UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF PENNSYLVANIA

 

Katherine A. Ruth ) 

on behalf of herself and all others ) 

similarly situated ) 

 ) C.A. No. 05-CV-766 

 Plaintiff, ) 

 vs. ) 

 ) 

Experian Information Solutions, Inc. ) 

 ) CLASS ACTION 

 Defendant. ) 

 ) 

ORDER GRANTING MOTION TO STRIKE

 AND NOW, this _____ day of ______________, 2006, upon consideration of Plaintiff’s 

Motion to Strike Defendant Experian Information Solutions, Inc.’s Sur-Reply in Opposition to 

Plaintiff’s Supplemental Motion for Class Certification, and Defendant’s response thereto, if any, 

it is hereby ORDERED that the Motion is granted and Defendant’s Sur-Reply is hereby 

STRICKEN from the record. 

 BY THE COURT: 

 ____________________________ 

 Thomas N. O’Neill, Jr., S.J. 

Case 2:05-cv-00766-TON Document 41 Filed 02/07/06 Page 1 of 8
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF PENNSYLVANIA

 

Katherine A. Ruth ) 

on behalf of herself and all others ) 

similarly situated ) 

 ) C.A. No. 05-CV-766 

 Plaintiff, ) 

 vs. ) 

 ) 

Experian Information Solutions, Inc. ) 

 ) CLASS ACTION 

 Defendant. ) 

 ) 

ORDER GRANTING IN PART MOTION TO STRIKE 

 AND NOW, this _____ day of ______________, 2006, upon consideration of Plaintiff’s 

Motion to Strike Defendant Experian Information Solutions, Inc.’s Sur-Reply in Opposition to 

Plaintiff’s Supplemental Motion for Class Certification, and Defendant’s response thereto, if any, 

it is hereby ORDERED that the Motion is granted in part and Plaintiff may have ten (10) days 

from the entry hereof to file a Memorandum of Law in Reply to Defendant’s Sur-Reply. 

 BY THE COURT: 

 ____________________________ 

 Thomas N. O’Neill, Jr., S.J. 

Case 2:05-cv-00766-TON Document 41 Filed 02/07/06 Page 2 of 8
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

 

Katherine A. Ruth ) 

on behalf of herself and all others ) 

similarly situated ) 

 ) C.A. No. 05-CV-766 

 Plaintiff, ) 

 vs. ) 

 ) 

Experian Information Solutions, Inc. ) 

 ) CLASS ACTION 

 Defendant. ) 

 ) 

PLAINTIFF’S MOTION TO STRIKE DEFENDANT EXPERIAN INFORMATION 

SOLUTIONS, INC.’S SUR-REPLY IN OPPOSITION TO PLAINTIFF’S 

SUPPLEMENTAL MOTION FOR CLASS CERTIFICATION AND/OR FILE A 

RESPONSE TO THE SUR-REPLY

 Plaintiff Katherine A. Ruth, by counsel, hereby moves to strike Defendant Experian 

Information Solutions, Inc.’s Sur-Reply in Opposition to Plaintiff’s Supplemental Motion for 

Class Certification. In the alternative, Plaintiff requests leave of court to file a Memorandum of 

Law in response to the Experian Sur-Reply within ten (10) days. In support of her Motion, 

Plaintiff avers as follows: 

 1. On or about February 1, 2006, Defendant Experian Information Solutions, Inc. 

filed a Sur-Reply in Opposition to Plaintiff’s Supplemental Motion for Class Certification (the 

“Sur-Reply”). 

 2. The Sur-Reply should be stricken from the record because it was filed without 

leave of Court and in violation of the four case management Orders in this case governing class 

certification briefing. 

 3. In the course of submitting the issue of class certification to this Court, the parties 

entered into four separate case management stipulations, each of which was approved by the 

Case 2:05-cv-00766-TON Document 41 Filed 02/07/06 Page 3 of 8
Court. Attached hereto as Exhibit A are the four court approved stipulations, entered June 16, 

2005, August 12, 2005, November 8, 2005 and December 14, 2005. 

 4. Each stipulation provided for and contemplated only the following filings by the 

parties: a supplemental submission by Plaintiff in support of her Motion for Class Certification; a 

response by Defendant; and, a reply brief by Plaintiff. See Exhibit A. 

 5. Plaintiff filed her submissions in accordance with the case management Orders. 

6. Defendant never requested and Plaintiff never agreed to the filing of the SurReply by Defendant. 

7. Local Rule of Civil Procedure 7.1(c), governing motion practice in the Eastern 

District of Pennsylvania, provides only for a motion and an answer and brief in opposition, 

“[u]nless the parties have agreed upon a different schedule and such agreement is approved [by 

the Court].” Here, the parties agreed, and the Court approved, four separate stipulations 

governing class certification briefing, none of which permitted Defendant to file the Sur-Reply. 

8. While Local Rule 7.1(c) does allow the Court to “permit further briefs if 

appropriate,” Defendant did not request the Court’s leave before it filed the Sur-Reply. 

9. Defendant violated the four court-approved stipulations and the Local Rules by 

filing the Sur-Reply without the permission of the Court. 

10. Plaintiff has been prejudiced by Defendant’s actions in violation of the Local 

Rules and the court-approved case management stipulations. Experian’s Sur-Reply contains 

numerous incorrect assertions and arguments that Plaintiff will be unable to respond to unless 

she also files an unauthorized response brief or obtains this Honorable Court’s permission to do 

so. 

Case 2:05-cv-00766-TON Document 41 Filed 02/07/06 Page 4 of 8
WHEREFORE, Plaintiff respectfully requests that the Defendant’s Sur-Reply be stricken 

from the record. In the alternative, Plaintiff requests that she be granted leave to file a 

Memorandum of Law in Reply to Defendant’s Sur-Reply within ten (10) days of an Order 

granting such relief. 

Respectfully submitted, 

 FRANCIS & MAILMAN, P.C. 

Dated: February 7, 2006 BY: ____________________________ 

 JAMES A. FRANCIS, ESQUIRE 

 MARK D. MAILMAN, ESQUIRE 

 JOHN SOUMILAS, ESQUIRE 

Land Title Building, 19th Floor 

 100 South Broad Street 

 Philadelphia, PA 19110 

(215) 735-8600 

 DONOVAN SEARLES, LLC

 DAVID A. SEARLES, ESQUIRE 

 1845 Walnut Street, Suite 1100 

 Philadelphia, PA 19103

 (215) 732-6067 

 Attorneys for Plaintiff and the Class 

 

Case 2:05-cv-00766-TON Document 41 Filed 02/07/06 Page 5 of 8
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF PENNSYLVANIA

 

Katherine A. Ruth ) 

on behalf of herself and all others ) 

similarly situated ) 

 ) C.A. No. 05-CV-766 

 Plaintiff, ) 

 vs. ) 

 ) 

Experian Information Solutions, Inc. ) 

 ) CLASS ACTION 

 Defendant. ) 

 ) 

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S 

MOTION TO STRIKE DEFENDANT EXPERIAN INFORMATION 

SOLUTIONS, INC.’S SUR-REPLY IN OPPOSITION TO PLAINTIFF’S 

SUPPLEMENTAL MOTION FOR CLASS CERTIFICATION

As set forth in the foregoing Motion, Defendant Experian Information Solutions, Inc. 

violated four court-approved stipulations and the Local Rules of Civil Procedure when it filed a 

Sur-Reply in Opposition to Plaintiff’s Supplemental Motion for Class Certification (the “SurReply”). Plaintiff has been prejudiced by Defendant’s actions and requests that the Sur-Reply be 

stricken from the record. In the alternative, Plaintiff requests that she be granted ten (10) days to 

file a Memorandum of Law in Reply to the Sur-Reply. 

Local Civil Rule 7.1(c) requires the filing of a brief in support of every motion not 

certified as uncontested. The opposing party must file its brief in opposition “within fourteen 

(14) days after service of the motion and supporting brief.” The Rule provides only for a brief in 

support of a motion and a brief in opposition; it does not provide for reply briefs or sur-rebuttal 

briefs. Some judges in this District may permit deviations from the Local Rule. For example, 

the late Judge James McGirr Kelly had a standing order permitting reply briefs in civil cases. 

See United States v. Sokolow, 1999 WL 275000 n.1 (E.D. Pa. May 5, 1999) (“by Standing Order 

in civil matters, reply briefs are allowed as of right”). 

Case 2:05-cv-00766-TON Document 41 Filed 02/07/06 Page 6 of 8
In the absence of such a standing order, leave to file a reply brief, let alone a sur-reply 

brief, must be sought from the Court. Beaver v. DISA, 838 F. Supp. 206, 215 (E.D. Pa. 1993) 

(Van Antwerpen, J.) (motion for leave to file reply brief moot). See also United States v. 

Borrome, 2000 WL 298989 (E.D. Pa. March 15, 2000) (Van Antwerpen, J.) (analogizing request 

to reply to government answer to habeas corpus motion to request to file reply brief). 

Failure to ask for advance permission may result in the reply brief not being received or 

considered. See SEC v. Going Platinum, Inc., 2004 WL 2203716 (E.D. Pa. Sept. 24, 2004) 

(Gardner, J.) (“Defendant never sought permission from the court to file his reply brief, and the 

undersigned did not grant leave. Accordingly, ... we strike defendant’s reply brief”); Massaro v. 

Bard Access Sys., 209 F.R.D. 363 (E.D. Pa. 2002) (Robreno, J.) (“Because the court had neither 

required nor permitted the filing of such [additional] brief, the brief will be stricken and will not 

be considered by the court”); Cooper v. Nationwide Mut. Ins. Co., 2002 WL 31478874 (E.D. Pa. 

Nov. 7, 2002) (Dalzell, J.) (“Defendant appended a reply brief to its request for oral argument 

without first requesting leave of the Court. See Loc. R. Civ. P. 7.1. We therefore decline to 

consider the new arguments Nationwide advances in this brief”); Schmidt, Long & Associates v. 

Aetna U.S. Healthcare, 2001 WL 856946 (E.D. Pa. July 26, 2001) (Padova, J.) (“the Court struck 

Plaintiff’s reply brief from the record for failure to comply with Court policy and Local Rule of 

Civil Procedure 7.1(c)”). 

While the cases cited above refer to the impropriety of filing a reply brief without leave 

of court, they obviously support with even more authority the proposition that sur-replies cannot 

be filed in such circumstances. The parties here expressly negotiated, and the Court approved, 

only three filings: Plaintiff’s supplemental submission in support of her Motion for Class 

Certification; Defendant’s response, and Plaintiff’s reply brief. See Exhibit A to foregoing 

Case 2:05-cv-00766-TON Document 41 Filed 02/07/06 Page 7 of 8
Motion. Defendant has blatantly violated those Orders and the Local Rules by filing the SurReply without first seeking the Court’s permission. As such, the Sur-Reply should be stricken 

from the record. 

In the alternative, due to the prejudice caused by Defendant’s improper actions, Plaintiff 

should at the very least be granted ten (10) days to file a Memorandum of Law in Reply to 

Defendant’s Sur-Reply. 

Respectfully submitted, 

 FRANCIS & MAILMAN, P.C. 

Dated: February 7, 2006 BY: ____________________________ 

 JAMES A. FRANCIS, ESQUIRE 

 MARK D. MAILMAN, ESQUIRE 

 JOHN SOUMILAS, ESQUIRE 

Land Title Building, 19th Floor 

 100 South Broad Street 

 Philadelphia, PA 19110 

(215) 735-8600 

 DONOVAN SEARLES, LLC

 DAVID A. SEARLES, ESQUIRE 

 1845 Walnut Street, Suite 1100 

 Philadelphia, PA 19103

 (215) 732-6067 

 Attorneys for Plaintiff and the Class 

 

Case 2:05-cv-00766-TON Document 41 Filed 02/07/06 Page 8 of 8