DEFENDANT’S RESPONSE TO PLAINTIFF’S DOCKET 66 Page 1 of 4

FP 50555235.1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JASON WALTERS,

Plaintiff,

v.

EXEL, INC. D/B/A DHL SUPPLY CHAIN,

Defendant.

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CIVIL ACTION NO. 3:22-cv-01840-K

DEFENDANT’S RESPONSE TO 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

Defendant Exel Inc. d/b/a DHL Supply Chain (“Defendant” or “Exel”) files this Response

to Plaintiff Jason Walters’ “Opposed Motion for Leave to File Reply Brief to Defendant’s Brief in 

Reply in Opposition to Defendant’s Motion for Summary Judgment” (“Plaintiff’s Motion for 

Leave to File MSJ Sur-Reply”) [Dkt. 66.] In support thereof, Defendant would respectfully show 

the Court as follows:

I. SUMMARY

Plaintiff attempts to belatedly seek leave to file a sur-reply to Defendant’s Motion for 

Summary Judgment, after improperly filing his Reply to Defendant’s Motion to Strike Plaintiff’s 

Inadmissible Summary Judgment Evidence (“Plaintiff’s Sur-Reply”). [See Dkt. 64.] Defendant 

struggles to decipher what Plaintiff’s Motion for Leave to File MSJ Sur-Reply seeks to file a surreply to. Defendant, as the original moving party, filed a Motion to Strike Plaintiff’s Inadmissible 

Summary Judgment Evidence (“Defendant’s MTS”). [Dkt. 61.] Plaintiff then filed a “Plaintiff’s 

Brief in Reply in Opposition to Defendant’s Motion for Summary Judgment,” which improperly 

included arguments and attempted to introduce new evidence in response to Defendant’s Motion 

for Summary Judgment and also responded to Defendant’s Motion to Strike (“Plaintiff’s SurCase 3:22-cv-01840-K Document 68 Filed 05/06/24 Page 1 of 4 PageID 1287
DEFENDANT’S RESPONSE TO PLAINTIFF’S DOCKET 66 Page 2 of 4

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Reply”). [Dkt. 64.] Defendant then filed its MTS Reply [Dkt. 65], pointing out the improprieties 

of Plaintiff’s Sur-Reply. Plaintiff now has filed two motions for leave to file sur-replies. [See Dkt. 

66, 67.] Docket 66 appears to seek leave to file Docket 64 as a sur-reply to Defendant’s MSJ.

In addition to the reasons set forth in Defendant’s Reply to Plaintiff’s “Brief in Reply in 

Opposition to Defendant’s Motion for Summary Judgment” (“Defendant’s MTS Reply”) [Dkt. 

65], Plaintiff has presented no new evidence or legal theories that were raised in Defendant’s Reply 

in Support of Its Motion for Summary Judgment (“Defendant’s MSJ Reply”). [See Dkt. 63.] 

Accordingly, Plaintiff’s attempt to simply have the last word is improper, and Plaintiff’s Motion 

for Leave to File MSJ Sur-Reply [Dkt. 66] should be denied, and Plaintiff’s Sur-Reply [Dkt. 64] 

should be struck.

Moreover, Plaintiff appears to have combined his motion, brief, and exhibits into one 

document. To the extent Plaintiff’s hodgepodge filing violates Local Rule 7.1 and 7.2, Plaintiff’s 

Motion for Leave to file MSJ Sur-Reply should be denied and/or struck.

II. ARGUMENTS AND AUTHORITIES

A sur-reply is appropriate “only when the movant raises new legal theories or attempts to 

present new evidence at the reply stage.” Makhlouf v. Tailored Brands, Inc., 2017 WL 10922311, 

at *5 (S.D. Tex. Mar. 23, 2017) (citing to Murray v. TXU Corp., No. Civ.A. 303CV0888P, 2005 

WL 1313412, at *4 (N.D. Tex. May 27, 2005)). “Leave to file a surreply is not appropriately 

granted where the proposed surreply does not include new arguments or evidence or merely 

restates arguments in the movant's response. Makhlouf, 2017 WL 10922311, at *5 (citing

Lombardi v. Bank of America, Civ. Action No. 3:13–cv–1464–O, 2014 WL 988541, at *3 (N.D. 

Tex. Mar. 13, 2014)). “Surreplies, and any other filing that serves the purpose or has the effect of 

a surreply, are highly disfavored, as they usually are a strategic effort by the nonmovant to have 

the last word on a matter.” Lacher v. West, 147 F.Supp.2d 538, 539 (N.D. Tex. 2001).

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Here, Defendant presented no new legal theories and presented no new evidence in its MSJ 

Reply. There has been no new discovery conducted following Defendant’s Motion for Summary 

Judgment [See Dkt. 56]. Moreover, Plaintiff has pointed to no such new legal theory or evidence.

Plaintiff even acknowledges he failed to file for leave previously and now belatedly seeks leave to 

file a sur-reply. Indeed, the “Exhibit A” Plaintiff attached to Plaintiff’s Motion for Leave to file 

MSJ Sur-Reply appears to simply be Plaintiff’s Sur-Reply [Dkt. 64]. Plaintiff has demonstrated 

no circumstance in which a sur-reply should be allowed. It is clear that Plaintiff simply wants to 

have the last word.

III. CONCLUSION AND PRAYER

For the forgoing reasons and the reasons set forth in Defendant’s MTS Reply [Dkt. 65], 

Defendant prays that the Court deny Plaintiff’s Motion for Leave to File MSJ Sur-Reply [Dkt. 66] 

and strike all portions of Plaintiff’s Sur-Reply [Dkt. 64] that fall outside the scope of responding 

to Defendant’s Motion to Strike Plaintiff’s Inadmissible Summary Judgment Evidence.

Respectfully submitted,

/s/ Annie Lau

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

COUNSEL FOR DEFENDANT

EXEL INC. d/b/a DHL SUPPLY CHAIN

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CERTIFICATE OF SERVICE

On the 5th day of May, 2024, I filed the foregoing document with the Clerk of Court for the 

United States District Court, Northern District of Texas, using the Court’s Electronic Case Filing 

system. I hereby certify that I have served the document on all counsel of record by a manner

authorized by FED. R. CIV. P. 5 (b)(2).

Bob Whitehurst 

5380 Old Bullard Road, Suite 600, #363

Tyler, TX 75703

whitehurstlawfirm@yahoo.com 

Donald E. Uloth

LAW OFFICE OF DONALD E. ULOTH

18208 Preston Road, Suite D-9 #261

Dallas, TX 75252

don.uloth@uloth.pro

/s/ Annie Lau

Annie Lau

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