Opinion
Civil Action No. 3:03-CV-2909-D.
May 11, 2005
ORDER
Defendants have filed a March 11, 2005 motion for leave to file supplemental appendix in support of their motion for summary judgment filed January 14, 2005. Plaintiff Joyce A. Leggette ("Leggette") opposes the motion and, alternatively, moves for leave to file a surreply. The court grants both motions to the extent set out below.
In support of their motion for summary judgment, defendants filed on March 7, 2005 a reply brief accompanied by an appendix. Because the appendix was filed without leave, the court by March 11, 2005 order stated that it would not consider the appendix in deciding defendants' summary judgment motion. See Dethrow v. Parkland Health Hosp. Sys., 204 F.R.D. 102, 104 (N.D. Tex. 2001) (Fitzwater, J.) (holding that party may not file summary judgment reply appendix without first obtaining leave of court). That same day, defendants filed their motion for leave to file the appendix (their proposed order makes clear that they seek leave to file the appendix filed March 7, 2005).
The court concludes that the appropriate course in this case is the one suggested in Springs Industries, Inc. v. American Motorists Insurance Co., 137 F.R.D. 238 (N.D. Tex. 1991). Because no palpable injustice will result from considering the evidence in question, see id. at 240, the court will consider defendants' March 7, 2005 supplementary appendix, will permit Leggette to file a surreply brief and a surreply appendix within 15 days of the date this order is filed, and will permit defendants to file a final reply brief, but not an additional appendix, within 15 days of the date Leggette's surreply is filed. The surreply brief and final reply brief are subject to the page limits for a reply brief. Defendants' motion for summary judgment will be taken under advisement after the final reply brief is filed or the time to file it has elapsed.
SO ORDERED.