IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION 

JASON WALTERS 

Plaintiff 

 

vs. CIVIL ACTION 3:22-cv-01840-C

 JURY REQUESTED

EXEL, INC. D/B/A 

DHL SUPPLY CHAIN

Defendant

PLAINTIFF’S OPPOSED MOTION FOR LEAVE TO FILE REPLY BRIEF TO

DEFENDANT’S BRIEF IN REPLY IN OPPOSITION TO DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

TO THE HONORABLE UNITED STATES DISTRICT COURT:

COMES NOW Plaintiff, in the above entitled and numbered cause, and respectfully requests

leave of court to file his Reply Brief, in Opposition to Defendant’s Motion for Summary Judgment,

that was filed on March 25, 2024, without leave of court.

(See Exhibit “A” attached hereto and incorporated by reference herein.).

I.

Plaintiff requests leave of court to file a Reply to Defendant’s Reply in Support of its Motion

for Summary Judgment and would show this Honorable Court as follows:

II.

Motions for leave to amend are typically governed by [Federal Rule of Civil Procedure]

15(a)(2), or, if the time to seek leave to amend has expired, by [Federal Rule of Civil Procedure]

16(b)(4) and then by Rule 15(a)(2)."). When the party is not subject to an expired deadline for

seeking leave to amend, Rule 15(a) requires that leave to amend be granted freely "when justice so

requires." FED. R. CIV. P. 15(a)(2). Leave to amend is not automatic, Jones v. Robinson Prop.

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 1

Case 3:22-cv-01840-K Document 66 Filed 04/15/24 Page 1 of 3 PageID 1220
Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005), but the federal rules' policy "is to permit liberal

amendment to facilitate determination of claims on the merits and to prevent litigation from

becoming a technical exercise in the fine points of pleading," Dussouy v. Gulf Coast Inv. Corp., 660

F.2d 594, 598 (5th Cir. 1981). The Court "may consider a variety of factors" when deciding whether

to grant leave to amend, "including undue delay, bad faith or dilatory motive on the part of the

movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice

to the opposing party by virtue of allowance of the amendment, and futility of the amendment."

Jones, 427 F.3d at 994. Rule 15(a) provides a "strong presumption in favor of granting leave to

amend,"Fin. Acquisition Partners, LP v. Blackwell, 440 F.3d 278, 291 (5th Cir. 2006), and the

Court must do so "unless there is a substantial reason to deny leave to amend," Dussouy, 660 F.2d at

598; accord Jebaco Inc. v. Harrah's Operating Co. Inc., 587 F.3d 314, 322 (5th Cir. 2009) ("leave to

amend is to be granted liberally unless the movant has acted in bad faith or with a dilatory motive,

granting the motion would cause prejudice, or amendment would be futile").

III.

First Plaintiff has no excuse for failing to file a leave to amend prior to filing Plaintiff’s

Brief in Reply in Opposition to Defendant’s Motion for Summary Judgment.

IV.

CONCLUSION

The facts to be decided by the trier of fact to whether was or was not an exempt

employee under the Fair Labor Standards Act, whether Plaintiff was terminated because of his

age, and whether the required COBRA requirements were completed by the Defendant.

WHEREFORE PREMISES CONSIDERED, Plaintiff Jason Walters prays that, the

Court grant Plaintiff’s Motion for Leave to File Reply Brief to Defendant’s Brief in Reply in 

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 2

Case 3:22-cv-01840-K Document 66 Filed 04/15/24 Page 2 of 3 PageID 1221
Opposition to Defendant’s Motion for Summary Judgment, and that Plaintiff have such other and

further relief to which he may show himself justly entitled, whether at law or in equity

Respectfully submitted

_/S/________________

 Bob Whitehurst

State Bar No. 21358100

Bob Whitehurst

5380 Old Bullard Road

 Suite 600, #363

Tyler, Texas 75703

(903)593-5588

(214)853-9382

CERTIFICATE OF CONFERENCE

In accordance with Local Rules, I certify that I attempted to confer with Defendant’s

Counsel regarding the brief filed on March 25, 2024 via phone and email. Defendant’s counsel

indicated that her client was opposed to said reply.

Dated April 15, 2024.

/s/ Bob Whitehurst

Bob Whitehurst

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument was

served upon the attorney's of record in accordance with the applicable Rules of Civil Procedure

on this 15th

 day of April, 2024

Bob Whitehurst

Bob Whitehurst

Annie Lau

Texas Bar No. 24057723

FISHER & PHILLIPS LLP

500 N. Akard Street, Suite 3550

Dallas, Texas 75201

Telephone: (214) 220-9100

Facsimile: (214) 220-9122

alau@fisherphillips.com

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 3

Case 3:22-cv-01840-K Document 66 Filed 04/15/24 Page 3 of 3 PageID 1222