United States District Court, W.D. Arkansas, Texarkana Division
SWAN B. MOSS, III, et al. PLAINTIFFS
UNITED STATES OF AMERICA DEFENDANT
O. Hickey United States District Judge
the Court is Plaintiffs' Motion to Strike the United
States' Reply Brief. ECF No. 59. Defendant, United States
of America, has filed a response to the motion. ECF No. 61.
The matter is ripe for the Court's consideration.
a consolidated action comprised of eleven similar cases
arising from the deaths of twenty campers in a tragic flood
incident in 2010 at the Albert Pike Recreation Area, which is
a public recreation area managed by the United States Forest
Service. Defendant filed a renewed motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(1) arguing that the
Court is without subject matter jurisdiction based on the
immunity provided to Defendant by the Arkansas Recreational
Use Statute (“ARUS”). ECF No. 31. After Defendant
filed its motion to dismiss, the Court, upon request by
Plaintiffs, decided to allow limited jurisdictional discovery
as to the applicability of the ARUS. The Court limited the
discovery to written discovery and a maximum of five
sought to take the depositions of six individuals associated
with the United States Forest Service. Defendant denied
Plaintiffs' request and noted that if additional
testimony was needed, Plaintiffs should address it with the
Court. Plaintiffs did not seek the Court's permission to
take any additional depositions or conduct further discovery,
and Plaintiffs filed their response to Defendant's motion
to dismiss. ECF No. 52. Defendant filed a reply in support of
its motion to dismiss along with a declaration of Kathryn
Duncan, a declaration of Tim Fincham, and a declaration of
William Pell. ECF No. 58. Defendant identified all three
of these potential witnesses during the period of limited
discovery, but Plaintiffs did not choose to depose any of
these three potential witnesses as part of their allotted
declaration of Kathryn Duncan attached to Defendant's
reply includes testimony regarding the process associated
with the National Environmental Policy Act of 1969, 42 U.S.C.
§§ 4321, et seq., which requires federal
agencies to assess the environmental effects of their
proposed actions prior to planning and decision-making. Tim
Fincham's designation attached to the reply includes a
reference to a map developed in June 2015 to depict the
location of prior flooding events. The declaration of William
Pell attached to the reply includes testimony regarding
revenues derived from camping at the Albert Pike Recreational
Area and their correlation to other Albert Pike Recreational
argue that Defendant could have filed this evidence with its
motion to dismiss and that allowing Defendant to file it with
its reply is unfair to Plaintiffs. Thus, Plaintiffs move the
Court to strike Defendant's reply pursuant to Federal
Rule of Civil Procedure 6(c)(2) and Local Rule 7-2(c). In the
alternative, Plaintiffs request the ability to depose Kathryn
Duncan, William Pell, and Tim Fincham.
6(c)(2) states that “[a]ny affidavit supporting a
motion must be served with the motion.” Fed.R.Civ.P.
6(c)(2). Local Rule 7-2(c) provides that where a motion
requires consideration of facts not appearing in the record,
then such documents or evidence, including affidavits,
necessary to support the motion must be filed when the motion
is filed. Notably, both rules are silent on the proper time
to file affidavits that support a reply.
present case, Defendant filed its Rule 12(b)(1) motion to
dismiss without the benefit of discovery. Plaintiffs,
however, were allowed to conduct discovery before filing a
response and an 81-page brief in support of its response.
Plaintiffs' argument that Defendant could have presented
the evidence contained in the declarations of Kathryn Duncan,
Bill Pell, and Tim Fincham with its motion to dismiss is
could not have anticipated which witnesses would be deposed
during the limited discovery period and what factual
assertions, arguments, and challenges Plaintiffs would assert
after the completion of discovery. “[C]ourts have held
that filing an affidavit with a reply is appropriate when the
affidavit addresses matters raised in the opposition.”
Kershner v. Norton, No., Civil Action No. 02-1887
(RMU), 2003 WL 21960605, at *2 (D.D.C. Aug. 14, 2003) (citing
McGinnis v. Southeast Anesthesia Assocs., 161 F.R.D.
41, 42 (W.D. N.C. 1995); Litton Indus., Inc. v. Lehman
Bros. Kuhn Loeb, Inc., 767 F.Supp. 1220, 1235
(S.D.N.Y.1991)); see Stewart-Patterson v. Celebrity
Cruises, Inc., No. 12-20902-CIV, 2012 WL 5997057 at *1
(S.D. Fla. Nov. 30, 2012). “Such an approach fulfills
the purpose of Rule 6(d), which is to avoid unfair surprise
and permit the court to resolve motions on the merits.”
Kershner, 2003 WL 21960605 at *2 (citing
McGinnis, 161 F.R.D. at 42). In the present case,
Defendant's reply brief appropriately addressed new and
unanticipated arguments made in Plaintiff's response and
supplemented arguments included in its motion to dismiss.
See Key v. Shelby Co., 551 F. App'x. 262 (6th
Cir. 2014) (stating that reply affidavits merely responding
to arguments presented in a response are not new evidence).
Plaintiff's Motion to Strike and alternative request to
depose Kathryn Duncan, Bill Pell, and Tim Fincham (ECF No.
59) is DENIED.
SO ORDERED, this 28th day of September, 2017
 Defendant attached to its motion to
dismiss declarations of Tim Fincham and Bill Pell. The
declarations attached to Defendant's reply ...