Our blogs have been following the Lance Armstrong v. USADA, et al. case which is currently proceeding in the United States District Court for the Western District of Texas.  While the case presents intricate issues of constitutional due process; private versus state action; and enforceability of arbitration clauses, we have been intrigued by the technical and procedural issues the case has presented.  We wrote about pleading deadlines when Armstrong's attorneys miscalculated the response date ... and we discussed brief page limits when Armstrong asked for more space to argue his case.  Yesterday, Armstrong filed  a Sur-Reply in Opposition to USADA's Motion to Dismiss. 

First, what is a "Sur-Reply?"  A sur-reply is a reply filed in response to the reply to a motion… motions go like this: Motion >Response> Reply.  Party A ("movant") files a Motion that asks the court to do something and argues its position – Party B ("non-movant") files a response which argues against the Motion – Party A then files a Reply which supports the Motion – but Party A is limited to those arguments and law raised in its original Motion.  After the reply is filed, the issue is “fully briefed.” 

However, when the reply brief raises new material that was not included in the original motion, courts may permit the non-movant to respond to the new material in a “sur-reply.”  No authorization exists in the Federal Rules of Civil Procedure (or the local rules of Western District of Texas) that permit a sur-reply and therefore, the party wishing to file a sur-reply must motion the court for leave to file a sur-reply.  USDC WD Texas Local Rule 7(e)-(f) deals with responses and replies. 7(f) states: “A party may file a reply in support of a motion. Absent leave of court, no further submissions on the motion are allowed.”  Further, a motion for leave is it own motion, separate and distinct from the underlying motion, and therefore, under most local rules (and USDC WD Texas Local Rule CV-7 (i)) requires a “meet and confer" prior to filing.

So, what did Lance Armstrong file?  He filed a sur-reply brief – he did not comply with Local Rule 7 and file a motion asking the court for leave to file the sur-reply itself (strike one) and he did not comply with Local Rule 7(i) and meet and confer with USADA (strike two).  Further, Armstrong did not argue that a sur-reply brief was necessary under the circumstances of the case. He did not show that USADA had presented new material in its reply brief that it had not included in the original Motion to Dismiss. (strike three).  Thus, the Court should find that Armstrong’s surreply brief is improper and should be stricken.

Why did Armstrong’s legal team yet again disregard the local rules?  It’s anyone’s guess … but headed into today’s hearing, it’s my guess that Armstrong’s legal team is clearly trying (desperately so) to get as much information in front of the Court as possible.  Most likely, Judge Sparks read the sur-reply headed into today’s hearing – even if he says otherwise and doesn’t allow the filing to stand.  The goal by Armstrong being just to get it all out and argue like mad today.   

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