, along with those argued by Pampered Chef.