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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MAXIE MCNABB, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06cv664-MHT

)

SANDERS LEAD COMPANY, INC., )

)

Defendant. )

DEFENDANT’S RESPONSE TO PLAINTIFF’S FIRST MOTION TO STRIKE AND

ALTERNATIVE MOTION TO ALLOW A SUR-REPLY

COMES NOW, Defendant Sanders Lead Company, Inc., by and through the

undersigned counsel of record, and does hereby respond to Plaintiff’s First Motion to Strike

and Alternative Motion to Allow a Sur-reply. In response thereto, Defendant states the

following:

1. In Defendant’s Motion for Summary Judgment, arguments were made

regarding the inability for Plaintiff to establish prima facie cases regarding his

claims.

2. Plaintiff filed his response to said Motion on July 2, 2007, 38 days after the

Defendant filed its Motion for Summary Judgment and after receiving an

extension to do so in order for the Plaintiff to complete discovery. During that

38 days, the Defendant took the Deposition of the Plaintiff, while the Plaintiff

did not to take the depositions of anyone or send any further discovery

requests or interrogatories. Plaintiff further supplemented his motion another

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21 days after his filing with other evidence allegedly supporting his claims.

3. In response thereto, the Defendant replied to Plaintiff’s responses and as

evidence supporting the reply, attached the affidavits of Sam Kitchens and

Leon Bennett, as well as other documents either brought up in the Plaintiff’s

deposition or in Plaintiff’s response to Defendant’s Motion for Summary

Judgment or his Supplemental Response.

4. The Plaintiff has now filed a Motion seeking to either dismiss the Defendant’s

reply for it not being contemplated by the Court’s scheduling order or for

raising new arguments. In the alternative, the Plaintiff asks the Court to

allow depositions of the two individuals who submitted affidavits in the

Defendant’s Reply Brief and also file a Sur-Reply Brief. 

5. First and foremost, a reply brief is a common, typical, and normally expected

part of the summary judgment process and should not have to be

contemplated by the Court in its scheduling order. Further, the reply was

filed in a timely manner as it was filed more than ninety (90) days prior to the

case being set for trial. Therefore, Plaintiff’s arguments regarding the

unexpectedness or untimeliness of a reply brief should be disregarded

and/or denied.

6. Additionally, the only new arguments presented were to directly rebut what

the Plaintiff stated in his response. The arguments evidence submitted by

the Plaintiff in his Response to the Defendant’s Motion were simply replied

to and rebutted by the Defendant, which is the sole purpose of a reply brief.

7. As evidence in support of Plaintiff’s position in his response to the

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Defendant’s Motion for Summary Judgment, the Plaintiff submitted a

document alleging that it stated that he was eligible to be re-hired. The

Defendant replied and pointed out to the Court that Plaintiff’s evidence

stated that he was not eligible to be re-hired at the same position.

8. The Defendant also used an affidavit of Leon Bennett, a supervisor and the

first person identified in Defendant’s Rule 26 Initial Disclosures and

subsequently identified by adoption in the Plaintiff’s Initial Disclosures, to

explain why the Plaintiff was not eligible to be rehired. 

9. The Defendant also used an affidavit of Sam Kitchens, the personnel

manager of the Defendant and a person identified in Defendant’s Rule 26

Initial Disclosures and identified by name in the Plaintiff’s Initial Disclosures,

to explain why the hiring process of certain individuals identified in the

Plaintiff’s supplemental evidentiary filing on July 23, 2007. Sam Kitchens

submitted an affidavit in support of the Defendant’s Motion for Summary

Judgment filed on May 25, 2007. Any affidavit of his could not be

considered new evidence, as his affidavit was submitted in the original filing.

10. As both Sam Kitchens and Leon Bennett were identified in both parties’ initial

disclosures, the Plaintiff can hardly claim surprise or new evidence when

their affidavits were used. The Plaintiff had ample opportunity to depose

either individual, yet chose not to do so. 

11. Other evidence used by the Defendant in its reply brief included the

deposition of the Plaintiff, which was not available at the time of filing the

Motion for Summary Judgment, documents from the EEOC that contradicted

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or supported the Plaintiff’s Deposition, and the Change of Employee Status

form used by the Plaintiff in his response. 

12. Plaintiff’s statements regarding the Defendant submitting new evidence or

new arguments are due to be denied.

13. The purpose of Plaintiff’s motion seems to be an effort to once again extend

the Discovery process as he asks the Court as one of his prayers for relief

to allow for the depositions of Leon Bennett and Sam Kitchens.

14. In mid-April of 2007, Plaintiff’s counsel contacted Defendant’s counsel

regarding dates to depose potential witnesses.

15. Defendant’s counsel responded with dates in early to mid-May, yet no

notices were sent by the Plaintiff or his counsel and nothing else was said

about depositions until Plaintiff filed for a Motion to Extend the Time to

Complete Discovery and also to extend the time period to respond to

Defendant’s Motion for Summary Judgment. 

16. Even after the Motion to Extend the time to Respond was granted, Plaintiff

failed to schedule and take the depositions of anyone, even after the

Defendant scheduled and took the deposition of the Plaintiff.

17. The Plaintiff has had ample opportunity to depose any and all individuals

identified in the initial disclosures and who submitted affidavits to support the

Defendant’s claims, so any request to depose now, well over sixty (60) days

after the close of discovery, should be denied.

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WHEREFORE, for the above stated reasons, the Defendant respectfully requests

that this Court deny Plaintiff’s Motion to Strike and Alternative Motion to Allow a Sur-Reply.

Respectfully submitted this the 14th day of September, 2007.

s/ N.J. Cervera 

N.J. Cervera (CER001)

s/ Frank P. Ralph 

Frank P. Ralph (RAL002)

s/ Grady A. Reeves 

Grady A. Reeves (REE042)

s/ Matthew M. Baker 

Matthew M. Baker (BAK017)

OF COUNSEL:

CERVERA, RALPH, & REEVES, LLC

914 South Brundidge Street

P.O. Box 325

Troy, Alabama 36081

phone (334) 566-0116

fax (334) 566-4073

CERTIFICATE OF SERVICE

I hereby certify that I have this date electronically filed the foregoing with the Clerk

of Court using the CM/ECF system and served a copy of same by CM/ECF on this the 14th

day of September, 2007:

Roderick T. Cooks, Esq.

WINSTON COOKS, LLC

The Penick Building

319 17th Street North

Birmingham, Alabama 35203

s/ N.J. Cervera 

OF COUNSEL

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