United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole, Magistrate Judge.
defendant has filed, in eight abbreviated paragraphs, a
motion that asks to continue fact discovery, expert
disclosures and the dates for the filing of dispositive
motions, “pending settlement negotiations.” [Dkt.
#35]. The Motion did not acknowledge that the court adopted
the discovery schedule proposed by the
parties. The motion states in conclusory form that
additional time is needed for discovery because this is not a
simple “damages prove-up case.” [Dkt. #35,
¶6]. It goes on to say that the request for extension is
timely and seeks to extend fact discovery to 11/30/16, with
expert discovery to be completed by 1/31/17. Dispositive
motions are to be filed, according to the motion, by 2/28/17.
The motion contends that the question of indemnification for
attorneys fees and costs under ERISA is far more complex than
the plaintiff acknowledges and “will require
substantial discovery” if the parties “cannot
reach an accord in their current settlement
negotiations.” [Dkt. #35 at ¶6]. This history of
these “negotiations” is not discussed in the
motion. Finally, the Motion notes that the plaintiff's
counsel objects to any extension.
plaintiff's Response consists of five brief paragraphs.
It argues essentially that there was ample time to take
discovery under the agreed to discovery schedule, and that
the defendant “has not initiated any formal
discovery.” [Response, Dkt. #38 at 1]. The Response
further states that the defendant's account receivable
had been delinquent for almost four years, and that the
plaintiff is “prejudiced by every day that passes
without getting paid.” The Response concludes:
“As for pending settlement negotiations as bases for
extending the discovery deadline, we note only that as of
filing of this Response, defendant has made no offers of
settlement. So, we really do not know to what negotiations
defendant's Motion refers.” [Dkt. #38 at 2].
defendant's Reply consists of eight unnumbered pages, not
a single allegation of which could not and should not have
been in 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 or development of an argument until
the reply brief in order either to get the last word or to
develop the argument in the first place 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 is unfair
to the court. It can effectively result in a one-sided
presentation on the delayed or developed argument, which in
turn can adversely affect the accuracy of the judicial
process, which depends on comprehensive and adversarial
presentations. Cf., United States v. Cronic, 466
U.S. 648, 655 (1984); Adamson v. California, 332
U.S. 46, 59 (1947) (Frankfurter, J., concurring); Alioto
v. Town Of Lisbon, 2011 WL 2642369, 5 (7th
Cir. 2011); Burdett v. Miller, 957 F.2d 1375, 1380
(7th Cir. 1992). And, withholding arguments until a reply
brief can result 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).
arguments raised essentially for the first time or first
developed 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
(7thCir. 2006); Bodenstab v. County of
Cook, 569 F.3d 657, 658 (7th Cir. 2009).
Nonetheless, courts have authority to allow the filing of a
sur-reply rather than refusing to consider the belatedly
advanced or developed argument. Johnny Blastoff, Inc. v.
Los Angeles Rams Football Co., 188 F.3d 427, 439
(7thCir. 1999), cert. denied 528 U.S.
1188 (2000); Beard v. Seagate Technology, 145 F.3d
1159 (10thCir. 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. However, the court has the
inherent discretion as to how to proceed. Cf. Crawford-El
v. Britton, 523 U.S. 574, 598 (1998); Langnes v.
Green, 282 U.S. 531, 541 (1931).
plaintiff has not moved to strike the argument and authority
not advanced meaningfully, if at all, 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 or one in which that doctrine should be raised by
the court sua sponte. Nonetheless, I have the
discretion not to consider the rather detailed exegesis in
the Reply of the Douglin litigation or the factual
details alleged in the Reply that could easily and should
have been advanced in the Defendant's Motion to prove
that “good cause” underlies the Motion. [Dkt. #35
significant that the defendant's Reply [Dkt. #39] does
not respond to the allegation that the movant has not
initiated any form of discovery, has made no offers of
settlement, and that the Defendant's counsel does not
know to what negotiations the Motion refers. In short, there
would appear to be a good deal of strength to the
Plaintiff's contention that the Motion “offers no
compelling reason for extending the discovery schedule except
to catch up for time lost by [defendant's]
idleness.” [Dkt. #38 at 2]. And finally, it should be
noted that the defendant's Reply now
“amend[s]” its request. But no date is given for
responses and replies to dispositive motions. This
effectively means that the dispositive motions will not be
completed until 4/15/17, which date does take into account
time for responses and replies.
reason for the Motion is the defendant's claimed
realization that the “plaintiff's work is far more
complex, and will require substantial discovery if [the
parties] cannot reach an accord in their current settlement
negotiations.” [Dkt. #39 at unnumbered p. 7]. All this,
of course, would have been known long ago to the defendant,
and in any event, “complex[ity]” of the
plaintiff's work is for the plaintiff to allege, not the
defendant. And the plaintiff has made no such claim.
Motion to Continue Discovery Deadlines [Dkt. #35] is
therefore denied. However, the parties should be given a
chance to resolve amicably the present dispute. Settlement of
cases is a favored avenue of dispute resolution in the
federal courts. Marek v. Chesny, 473 U.S. 1 (1985).
Indeed, most cases today are settled and not disposed of by
trial. United States v. Dawson, 425 F.3d 389
(7th Cir. 2005)(Posner, J.). If the parties have
any desire to settle - and of course they cannot be forced to
do so, G. Heileman Brewing Co., Inc. v. Joseph Oat
Corp., 871 F.2d 648, 650 (7th Cir.
1989)(en banc) - they should meet immediately.
end, some discovery may be necessary - although due regard
must be had for the defendant's failure to initiate any
discovery thus far. Accordingly, fact discovery will close by
10/7/16. Expert disclosures by both parties will occur
simultaneously (if they desire to have an expert at all) and
not later than 10/17/16. Expert depositions will occur not later
than 11/10/16. Dispositive motions will be due 30 days after
the close of expert discovery on 12/9/16. Any response brief
must be filed not later than 12/16/16 and any reply brief
must be filed by 12/23/16.
parties should keep in mind their respective obligations to
each other and to the court to cooperate with opposing
counsel as a colleague in the preparation of a case for
trial. Pioneer Drive, LLC v. Nissan Diesel America,
Inc., 262 F.R.D. 552, 554 (D.Mont. 2009). And they
should remember that the sporting theory of justice was long
ago replaced by the Federal Rules of Civil Procedure, which
regards secrecy as uncongenial to truth seeking and trial by
ambush as destructive of the overarching goal that cases be
justly determined on their merits. See Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512 (2002); Lancelot
Investors Fund, L.P. v. TSM Holdings, Ltd., 2008 WL
1883435, 3-4 (N.D.Ill. 2008). Hence, counsel in this case
must cooperate fully with each other in scheduling and taking
depositions and responding to proper discovery.
Extended and improper discovery requests made at this late
date will not be tolerated.
 In fact, Paragraph 1 of the Motion
states that the court “circulated a Notification of
Docket Entry setting forth discovery deadlines in this
matter.” The docket entry [Dkt. #29] expressly provided
that the court was adopting the discovery schedule to which