UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TERRY REEDY, 

Plaintiff,

Case No. 15-11401

vs.

HON. GEORGE CARAM STEEH

RICH TRANSPORT, LLC, et al,

Defendants.

________________________________/

ORDER GRANTING PLAINTIFF’S MOTION

FOR LEAVE TO FILE SUR-REPLY (DOC. 18)

This matter came before the court on Plaintiff’s motion for leave to file a sur-reply

to Defendants’ motion for partial summary judgment. On December 2, 2015,

Defendants filed a motion for partial summary judgment as to two claims brought by

Plaintiff. Plaintiff filed a response to that motion on January 4, 2016. Defendants then

filed a reply on January 25, 2016. On January 27, 2016 Plaintiff filed the motion for

leave to file a sur-reply, which is before the court now.

Plaintiff argues that Defendants raised new arguments in their reply brief that

should be dismissed. Specifically, Plaintiff argues that Defendants’ reply brief included

new arguments as to both Plaintiff’s marital discrimination claim and Plaintiff’s WDCA

retaliation claim. This court finds that Defendants did not raise new arguments;

however, in order to ensure a complete record, the court will allow plaintiff to file a surreply as to the arguments.

Legal Standard

The decision whether or not to grant a sur-reply is within the court’s discretion.

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Mirando v. U.S. Dep’t of Treasury, 766 F.3d 540, 549 (6th Cir. 2014). The court may, in

its discretion, grant a sur-reply “for the benefit of a more fully developed record.”

Findling v. Int’l Transmission Co., 2006 WL 1663296 (E.D. Mich. June 15, 2006). See

also United States v. Gordon, 2012 WL 3134344 (E.D. Mich. Aug. 1, 2012) (recognizing

that sur-replies may be granted to “ensure a complete record”).

A. Marital Discrimination Claim:

Plaintiff points to three allegedly new arguments regarding Plaintiff’s marital

discrimination claim raised by Defendants in their reply: 1) Plaintiff cannot establish the

first element of his prima facie case, that plaintiff is part of a protected class, 2)

Plaintiff’s claim fails because it is allegedly premised on a “perceived” characteristic, and

3) Plaintiff allegedly cannot establish pretext under the McDonnell Douglas framework. 

As to the first argument, the court finds that this is in fact not a new argument.

Defendants cite to language in their motion for partial summary judgment that the Court

agrees is dispositive on this matter. Specifically, Defendants’ motion reads: “Plaintiff

cannot meet the first element of prima facie claim of marital status, which is that he is a

member of a protected class.” (Doc. 11, Pg ID 308). Plaintiff argues that this should be

disregarded because the next sentence in Defendant’s motion reads: “Although

technically every person in the state of Michigan falls under the ‘protected class’ for

marital status discrimination purposes . . . .” (Id.). However, this is not a concession

from Defendants that the first element is satisfied. It merely implies that discrimination

based on marital status can affect both single and married individuals. With that in mind,

context, coupled with the above cited passage, makes it clear that Defendants have

already raised this argument, and it should not be waived. The court, does, however,

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recognize Plaintiff’s confusion, and the court concludes that a sur-reply would be useful

to more fully develop the record. Plaintiff’s motion to file a sur-reply as to this argument

is GRANTED.

As to the second argument regarding marital discrimination, the court agrees with

Defendants that this is not a new argument. Plaintiff’s response to Defendants’ motion

relies on testimony from Plaintiff’s co-workers, Mr. Arce and Ms. Chandler, to insinuate

that, even if he was not technically divorced, his co-workers understood him to be a

single parent. (Doc. 13, Pg ID 327). This was not an argument previously advanced by

Plaintiff. So, Defendants were justified in replying to these responses from Plaintiff. This

is not a new argument. However, the court again recognizes the value of providing a

complete record, and Plaintiff’s motion to file a sur-reply as to this argument is,

therefore, GRANTED.

Finally, the court agrees with Defendants that the third argument regarding

marital discrimination is not in fact a new argument. Plaintiff claims that because

Defendants did not discuss pretext under the McDonnell Douglas framework, the

Defendants are precluded from discussing it now. In their motion for partial summary

judgment, it would be unreasonable to require Defendants to include a discussion of

pretext when Plaintiffs had not yet raised that argument. This is not a new argument

asserted by Defendants; it is an appropriate reply to Plaintiff’s response. Plaintiff, in his

response to Defendants’ motion for partial summary judgment, already argued that

pretext can be established. (Doc. 13, Pg ID 28-29). However, if Plaintiff wishes to

provide additional argument within the narrow page limit set forth by the court for a surreply, Plaintiff may do so. Plaintiff’s motion to file a sur-reply as to this argument is

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GRANTED.

B. WDCA Retaliation Claim:

Plaintiff alleges that Defendants’ arguments attacking the WDCA retaliation claim

were first raised in Defendants’ reply and constitute new arguments that should,

therefore, be deemed waived. Defendants, in their motion for partial summary judgment,

put forth a one-sentence argument discussing Plaintiff’s WDCA retaliation claim:

“Plaintiff’s retaliatory discharge claim must fail because he cannot offer a shred of

evidence to establish retaliation.” (Doc. 10, Pg ID 100). Then, in reply to Plaintiff’s

response, Defendants asserted several specific arguments, which Plaintiff claims are

new. Defendants, on the other hand, argue that before Plaintiff’s response, it was “very

unclear to Defendants the basis for this claim.” (Doc. 16, Pg ID 545). In addition

Defendants insist that these arguments are not new; rather they are “one in the same”

with the original one-sentence argument. (Id.). The court finds these not to be new

arguments; however, in the interest of providing a complete record, Plaintiff’s motion to

file a sur-reply as to this argument is GRANTED.

IT IS ORDERED that Plaintiffs may file a sur-reply as to Defendants’ arguments

addressed herein. Plaintiff should limit his sur-reply to 7 pages due on or before April

27, 2016.

Dated: April 20, 2016

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

April 20, 2016, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

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