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U.S.A. Ex Rel. Joe Liotine v. Cdw-Government


May 17, 2013


The opinion of the court was delivered by: Frazier, Magistrate Judge:


Before the Court are CDW-Government, Incorporated's ("CDW-G") motion to strike Liotine's replies (Doc. 321) and motion for leave to file a sur-reply (Doc. 322). For the following reasons, CDW-G's (Doc. 321) motion to strike is denied and CDW-G's (Doc. 322) motion for leave to file a sur-reply is stricken.

CDW-G has filed a motion to strike the replies filed by Liotine on March 28, 2013. See Doc. 321. If this relief is not granted, CDW-G seeks to file what is essentially a sur-reply to Liotine's replies. See Doc. 322. Because Liotine supplemented its evidence in his reply, CDW-G argues that it would be prejudiced by not having an opportunity to file another response.

Each district court in federal system establishes its own outer-limits on motion practice. This district has established that, in most cases, a motion and a response to the motion, each no greater than 20 pages in length, is adequate to address the requested relief. See SDIL-LR 7.1. However, the Court will sometimes accept a reply-brief in "exceptional circumstances." Id. All briefing ends there. See id. (Under no circumstances will sur-reply briefs be accepted.).*fn1

It has not gone unnoticed that counsel for CDW-G has submitted a 25-page response to the motions for attorney fees with a large portion of the brief containing single-spaced argument. Counsel for CDW-G has submitted the excessive brief despite knowledge of the 20 page limit provided by Local Rule 7.1(d). Throughout this litigation, CDW-G has repeatedly requested leave to brief in excess of the 20-page limit (see Docs. 85, 208, 237) and objected when opposing counsel made similar requests (see Doc. 230). CDW-G's response brief is likely over 30 pages when the single-spaced text is converted. The Court will not strike the brief at this juncture because that relief has not been requested, and it would needlessly delay and increase the cost of this litigation.

With respect to the (Doc. 321) motion to strike, Liotine has identified the exceptional circumstances that warrant the filing of a reply brief. See Doc. 313 at 1 n.1. The undersigned agrees that the stated reasons are circumstances for which reply-briefing is routinely allowed, and disagrees with CDW-G's argument that it will be prejudiced if it is not able to file a sur-reply. Contrary to CDW-G's assertion, nothing raised in Liotine's reply briefs can be construed as a new argument. Liotine has not strayed outside the scope of what has been presented in the fee petition or the response.*fn2 The only thing adverse to CDW-G in this instance is precluding it from having the last word, something every attorney undoubtedly covets. However, there must be an ending point to briefing, and our Local Rules clearly establish that endpoint. As CDW-G is well aware, there is nothing out of the ordinary in our legal system about providing an opportunity to the party bearing the burden of proof to rebut evidence presented by the non-moving party. Furthermore, CDW-G will have an opportunity to object to anything it believes is overly prejudicial by virtue of the fee petitions being handled by Report and Recommendation. The (Doc. 321) motion to strike is denied.

The (Doc. 322) motion for leave to file a sur-reply begins by stating the reasons CDW-G believes that further briefing is warranted. It should have stopped there. Instead, CDW-G devotes 11 more pages to the 25-30 pages (5-10 more pages than the maximum number of pages permitted by Local Rule 7.1(d)) it filed with its response arguing the merits of the fee petition. It then attached nearly 200 pages of exhibits to its (Doc. 322) motion for leave to file. Nothing beyond page one of the (Doc. 322) motion should have been submitted by CDW-G at the time the motion was filed. Only when the Court determined that leave to file was appropriate should the additional information have been filed. As described above, this district court has established rules that explicitly tell litigants that the response and the reply (in some cases) is the endpoint to briefing in this district. See SDIL-LR 7.1. Despite this explicit instruction, counsel for CDW-G on two occasions inserted the additional briefing and evidence into its motions prior to the requested leave being granted. See Docs. 319, 322. The (Doc. 322) motion for leave to file a sur-reply is stricken in its entirety and will not be considered.*fn3



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