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Ullrich v. Ullrich

United States District Court, D. New Mexico

March 21, 2019




         This 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.

         Defendants 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 review.

         On May 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.


         The 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.

         A 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).


         Ullrich 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.

         In 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 Ullrich's response.

         Defendant's 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.


         Ullrich proposes by surreply to address Defendants' argument about ...

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