First Technology Capital, Inc. v. BancTec, Inc.
5:16-cv-00138
E.D. Ky.Jun 26, 2017Background
- FTC moved for leave to file a surreply responding to BancTec’s reply in support of its motion for summary judgment.
- BancTec did not oppose FTC’s surreply so long as it could file a further response (a “sur‑surreply”); FTC opposed that additional filing.
- The dispute turned on whether BancTec raised new arguments in its reply brief that FTC could not address without leave to file a surreply.
- The Court reviewed the underlying briefing (DE ##72, 80, 90) and the leave briefing (DE ##92, 93, 95, 97).
- The Court found BancTec had introduced a new theory in its reply (about FTC treating the contract as continuing or the breach being non‑material) and that FTC’s proposed surreply was limited to those new arguments.
- The Court granted FTC leave to file the surreply and denied BancTec leave to file a sur‑surreply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to allow FTC to file a surreply to address new arguments in BancTec’s reply | FTC: BancTec raised a new theory in its reply; FTC needs leave to respond | BancTec: did not oppose FTC’s surreply (no substantive dispute) | Court: Granted FTC leave because BancTec introduced new arguments in reply and FTC’s surreply is confined to those issues |
| Whether BancTec may file a sur‑surreply after FTC’s surreply | FTC: opposes further briefing; not warranted | BancTec: requests final word because it bears burden on summary judgment | Court: Denied. BancTec failed to show FTC’s surreply raised new issues warranting another brief and offered no authority justifying a sur‑surreply |
| Whether timing or gamesmanship bars FTC’s surreply | FTC: filed motion for leave promptly (one day) | BancTec: did not assert delay | Court: Prompt filing weighed in favor of granting leave |
| Proper procedural method to seek leave for additional briefing | FTC: sought leave by motion | BancTec: appended proposed sur‑surreply to a response rather than a separate leave motion | Court: noted BancTec’s method was procedurally improper and construed its filing as a motion for leave but denied it |
Key Cases Cited
- Key v. Shelby Cnty., [citation="551 F. App'x 262"] (6th Cir.) (surreply may be allowed when a reply raises new arguments or evidence)
- Seay v. Tenn. Valley Auth., 339 F.3d 454 (6th Cir. 2003) (surreplies permissible to address new material in a reply)
- Mirando v. U.S. Dep’t of Treasury, 766 F.3d 540 (6th Cir. 2014) (district court’s decision to permit a surreply reviewed for abuse of discretion)
- Eng’g & Mfg. Servs., LLC v. Ashton, [citation="387 F. App'x 575"] (6th Cir.) (denial of surreply can be an abuse of discretion when reply presents new arguments/evidence)
- Liberty Legal Found. v. Nat’l Democratic Party of the USA, Inc., 875 F. Supp. 2d 791 (W.D. Tenn. 2012) (surreplies are disfavored)
- Duchardt v. Midland Nat’l Life Ins. Co., 265 F.R.D. 436 (S.D. Iowa 2009) (court has discretion whether to consider a sur‑surreply)