United States District Court, D. New Mexico
ORDER DENYING PLAINTIFF'S MOTION TO SUPPLEMENT
HONORABLE JERRY H. RITTER, U.S. MAGISTRATE JUDGE.
case involves a son suing his now deceased parents and their
“financial agents” for allegedly improperly
disposing of his inheritance and well as his own real and
personal property. [Doc. 10]. The case was referred to former
U.S. Magistrate Judge William P. Lynch by presiding U.S.
District Judge Judith C. Herrera. [Doc. 9]. Upon Judge
Lynch's retirement, he was succeeded by the undersigned,
U.S. Magistrate Judge Jerry H. Ritter.
Adda Moldt and David River filed a Motion for Summary
Judgment [Doc. 32 with memorandum Doc. 33]. Plaintiff
Stephen Ullrich filed a response [Doc. 35] followed by Moldt
and River's reply [Doc. 37]. Ullrich then filed a
surreply [Doc. 43] without leave of court. See
D.N.M.LR-Civ. 7.4(b) (“The filing of a surreply
requires leave of the Court.”). On January 11, 2019,
Judge Ritter filed his Magistrate Judge's Proposed
Findings and Recommended Disposition [Doc. 63] for
consideration by Judge Herrera, subject to any objections
that the parties might file under 28 U.S.C. § 636(b)(1).
[Doc. 63, p. 11]. Plaintiff filed a timely objection [Doc.
64] which is now before Judge Herrera for de novo
1, 2018, five days after filing his unauthorized surreply,
Ullrich filed a Motion for Permission to Supplement;
[sic] Plaintiff's Responce [sic] to a Defendant's
Motion for Summary Judgment [Doc. 44');">44], which would be
properly denominated a motion to file a surreply. Defendants
did not file a response. That motion has not been ruled upon,
thus prompting this order.
REGARDING FILING A SURREPLY
Federal Rules of Civil Procedure define the form of civil
motions, Fed.R.Civ.P. 7(b), but do not discuss responses and
replies. The United States District Court of the District of
New Mexico fills the gap with a local rule, D.N.M.LR-Civ.
7.4, Timing of and Restrictions on Responses and
Replies. Specific to surreplies, the local rule states:
“[t]he filing of a surreply requires leave of the
Court.” D.N.M.LR-Civ. 7.4(b). Contrary to his
unauthorized filing a few days earlier, [Doc. 43],
Ullrich's motion [Doc. 44');">44] is a proper method seek leave
of Court to file a surreply.
surreply is not commonly allowed but can be useful and even
necessary when a reply presents new evidence or raises new
arguments. A court should not consider new issues raised for
the first time in a reply brief. See Plottner v. AT&T
Corp., 224 F.3d 1161, 1175 (10th Cir. 2000). Adherence
to this rule has special emphasis in the context of summary
judgment briefing; if a district court accepts a reply brief
in support of a motion for summary judgment containing new
arguments or new materials, the district court has two
permissible courses of action: “It [can] either ...
permit[ ] a surreply or, in granting summary judgment for the
movant, it [can] refrain[ ] from relying on any new material
contained in the reply brief.” Beaird v. Seagate
Tech. Inc., 145 F.3d 1159, 1164 (10th Cir. 1998),
cert. denied, 525 U.S. 1054 (1998); see also
Plant Oil Powered Diesel Fuel Sys., Inc. v. ExxonMobil
Corp., No. CIV 11-0103 JB/WPL, 2012 WL 1132527, at *15
(D.N.M. Mar. 22, 2012) (recognizing that a surreply is
permitted when a party raises new arguments in a reply,
because of the “inequity of a court considering
arguments ... raised for the first time in a reply”)
(internal quotation marks and citation omitted).
NATURE OF DEFENDANT'S REPLY BRIEF
states [Doc. 44');">44, p. 2] that his proposed surreply is directed
primarily at the first full paragraph on page 2 of
Defendants' Reply in Support of their Motion for
Summary Judgment. [Doc. 37]. That paragraph
states in its entirety:
For the reasons set forth in the Defendants' Motion and
Memorandum for Summary Judgment, Plaintiff is precluded from
proceeding in this forum. Plaintiff's Complaint must be
dismissed on legal grounds, specifically based on a lack of
subject matter jurisdiction, collateral estoppel and/or res
judicata and the expiration of the statute of limitation.
Defendants are therefore entitled to judgment in their favor
as a matter of law.
succeeding paragraphs of their reply, Defendants address
particulars of Ullrich's response and argue that he
failed to demonstrate a genuine issue of material fact [Doc.
37, pp. 2-3] and that his contractual claim lacks merit,
id., pp. 3-5. Defendants do not attach nor cite to
evidence in their reply that was not part of the previous
record. Their first argument, regarding lack of a genuine
factual issue, is merely a critique of the sufficiency of
second argument in their reply has four subparts: first, that
Ullrich failed to present any evidence of a contract that
would impose upon Defendants any obligation to Ullrich
(comparing documents relied upon already by Ullrich); second,
that an examination of a letter attached to Ullrich's
response shows that the limitations period for contract
claims already expired; third, that the statute of
limitations for a claim for conversion has expired (relying
upon Ullrich's 2011 state petition for a probate writ
which was an exhibit to the original motion for summary
judgment [Doc. 33, Exh. B], and; fourth, that Ullrich's
concession that “this is not a probate case”
[Doc. 37, p. 5; see also Doc. 35, p. 8] requires
Ullrich to state claims against the Defendants individually
and not in any probate capacity.
NATURE OF THE PROPOSED SURREPLY
proposes by surreply to address Defendants' argument