Lipe v. Albuquerque Public Schools et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TATIA LIPE,
Plaintiff,
v. 	Civ. No. 23‐899 GBW/JMR
ALBUQUERQUE PUBLIC
SCHOOLS,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A SURREPLY
THIS MATTER comes before the Court on Plaintiff’s Motion For Leave to File a
Limited Surreply to Correct APS’s New Reply‐Stage Misstatements, Defective Affidavit
Evidence, and Mischaracterization of the Record. Doc. 288. Defendant filed a response
in opposition. Doc. 293. The Court, being fully advised, finds that Plaintiff’s Motion is
well‐taken and should be GRANTED.
Under Local Rule 7.4(b), “[t]he filing of a surreply requires leave of the Court.”
D.N.M.LR‐Civ 7.4(b). A motion for leave to file a surreply should be granted where the
moving party, in a reply brief, presents legal arguments or evidence not proffered in the
original motion. See Green v. New Mexico, 420 F.3d 1189, 1196‐97 (10th Cir. 2005).
Plaintiff asserts that a surreply is necessary because APS’ replies “contain new
factual assertions, new evidentiary attacks, and new affidavit evidence.” Doc. 288 at 1.
Specifically, Plaintiff finds fault with (1) Defendant’s reliance on the new affidavit of
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Michelle Candelaria (“the Candelaria Affidavit”) (doc. 280), which contains a “material
date defect” upon which APS relied; (2) APS’ assertions that Plaintiff’s evidence is
unauthenticated and inadmissible hearsay; (3) APS’ “selective use of the record”
concerning the ATF Negotiated Agreement; (4) APS’ “mischaracterization” of Plaintiff’s
interrogatory responses; and (5) APS’ reply‐stage rhetoric. Id. at 4‐10.
In response, Defendant states that (1) its brief did not set forth any new
arguments; (2) the Candelaria Affidavit was “necessary to expand upon and clarify”
Defendant’s prior argument; (3) the “material date defect” was nothing more than a
scrivener’s error; (4) Defendant addressing Plaintiff’s evidentiary deficiencies does not
establish a basis for allowing a surreply; (5) the ATF Negotiated Agreement does not
constitute an employment contract and was therefore irrelevant; (6) any misstatements
regarding Plaintiff’s interrogatory responses do not create grounds for a surreply; and
(7) Plaintiff’s offense and outrage regarding Defendant’s reply‐stage rhetoric does
necessitate a surreply. See generally doc. 293.
The Court finds that the Candelaria Affidavit (doc. 280) and APS’ new argument
that it possesses “governmental immunity against implied contractual obligations” (doc.
282 at 7‐9) constitute grounds for a surreply. 1 Accordingly, Plaintiff’s request will be
GRANTED. The surreply attached as doc. 288‐1 will be considered when resolving
Defendant’s motions for summary judgment (docs. 267, 268).
1 Plaintiff’s motion did not address the governmental immunity argument.
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Because the Court is granting Plaintiff’s motion, Defendant’s request for fees and
costs associated with responding is hereby DENIED.
_____________________________________________
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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