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August 01, 2018 Top Story

Failure to File Surreply Leads to Waiver on Appeal

Appellate court cites trial court’s local rules in decision

By Matthew S. Mulqueen

A party may waive arguments on appeal by failing to file a surreply allowed by right.

A supervisor was fired after requesting an employee bring him gas when his car ran out and failing to adjust the timesheet for time off the premises

A supervisor was fired after requesting an employee bring him gas when his car ran out and failing to adjust the timesheet for time off the premises

Pexels | Skitterphoto

In Ennin v. CNH Indus. Am., LLC, an appellate court ruled in favor of a defendant where the plaintiff did not counter the defendant’s evidentiary objections with a surreply during motion practice before the trial court. The decision is a reminder to pursue arguments in a timely and zealous manner, say ABA Section of Litigation leaders.

Out of Gas and Out of Work

A manufacturing supervisor found his car sputtering out of gas on the way to work. The supervisor’s shift was about to start in seventeen minutes. The supervisor called one of his employees, who had already clocked in, to come help. The pair gassed up the car and returned to work using the supervisor’s entrance, even though his employee was not supposed to do so. The supervisor then failed to adjust the employer’s timekeeping system to reflect the employee’s time off the premises.

Based on the events of that day, as well as a prior instance of alleged misconduct, the company decided to terminate the supervisor’s employment. But before a human resources representative could inform him, the supervisor requested and received a month-long leave from the company’s third-party health plan administrator to address a previously-planned hemorrhoidectomy. When human resources learned of the leave ten days later, a representative sent the supervisor a letter informing him that his employment was terminated. The letter stated that the decision had been made prior to the supervisor requesting leave.

The supervisor sued the company, arguing that he was fired because of his race, national origin, disability (related to the hemorrhoidectomy), and decision to take FMLA leave. The company moved for summary judgment. In his response, the supervisor cited evidence that the manufacturer did not decide to terminate his employment until after it found out about his leave. The company argued in its reply that the supervisor’s evidence was hearsay and unauthenticated.

Although the Local Rules of the Southern District of Indiana permitted the supervisor to file a surreply as of right to respond to the company’s evidentiary objections, he failed to do so. The district court excluded the evidence and granted summary judgment to the manufacturer. The supervisor appealed.

Waived Opportunity

The U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s judgment. By not filing a surreply, the appellate court reasoned that the supervisor waived the admissibility of the evidence that his employer had attacked, leaving nothing but speculation to support the supervisor’s claims.

The Seventh Circuit distinguished a previous line of cases in which it had held that a litigant need not seek leave to file a surreply to preserve an argument for appeal. In those cases, the appellate court had concluded that it would be unfair to exclude arguments on appeal because the party did not have a meaningful opportunity to be heard in the district court. A motion for leave to file a surreply was not a meaningful opportunity to be heard because, absent a rule allowing such filings as of right, surreplies are typically disfavored and discouraged.

By contrast, the supervisor had the right to file a surreply brief under the district court’s local rules, and thus, did have a meaningful opportunity to be heard on the evidentiary issue. The Seventh Circuit concluded that the supervisor’s failure to take that opportunity constituted “the very essence of waiver.”

Balancing Zealous Representation with Practical Concerns

“Procedurally, the appellate court reached the right decision based on the local rules,” states Franchesca L. Hamilton-Acker, Lafayette, LA, Chief Diversity Officer and Secretary of the Section of Litigation. Litigants “need to be cognizant of the preferences of judges and have full comprehension of applicable local rules,” adds Hamilton-Acker.

“The appellate court appeared to say that if there was no meaningful opportunity to raise an evidentiary issue in the district court—for example, if the local rules did not allow for a surreply as a matter of right—the argument would not be waived on appeal,” states Michael R. Lied, Peoria, IL, cochair of the Section’s Trial Evidence Committee. Nevertheless, attorneys should consider “seeking leave to file a surreply and attaching it to the motion to bring the issue to the district court’s attention,” even in the absence of a similar local rule, advises Lied. “Here, the evidentiary issue might have saved the plaintiff’s case, so I think zealous representation would have warranted filing the surreply,” he explains.

Instead of erring on the side of failing to file a motion, lawyers can “keep briefs concise and focus on the quality of the arguments,” advises Hamilton-Acker. “Avoiding frivolous arguments can help maintain balance” between zealous representation and pushing too hard, she concludes.


Matthew S. Mulqueen is an associate editor for Litigation News.

Hashtags: #waiver, #surreply, #evidence

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