THE SCRIVENER To “Sur” With Love By Scott Moïse

What is it about lawyers that opposition to a motion, usu. in What are the courts’ rules makes them want to have the last answer to a surresponse.” Surreply, concerning surresponses and word, always? To curb this habit in id.; see also @BryanAGarner, TWIT- surreplies? litigation writing, many courts have TER (May 5, 2017, 8:44 AM). https:// No South Carolina state or placed limits on the documents twitter.com/bryanagarner/status/8 federal court specifically allows they will accept and the number 60520702755123200?lang=en. or disallows surreplies or surre- of words in those documents. The Combining these definitions, sponses. courts did not count on surre- the chronology of filed motions is sponses and surreplies, though. as follows: (a) State trial courts As much as lawyers love to keep • Motion and Supporting Memo- In state court, the South Caro- on filing briefs to infinity, courts randum (movant) lina Rules of Civil Procedure allow seriously dislike the practice. As • Response to the motion (oppos- motions under Rule 7(b), but do one federal district court stated ing party) not require—or even mention—a when faced with a sur-sur-surre- • Reply to the response (movant) supporting memorandum or any ply: “Eventually we reach a point • Surresponse to the reply (op- responses, much less anything where all this metapleading must posing party) beyond that. stop, and this is that point.” United • Surreply to the surresponse States ex rel. Hockett v. Columbia/HCA (movant). (b) State appellate courts Healthcare Corp., 498 F. Supp. 2d 25, For state appellate courts, the 36 (D.D.C. 2007). Therefore, technically, a sur- South Carolina Appellate Court However, with many courts reply is filed only by the movant, Rules allow motions, returns to deciding motions on the briefs, after the opposition files a surre- motions, and replies. See S.C. App. sometimes a surresponse or sur- sponse. See, e.g., Lunn v. Flower, Ct. R. 240 (d), (e), (f). The rules also reply is needed to complete the No. 1:15-CV-04454-JMC, 2016 WL require a Brief of Appellant, Brief record. See, e.g., Ennin v. CHN Indus. 5073928, at *1 (D.S.C. Sept. 20, of Respondent, and the Appellant’s Am., LLC, 878 F.3d 590 (7th Cir. 2016) (addressing the plaintiff’s Reply Brief. See id. at R. 208(a). 2017) (holding that failure to file a surresponse and the defendant’s Surresponses and surreplies surreply brief waived any challeng- surreply); Washington v. Folin, No. are not mentioned in the appel - es on appeal to the admissibility of 4:14-CV-00416-RBH-KDW, 2015 late rules. evidence) (note that the Seventh WL 1298509, at *4 (D.S.C. Mar. 23, Circuit rules specifically allow sur- 2015) (referencing the defendant’s (c) Federal district courts replies). The trick is thinking ahead second opposing document as a The South Carolina federal to avoid the need for additional surresponse). As someone who district court’s local rules require responses and knowing the proper has previously called every brief supporting memoranda to be filed scope and procedure for submit- filed after the movant’s reply a with virtually all motions. See Local ting them when needed. “surreply,” I believe that the term Civ. Rule 7.04 (D.S.C.). The court is sometimes used in the same also allows opponents to file re- What are surresponses and way “Coke” is used generically to sponses (Rule 7.06) and reluctantly surreplies? describe every soft drink wheth- allows movants to file replies (Rule “Surresponse” (no hyphen) is er it is a Pepsi, Mountain Dew, or 7.07: “Replies to Responses are defined as “a second response by any other soft drink on the mar- discouraged.”). The local rules do someone who opposes a motion.” ket. And I am in good company not contemplate any filings beyond Surresponse, Black’s Law Dictionary because many courts across the that. However, an individual court’s (10th ed. 2014). “Surreply” is defined country label all responses and scheduling order may allow surre- as “a movant’s second supplemen- replies after the first reply as sponses and surreplies, and courts tal response to another party’s “surreplies.” may allow them otherwise. See,

52 SC Lawyer e.g., Palmer v. Santanna, No. 2:16-cv- If South Carolina courts do not July 16, 2018) (upholding a district 03350-PMD-MGB, 2018 WL 3120648, specifically allow or disallow court’s decision to strike a surre- at *1 (D.S.C. Jan. 30, 2018); Mitchell surresponses and surreplies, may ply that was filed without leave of v. Conseco Life Ins. Co., No. CA 8:12- a litigant file one anyway? court); Stanfield v. Charleston Cty. Ct., 548-TMC, 2013 WL 2407129, at *3 Because the rules do not spe- No. 2:15-CV-0756-PMD-MGB, 2015 (D.S.C. June 3, 2013); see also F.D.I.C. cifically allow any responses past a WL 4929186, at *4 n.2 (D.S.C. Aug. v. Cashion, 720 F.3d 169, 175–76 (4th response and reply, parties should 18, 2015) (holding that surreply Cir. 2013) (stating that the court’s first ask the court for permission was not properly before the court briefing schedule had not allowed to file any supplemental docu- since it was filed without leave surreplies). ments. See, e.g., Perez v. S.C. Dep’t of of court); Sierra v. LaManna, No. Labor, Licensing & Regulation, No. CV C/A 0:08-3222-CMC-PJG, 2009 WL (d) Fourth Circuit Court of Appeals 3:17-3187-JFA, 2018 WL 2455093, at 1884492, at *3 (D.S.C. June 30, 2009) The Federal Rules of Appellate *4 (D.S.C. June 1, 2018) (“[I]f a party (refusing to accept a surreply filed Procedure require the appellant’s asks the court for permission, the without the court’s permission). Cf. brief, the appellee’s brief, and an court may allow a party to file an Cunningham v. Anderson Cty., 402 S.C. appellant’s reply brief. See Fed. R. additional response or “sur-reply.”); 434, 447 n.17, 741 S.E.2d 545, 552 App. P. 27(d). Mitchell v. Conseco Life Ins. Co., No. CA n.17 (Ct. App. 2013) (mentioning, in For motions, a party need not 8:12-548-TMC, 2013 WL 2407129, dicta, that the court had not al- file a response unless the court at *3 (D.S.C. June 3, 2013) (“With the lowed a “surreply Brief of Amicus”). asks for one (Fourth Circuit Local court’s permission, Conseco also Courts have discretion wheth- R. 27(d)(1)). The court will not wait filed a sur-reply opposing the mo- er to accept surresponses or sur- for a reply, so if a movant intends tion to certify class.”). replies, and appellate courts will to file a reply, she must immediate- Courts, however, may strike overturn a trial court’s decision ly notify the clerk in writing and any supplemental filings beyond only upon a finding of an abuse request that the court not act on those allowed under the rules. This of discretion. See Cashion, 720 F.3d the motion (id. at Fourth Cir. Local is especially true when parties do at 176 (finding no abuse of discre- R. 27(d)(2)). However, no party may not ask for permission before filing. tion for striking a surreply be- file a separate brief supporting or See Z.G. ex rel. C.G. v. Pamlico Cty. cause surreplies were generally responding to a motion. See Fed. R. Pub. Sch. Bd. of Educ., No. 17-1290, not permitted under the local App. P. 27(a)(C)(i). 2018 WL 3428696, at *1 (4th Cir. rules of the Western District of

September 2018 53 North Carolina, and the parties’ e.g., McNeil v. Sherman, No. CIV.A. What is the proper scope of a briefing schedule did not authorize 209CV00979PMD, 2009 WL 3255240, surresponse or surreply? filing one). at *2 (D.S.C. Oct. 7, 2009); McWhite v. Surresponses and surreplies Ace Am. Ins. Co., No. 4:07-CV-01551- should respond only to new legal What is the timing for asking the RBH, 2008 WL 11349982, at *2 (D.S.C. theories or evidence that were court’s permission to file surre- Oct. 1, 2008. However, such cases raised for the first time in the sponses and surreplies? appear to be in the minority, sug- brief filed immediately before the Since they are not expected, gesting Local Rule 7.07 should be surreply or surresponse. If the lawyers should request permission your benchmark. reply does not raise new argu- to file surresponses and surreplies Also, the better idea is to notify ments and the surreply is merely as soon as possible. One district the court immediately that you responsive to prior issues, it may court applied Local Rule 7.07— intend to file a surresponse or sur- be denied. See, e.g., Cashion, 720 which currently requires reply reply—even before you take F.3d at 176 (“That [the defendant] briefs to be filed within seven days the time to draft it. This may failed to anticipate how the [plain- after a response—and held that a avoid wasted work for both you tiff] would respond to his reliance motion to file a surreply brief was and the court: on the [evidence presented] does untimely. Sierra, 2009 WL 1884492, not automatically entitle him to at *3. [Plaintiff’s] motion for leave to file a surreply.”);see also 2018 WL For the most part, South Caro- file a surreply is neither well 3428696, at *1 n.3 (affirming district lina federal courts seem to follow received nor well founded. It court’s striking a surresponse); the seven-day requirement under is not well received because Flood v. Univ. of Maryland Med. Sys. Local Rule 7.07. See, e.g., Carroll [Plaintiff] failed to promptly Corp., No. CIV.A. GLR-12-2100, 2014 v. Eaton Corp. Long Term Disability alert the court to her desire to WL 7363237, at *4 (D. Md. Dec. 23, Plan, No. 8:16-2608-HMH, 2017 WL file a surreply. The court rou- 2014) (“[Plaintiff] has made no 5635450, at *1 (D.S.C. June 19, 2017) tinely considers briefing closed argument or showing that the in- (allowing surreply filed six days upon receipt of a reply unless formation contained in her [surre- after reply); Levy v. Lexington Cty., immediately notified that the sponse] regarding the aforemen- S.C., No. 3:03–3093–MBS, 2012 WL opposing party desires to file tioned evidentiary challenges was 6675051, at *2 (D.S.C. Dec. 20, 2012) a surreply. See Local Civil Rule not available to her at the time she (allowing surreply filed seven days 7.04–7.07 (addressing briefing originally responded to UMMS’s after reply); Phillips v. DolgenCorp of motions). Consequently, the Motion for Summary Judgment. For LLC, No. 5:10–1016–MBS–JRM, 2011 court endeavors to begin work these reasons, the Court concludes WL 2214754, at *1 (D.S.C. June 7, on motions as soon as the reply that Flood’s proposed surreply is 2011) (allowing surreply filed seven is received. In the present case, unwarranted.”); Douse, 2009 WL days after reply); Curtis v. Norfolk S. the court had substantially 10678302, at *6 (finding that a Ry. Co., No. 1:05–115–MBS, 2010 WL completed work on the present plaintiff’s proposed surreply was 2662269, at *2 (D.S.C. June 21, 2010) motion, including drafting an not well founded because it did (allowing surreply filed four days order, prior to receipt of a sur- not respond to any new arguments after reply). reply. Douse’s delay in filing the in the defendant’s reply brief, but However this requirement has surreply has, therefore, resulted instead raised new arguments that not been strictly enforced in cases in a waste of judicial resources could have been raised in plain- involving pro se parties. In Ridley v. because the court had to re- tiff’s initial response). McGill, No. CV 1:15-1612-MBS, 2017 consider the motion anew and WL 713915, at *2 (D.S.C. Feb. 23, redraft the order although the Why can’t I have the last word? 2017), Judge Margaret B. Seymour decision, ultimately, remained Because the courts hate it. Try denied the defendants’ motion to the same. not to be the person who tries to strike or quash a pro se plaintiff’s break the world record for the brief surreply even though the surre- Douse v. Colonial Life & Accident Ins. with longest train of sur-sur-sur ply was filed eight days after the Co., No. CV 3:08-1671-CMC, 2009 replies. Be the person who antici- plaintiff’s reply had been filed.See WL 10678302, at *5–6 (D.S.C. Feb. 3, pates the arguments and address- also Kyles v. Chartier, No. 6:12-CV- 2009). I cannot say it enough: when es them in a motion, response, 03421-JMC, 2014 WL 994608, at *6 the judge is unhappy, everyone is or reply. When surresponses and (D.S.C. Mar. 13, 2014) (allowing two unhappy. Knowing that an unex- surreplies are necessary, ask the separate surreplies by pro se plain- pected surresponse or surreply is court for permission and keep your tiff filed 18 and then 32 days after likely to cause trouble for the court, response within the scope of new defendant’s replies). be quick in alerting the court that material that has been raised in the Additionally, surreplies have a motion for permission is on the immediately prior brief. Remember, been allowed more than seven way and file the motion just as when the court is happy, everybody days after a reply in a few cases soon as possible. is happy. not involving pro se parties. See,

54 SC Lawyer