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Best v. Safford

United States District Court, S.D. Indiana, Indianapolis Division

April 16, 2018

LARRY BEST, JR., Plaintiff,
v.
JOHN SAFFORD, JEFFERY KING, BLAINE HURT, WALTER PETERSON, HERBERT DUNCAN, CORIZON HEALTH, INC., and PAUL A. TALBOT M.D., Defendants.

          Bessie M. Davis LAW OFFICE OF BESSIE M. DAVIS, LLC

          Benjamin Myron Lane Jones INDIANA ATTORNEY GENERAL

          Jennifer Elizabeth Lemmon INDIANA ATTORNEY GENERAL

          Kelly Suzanne Thompson INDIANA ATTORNEY GENERAL

          ORDER ON MOTION FOR LEAVE TO FILE LATE EXHIBIT AND MOTION TO STRIKE PLAINTIFF'S SURREPLY

          TANYA WALTON PRATT, JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on Plaintiff Larry Best, Jr.'s (“Best”) Motion for Leave to File Late Exhibit in Opposition to Motion for Partial Summary Judgment (Filing No. 97), and the State Defendants' Motion to Strike Plaintiff's Surreply in Opposition to Motion for Partial Summary Judgment (Filing No. 99). The Court will address each motion in turn.

         A. Best's Motion for Leave to File Late Exhibit

         Best explains that the State Defendants filed their Motion for Partial Summary Judgment on August 22, 2017 (Filing No. 78). Best filed his Memorandum in Opposition to State Defendants' Motion for Partial Summary Judgment (“Response Brief”) on October 20, 2017 (Filing No. 94). Best further explains that his Response Brief included twenty references to his affidavit, which was supposed to be attached as an exhibit. “Due to error in submission of exhibits the same inadvertently was not included with the exhibits attached to his response.” (Filing No. 97 at 1.)

         Best argues that Federal Rule of Civil Procedure 56(e) allows the court to give a party an opportunity to properly support or address a material fact if the party initially fails to properly support an assertion of fact. Best also points out that Local Rule 56-1(1) states, “The court may, in the interest of justice or for good cause, excuse failure to comply strictly with this rule.” Best argues that his affidavit that was inadvertently not filed with his originally-filed designated evidence supports the facts that he alleged in his Response Brief, and thus, the Court should allow him to belatedly file the affidavit to support his Response Brief.

         The State Defendants did not file an opposition to Best's Motion for Leave to File Late Exhibit. Pursuant to the Court's authority under Rule 56(e)(1), the Court GRANTS the Motion for Leave to File Late Exhibit because the missing affidavit supports the facts alleged in Best's Response Brief, and the Response Brief provided citations to the affidavit, which was inadvertently omitted. It is in the interest of justice to allow Best to belatedly file his designated evidence. Therefore, Best's Amended Designation of Evidence (Filing No. 97-1) and Best's Affidavit (Filing No. 97-2) are deemed filed and will be considered when the Court decides the State Defendants' Motion for Partial Summary Judgment.

         B. State Defendants' Motion to Strike Plaintiff's Surreply

         The State Defendants ask the Court to strike Best's Surreply in Opposition to Motion for Partial Summary Judgment, asserting that the Surreply is beyond the scope and purpose of a permissible surreply.

         On August 22, 2017, the State Defendants filed their Motion for Partial Summary Judgment. On October 20, 2017, Best filed his Response Brief to the Motion for Partial Summary Judgment. On October 30, 2017, the State Defendants filed their Reply Brief in support of their motion and did not submit any new evidence. Without leave of the Court, Best filed his Surreply on November 6, 2017, and attached two new exhibits (Filing No. 98). The State Defendants promptly moved to strike the Surreply the following week.

         In their Motion to Strike, the State Defendants assert that Best uses his Surreply to advance new, additional arguments as well as reiterate arguments from his Response Brief. The State Defendants point out that Local Rule 56-1(d) allows a surreply only when “the movant cites new evidence in the reply or objects to the admissibility of the evidence cited in the response.” They argue that Best has not alleged and they did not cite any new evidence or object to the admissibility of Best's evidence ...


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