United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART
DEFENDANTS' MOTION TO STRIKE REPLY
MATTER is before the Court upon Defendants' Motion to
Strike Plaintiff's Reply Memorandum In Support of
Plaintiff's Motion for Class Certification, filed January
26, 2018 (Doc. 117). Having reviewed the
parties' briefs and the applicable law, the Court finds
that Defendants' motion is well-taken and, therefore, is
GRANTED IN PART.
a putative class action for relief under the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C.
§227. Plaintiff alleges that Defendant First Community
Bancshares, Inc., and its subsidiary Defendant First National
Bank Texas (“Defendants”) violated the TCPA by
placing automated telephone calls to her cellular telephone
for nonemergency purposes using an “automatic telephone
dialing system” (“ATDS”) as defined by the
TCPA, 47 U.S.C. § 227(a)(1).
filed a Motion to Certify Class on March 17, 2017
(Doc. 74). The response was delayed for
additional discovery, and was filed eight months later on
November 7, 2017. Plaintiff's reply in support of the
motion to certify class was filed on January 8, 2018. Two
motions to strike were also filed. This Motion was fully
briefed on February 27, 2018, and is now ready for ruling.
Motion, Defendant requests the Court either (1) strike
Plaintiff's reply in support of the motion to certify, or
(2) alternatively reopen discovery and allow Defendants to
file a surreply.
argue that Plaintiff's reply (1) goes over the page limit
set in the local rules, (2) includes a new proposed class
definition in the reply, and (3) includes new evidence.
request that the Court strike Plaintiff's reply, because
it exceeds the page limit set forth in the local rules.
Plaintiff requests leave to exceed the local rule's page
limit. D.N.M.LR.-Civ 7.5 specifies that a reply brief must
not exceed twelve pages. Here, Plaintiff filed a sixteen page
reply brief. Defendants do not assert any prejudice by the
extra pages, rather, they assert they are prejudiced because
Plaintiff included new arguments and new evidence in the
reply. In its discretion, the Court declines to strike
Plaintiff's reply. As explained below, any prejudice will
be alleviated by allowing Defendants to file a surreply.
New Arguments or Evidence.
also argue that discovery should be reopened and they should
be allowed to file a surreply, because Plaintiff included new
evidence and arguments in her reply.
Defendants request to reopen discovery, because Plaintiff
modified the proposed class definition to only include
individuals called “on their cellular phones.”
The Court concludes that Defendants have not shown cause to
reopen discovery. Defendants have not identified any
discovery that was not foreseeable during the original
discovery period in this case. Moreover, this change to the
class definition does not expand or change the proposed
class. Both parties operated under the assumption that the
class definition only included cell phone
users. In the amended complaint, Plaintiff
specified that Defendants violated 47 U.S.C. §
227(b)(1)(A) by calling cellular numbers. See
Doc. 41. Therefore, the Court declines to
reopen discovery. Defendants may renew their request to
reopen discovery if they can make the appropriate showing
that specific discovery is needed, and was not foreseeable.
reply brief presents new legal arguments or evidence, a court
may take either of two courses of action: (a) refrain from
relying on the new arguments or materials in the reply or (b)
permit a surreply. Beaird v. Seagate Technology,
Inc., 145 F.3d 1159, 1164 (10th Cir. 2003). If the
district court does not allow a surreply, then the court can
avoid error only by not relying on the new materials and
arguments in the movant's reply brief. Beaird,
145 F.3d at 1164; Doebele v. Sprint/United Management
Co., 342 F.3d 1117, 1129-31 (10th Cir. 2003); see
also Rowley v. APD Detective Kevin Morant, 2014 WL
12656606, at *2 (D.N.M. 2014). The Court concludes that
Defendants should have the opportunity to file a surreply,
because Plaintiff included new arguments and evidence in her
reply. Although it is unclear whether the addition to the
proposed class definition changes anything, Defendants should
have the opportunity to respond. Moreover, Plaintiff attached
excerpts from three depositions to her reply. Defendants
argue that Plaintiff mischaracterized the deposition
testimony in argument, and the Court concludes that
Defendants should be given the opportunity to clarify the
IT IS ORDERED that Defendants' Motion to Strike
Reply (Doc. 117) is hereby GRANTED