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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MICHELLE LEAL, ) 

Plaintiff )

)

-v- ) Cause No. 2:13-cv-318

)

TSA STORES, INC., d/b/a )

THE SPORTS AUTHORITY, )

et al., )

Defendants. )

PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE OF 

COURT TO FILE PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT 

URBAN EXPRESS ASSEMBLY, LLC’s MOTION FOR SUMMARY JUDGMENT

Come now, the Plaintiff and files her Reply in Support of Plaintiff’s Motion for Leave of 

Court to file Plaintiff’s Response in Opposition to Defendant, Urban Express Assembly, LLC’s

Motion for Summary Judgment, and states as follows:

Defendant Urban Express Assembly LLC (“Urban Express”) asserts the time since originally 

filing its motion for summary judgment as a justification for this Honorable Court to deny 

Plaintiff’s motion for leave for its response. [DE#55 pp.1&2--Urban Express’ Resp. in 

Opposition to Pl.’s Mot. For Leave to File Belated Summ. J. Resp. (“Response”)] Urban Express

particularly focuses on the nine (9) month period between the original filing of the summary 

judgment motion and the present. [DE#55 p.2--Response] However, Urban Express’ Response

ignores the procedural history justifying the delay for all parties to respond. Foremost, Urban

Express filed its Motion prior to this action being removed to federal court. [See, DE#3 Notice of 

Removal filed Sept. 10, 2013] At the time of removal, no party was permitted to conduct 

discovery until after the Court and parties participated and conducted the necessary conferences 

required prior to the Court’s FRCP Rule 16 Pretrial Conference and Order which pretrial 
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conference was not conducted until December 12, 2013. [See, DE#25, dated Dec. 13, 2013] At 

that time, without objection noted in the record, all Parties acknowledged the need for some 

discovery to be permitted before responding to Urban Express’ motion for summary judgment by 

or before April 14, 2014. [DE#25] The delay before a response by any party was justified by the 

procedural history in this case, and Urban Express did not assert any objection to the same as the 

delay was reasonable and justified in the circumstances.

Moreover, other Defendants in this case sought extensions of time in order to respond to 

Urban Express’ motion for summary judgment. In particular, East Coast Cycle Supply, Inc. 

(“ECCS”), specifically requested an extension in order to respond, and the same was granted by 

this Honorable Court. [See, DE#6 & DE#14--Minute Order dated Oct.14, 2013] Implicitly, 

Urban Express was on notice of Co-defendants’ desire to file responses and did not raise a 

standing objection to the either the motion for extension and/or to the Court’s grant of the 

extension of time in which to respond to the motion for summary. Notably these extensions, and 

the Court’s grant of ECCS’s motion for extension of time to respond to the Urban Express’

motion for summary judgment predated the ruling in Meinert v. US Steel Corp., 2014 WL 

772613 (Feb. 25, 2014). As the Court noted in its Order, the ruling in Meinert determines that 

Co-defendants lack standing to oppose a motion for summary judgment when Plaintiff has not 

filed a response thereto and where no cross-claims have been filed amongst Defendants. [See,

DE#52] This Honorable Court’s Order also permitted the Parties to file supplemental briefs in 

order to address the recent holding in Meinert and this Honorable Court indicated that the

Plaintiff had the same thirty (30) days in which to seek leave to file a Response in opposition to 

Urban Express’ Motion for Summary Judgment. [DE#52] Plaintiff filed her motion for leave on

June 13, 2014, and attached her Response in opposition to the motion for summary judgment as 
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an exhibit. [See, DE#53]

Urban Express also suggests the original motion for leave improperly identified “crossmotions” as cross claims. [DE#55 p.2--Response] Urban Express further notes that Meinert did 

not address cross-motions but rather cross-claims. [DE#55 p.2--Response] This objection is well 

taken. The Plaintiff’s Motion for leave identified cross-motions in several areas referring to 

presumably a cross-motion for leave sought by respective counsel for TSA Stores Inc. d/b/a The 

Sports Authority (“TSA”) and ECCS to add cross-claims. Ultimately, for standing purposes

under Meinert, it is correct that for TSA and ECCS to oppose a summary judgment motion, when 

plaintiff does not respond, TSA and ECCS would need to file a cross-claim and not a crossmotion. (The objection actually underscores the point regarding judicial efficiency where crossmotions followed by cross-claims ultimately leading to summary judgment responses are 

avoided by permitting the Plaintiff’s motion for leave and response.) Urban Express thereafter 

suggests the primary roadblock to a cross claim by either TSA or ECCS is that a cross-claim

would be without merit. Plaintiff will not respond to this contention in reply except to suggest 

that several arguments asserted in the Plaintiff’s Response in opposition to Urban Express’

motion for summary judgment sound or rely on the contract between Urban Express and TSA. 

[DE#53] A cross-claim on contractual issues may have merit sufficient for a claim by TSA 

where Urban Express assumed a duty to assemble finished products. However, Plaintiff has 

neither standing nor desire to assert TSA’s contractual claims. 

Speculating as to the merits of a cross-claim is unnecessary for the motion at bar and so is the 

Court reviewing the merits of the actual motion for summary judgment and/or response as it has 

been invited to do by Urban Express. Urban Express, after making the above claims regarding 

procedural history and Meinert, that it failed to assert until now, then suggests the actual 
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Response should fail based on the merits of Plaintiff’s Response itself. Of course this is an 

argument that Urban Express can make in a Reply Brief, and should not be addressed in 

considering Plaintiff’s motion for leave. In fact, Urban Express making the argument that 

Plaintiff’s Response would be defeated illustrates the lack of harm Urban Express suffers as a 

result of permitting the Plaintiff’s Motion for leave. As noted by Urban Express [DE#55 p.3--

Response], Plaintiff relied heavily on TSA’s and ECCS’s previously filed responses. 

Importantly, Urban Express, without asserting any standing argument, has already responded to 

those motions and therefore, there is no additional harm to requiring a Reply from Urban Express

to Plaintiff’s essentially identical Response. [See, DE#43]

WHEREFORE, the Plaintiff, by counsel, respectfully requests this Honorable Court enter 

an order granting Plaintiff’s Motion for Leave of Court to file Plaintiff’s Response in Opposition 

to Defendant’s, Urban Express Assembly, LLC, Motion for Summary Judgment, and for all 

other relief this Honorable Court deems appropriate and necessary.

Respectfully Submitted,

BLACHLY, TABOR, BOZIK & HARTMAN

/s/ Colby A. Barkes

Colby A. Barkes (Atty. No. 26251-64)

56 South Washington St., Suite 401

Valparaiso, In 46383

Tel: (219) 464-1041

Fax: (219) 464-0927

cabarkes@lawyersonthesquare.com
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CERTIFICATE OF SERVICE

I certify that on the 30th day of June 2014, I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF system, which sent notification to the following CM/ECF 

participants: Daniel G. Suber: Suberlawgroup@aol.com; Brock P. Alvarado: 

bpalvarado@kopkalaw.com and Rick D. Meils: rmeils@meilsattorney.com

BLACHLY, TABOR, BOZIK & HARTMAN

By: /s/ Colby A. Barkes