Case Information
*1
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION
| In re | | Case No. 06-20046-A-11 | | :--: | :--: | :--: | | 13 | LARGE SCALE BIOLOGY | | Docket Control No. FWP-43 | | 14 | CORPORATION, et al., | | and FWP-44 | | 15 | Consolidated Debtor. | | Date: October 1, 2007 | | 16 | | Time: 9:00 a.m. | |
MEMORANDUM
Large Scale Biology Corporation, a reorganized chapter 11 debtor, has filed two motions seeking, among other things, to sell and assign certain patents and patent applications. On August 21, The Dow Chemical Company and Dow Agrosciences, LLC (collectively, "Dow"), filed opposition to these motions. The debtor filed a reply to its opposition on September 5.
The hearing on the first motion (FWP-43), was initially scheduled for August 20, but the hearing was continued to September 4. The hearing on the second motion (FWP-44) was initially calendared for September 4. On September 4, both hearings were continued to September 25, then continued again to
*2 October 1. The continuances were to accommodate the parties and their attorneys.
Now, Dow wants the court to entertain its motion to file a sur-reply to the debtor's reply to its opposition before the October 1 hearing. The ostensible basis for this request is that the debtor's reply raises arguments "for the first time" concerning Dow's opposition to the motions. The debtor, for instance, asserts that some of Dow's opposition has been raised in "bad faith."
Not only will the court not schedule a hearing on Dow's request to file a sur-reply, it will deny that request.
First, the rules of this court, indeed, the law and motion rules of most courts, permit the moving party, not the respondent, to have the last word. See Fed. R. Bankr. P. 90141 (f) (1). When a motion is filed, any respondent may file opposition to it and the movant may file a reply to that opposition. The respondent may not file a sur-reply.
Second, while the court may, in its discretion, permit additional briefing, including a sur-reply, it generally will not permit such additional briefing absent good cause.
The cause offered here is that the debtor's reply to Dow's opposition raises issues "for the first time."
Of course the debtor's reply raises issues for the first time. The purpose of a movant's reply is to respond to an opposition. A reply necessarily raises facts and issues, for the first time, that are germane to the opposition. If the evidence and argument included with a motion were required to anticipate the arguments a respondent might raise in opposition to the
*3 motion, the court would not permit the movant to file a reply to any opposition.
This is not a case where the motion failed to address a necessary prerequisite to the relief requested by the movant and, after a respondent noted the deficiency, the movant added the necessary evidence in its reply. This is sandbagging. If permitted, it robs a respondent of its ability to respond intelligently to the relief requested by the movant.
Dow has not been sandbagged. The debtor's reply responds to defensive issues put in play by Dow's opposition. The debtor's reply also maintains, among other things, that Dow's opposition has not been raised in good faith. Because such an argument could not be raised until the Dow's opposition was filed, it is no surprise that it is raised in the debtor's reply rather than the motion.
The debtor's motion was set for hearing on shortened notice. In situations where the parties must respond to a motion over a shorter time period than is the norm, the court is more than amenable to departing from the customary briefing rules. However, as noted above, the court already has continued the hearing on the debtor's motions several times and it has permitted Dow to file opposition after the time specified in the initial order setting a hearing on August 20. The deadline for opposition was extended to permit the parties additional time to negotiate and to file opposition, if any. Dow ultimately filed its opposition on August 21, 21 days after the filing of the first motion.
Finally, the timing of the request to file a sur-reply is
*4 | 1 | troubling. The debtor's reply was filed and served on September | | :--: | :--: | | 2 | 5. Yet, Dow waited until September 20 to file its motion for | | 3 | leave to file a sur-reply. If Dow is permitted to file a sur- | | 4 | reply on September 25 as it requests, the debtor would be left | | 5 | with just three business days to deal with any issues it raises. | | 6 | A separate order will be entered. | | 7 | Dated: 15 Sept 2007 | | 8 | | | 9 | By the Court | | 10 | | | 11 | Michael S. McManus, Chief Judge | | 12 | United States Bankruptcy Court | | 13 | | | 14 | | | 15 | | | 16 | | | 17 | | | 18 | | | 19 | | | 20 | | | 21 | | | 22 | | | 23 | | | 24 | | | 25 | | | 26 | | | 27 | | | 28 | |
*5
CERTIFICATE OF MAILING
I, Susan C. Cox, in the performance of my duties as a judicial assistant to the Honorable Michael S. McManus, mailed by ordinary mail to each of the parties named below a true copy of the attached document.
Gerald Sweeney 460 Bloomfield Ave #200 Montclair, NJ 07042 Marc Levinson 400 Capitol Mall #3000 Sacramento, CA 95814-4407 Martin Weis Dilworth Paxson 457 Haddonfield Rd, #700 Cherry Hill, NJ 08002 Paul Pascuzzi 400 Capitol Mall #1450 Sacramento, CA 95814-4434 Large Scale Biology Corporation 3333 Vaca Valley Pkwy #1000 Vacaville, CA 95688 Office of the U.S. Trustee Robert T Matsui United States Courthouse 501 I Street, Room 7-500 Sacramento, CA 95814 Dated: September 25, 2007