Miller v. CST Industries, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ARIANA MILLER,
Plaintiff,
v.
CST INDUSTRIES, INC.,
Defendant.
Case No. 2:25-cv-02511-JAR-JBW
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff Ariana Miller’s Motion for Leave to File
a Sur-Reply in Further Opposition to Defendant’s Motion for Summary Judgment (Doc. 55).
The motion is fully briefed, and the Court is prepared to rule. As described below, the motion is
granted.
I. Background
In this case, Plaintiff brings discrimination and retaliation claims under Title VII of the
Civil Rights Act of 1964 (“Title VII”) against her former employer, Defendant CST Industries,
Inc., arising out of her termination on October 31, 2024. Plaintiff alleges Defendant wrongfully
terminated her employment because of her sex and retaliated against her for her prior reports of
sexual harassment in the workplace, in violation of Title VII. Defendant contends that it
terminated Plaintiff because she failed to improve her leadership and communication abilities.
To support its contention on summary judgment, Defendant asserted that Plaintiff made
her coworker—Kylie Harper—feel used and manipulated, among other things, but Harper kept
quiet in fear of retaliation by Plaintiff.1 Defendant cited to an attachment marked as Exhibit X—
1 Doc. 45 ¶¶ 152–56.
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an unsigned handwritten text which Defendant contends Harper wrote—to support these
allegations.2 Plaintiff’s opposition brief denied Defendant’s factual contentions “as unsupported
by the cited evidence, as it is unclear what Exhibit X is, who wrote it, or why.”3 Defendant’s
reply thereafter supplemented Exhibit X with Harper’s sworn declaration that she “wrote and
submitted the attached written statement to CST about working with Ariana Miller.”4 Plaintiff
now seeks leave to file a surreply to respond to Harper’s sworn declaration.
II. Standard
“Under D. Kan. Rule 7.1(c), briefing on motions is limited to the motion (with
memorandum in support), a response, and a reply. Surreplies typically are not allowed.”5
Surreplies require leave of court and are only granted under “rare circumstances.”6 Nonetheless,
the nonmoving party on summary judgment “should be given an opportunity to respond to new
material raised for the first time in the movant’s reply.”7 Alternatively, the Court can disregard
new material raised in the reply when reaching its decision.8 New “material” includes both
evidence and legal arguments.9 However, “[a] reply which merely responds to matters placed in
issue by the response, and ‘does not spring upon the opposing party new reasons for the entry of
summary judgment’ is entirely proper.”10 “[A] reply ‘may properly highlight the deficiencies’ in
2 Doc. 45-25.
3 Doc. 47 ¶¶ 152–54, 156.
4 Doc. 53-4.
5 COPE v. Kan. State Bd. of Educ., 71 F. Supp. 3d 1233, 1238 (D. Kan. 2014).
6 Id. (quoting Humphries v. Williams Nat. Gas Co., No. 96–4196–SAC, 1998 WL 982903, at *1 (D. Kan.
Sept. 23, 1998)).
7 Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005).
8 Id.
9 Id.
10 Vonlintel v. Eagle Commc’ns, Inc., No. 14-4125-KHV, 2015 WL 5093271, at *1 (D. Kan. Aug. 28,
2015) (quoting Stevens v. Water Dist. One, 561 F. Supp. 2d 1224, 1232 (D. Kan. 2008)).
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a response ‘without opening the door to additional pleadings.’”11 The “reply serves its purpose
when it responds ‘to matters placed in issue by the response,’ rather than providing new legal
arguments.”12
III. Discussion
Defendant argues that its position that Harper wrote Exhibit X in the reply is not a new
argument, thus it does not warrant a surreply. Defendant contends that “CST identified Harper
as the document’s author in its prior briefing, and Plaintiff elected to respond only on procedural
grounds,” rather than substantive grounds.13 The Court disagrees.
Plaintiff did not respond on merely “procedural grounds.” Plaintiff objected to the
admission of Exhibit X. And Defendant did not simply respond to Plaintiff’s objections in her
response; it presented a new exhibit authenticating Exhibit X. Harper’s sworn declaration is new
material raised in Defendant’s reply; the declaration never appeared in prior briefing. This new
material warrants allowing Plaintiff to substantively respond. Thus, because the reply provided
new material, the Court grants Plaintiff leave to file the proposed surreply which addresses that
limited issue.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion For Leave
to File a Sur-Reply in Further Opposition to Defendant’s Motion For Summary Judgment (Doc.
55) is granted. Plaintiff shall file forthwith the proposed surreply attached to its motion.
11 James v. Boyd Gaming Corp., 522 F. Supp. 3d 892, 904 (D. Kan. 2021) (quoting Carter v. Spirit Aero
Sys., Inc., No. 16-1350-EFM, 2019 WL 3732684, at *12 (D. Kan. Aug. 8, 2019)).
12 Id. at 905 (alteration omitted) (quoting Carter, 2019 WL 3732684, at *12).
13 Doc. 56 at 2–3.
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IT IS SO ORDERED.
Dated: October 14, 2026
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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