Is Denial of a Motion to File a Surreply Really a Denial if the Court Reads it Anyway?


Everyone likes to have the last word.  Indeed, often dubbed the "recency effect" there is scientific support that going last may increase persuasion.  But in ordinary motions practice in the EDVA, the movant both goes first and last.  Local Rule 7(f)(1) does allow the non-movant to request leave of court to file a surreply.

I often advise clients it is a request that should rarely be made before our judges.  And a recent order from Judge Miller reinforces that view as in Adams v. Applied Business Services, 2:18-cv-559 he denied the defendant's request to file its surreply.

But, the opinion does reveal what I have often found confusing about the motion for leave process.  Judge Miller implicitly demonstrates that he has reviewed the proposed surreply—he both describes its contents and quotes from the surreply.  So although he denied the motion, he did read the brief.  On appeal of the underlying motion, perhaps, the contents of the surreply are not part of the record.  But if the Defendant's goal was to focus the Court to a particular issue and reiterate its argument, the Defendant may have won the war even if it lost this particular battle.

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