Opinion
Civil Action 23-202- SDD-EWD
11-21-2023
ROBERT TALLEY v. MASTEC, INC., ET AL.
RULING AND ORDER
ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE
Before the Court is the Joint Motion for Judicial Notice and Joint Motion for Leave to File Sur-Reply,filed by Defendants MasTec Network Solutions, LLC (“MasTec”), Rene Boudreaux (“Boudreaux”), and Mesa Underwriters Specialty Insurance Company (“MUSIC”), and Plaintiff's Motion for Leave of Court to File Response Memorandum and Objection to Defendants' Joint Sur-Reply Memorandum,filed by Plaintiff Robert Talley.
R. Doc. 60.
R. Doc. 61.
These additional filings spring from the Motion for Leave to File Second Amended Complaint (“Motion to Amend”),filed by Plaintiff, which seeks to, among other things, add an additional party, the City of Baton Rouge and Parish of East Baton Rouge, to provide additional citizenship information about the parties, and to add a specific claim for trespass. Defendants have already filed opposition memoranda and Plaintiff has filed a reply memorandum, in excess of the standard page limit, related to the Motion to Amend.
R. Doc. 51.
R. Docs. 53 & 54.
R. Doc. 59.
Defendants' request to file a sur-reply will be denied. Sur-replies are generally disfavored, the Joint Motion does not explain why the argument and evidence regarding an alleged utility servitude on Plaintiff's property were not raised in Defendants' opposition memoranda in support of their futility argument, and the remaining arguments mainly re-assert the opposition memoranda. Additionally, Defendants' Request for Judicial Notice of the plat will be denied because information outside the proposed pleading and attachments is not properly considered when evaluating the futility of an amendment, which is subject to a Fed.R.Civ.P. 12(b)(6) analysis. Plaintiff's Motion is mooted by the denial of Defendants' Joint Motion.
See Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014) (“An amendment is futile if it would fail to survive a Rule 12(b)(6) motion. Id. Therefore, we review the proposed amended complaint under ‘the same standard of legal sufficiency as applies under Rule 12(b)(6).' Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000) (citation internal and quotation marks omitted).”) and see Walch v. Adjutant Gen.'s Dep't of Texas, 533 F.3d 289, 293 (5th Cir. 2008)(“The Rule 12(b)(6) analysis is generally confined to a review of the complaint and its proper attachments .”)(citation omitted).
Accordingly, IT IS ORDERED that the Joint Motion for Judicial Notice and Joint Motion for Leave to
File Sur-Reply, filed by Defendants MasTec Network Solutions, LLC, Rene Boudreaux, and Mesa Underwriters Specialty Insurance Company, is DENIED.
R. Doc. 60.
IT IS FURTHER ORDERED that Plaintiff's Motion for Leave of Court to File Response Memorandum and Objection to Defendants' Joint Sur-Reply Memorandum,filed by Plaintiff Robert Talley, is DENIED AS MOOT.
R. Doc. 61.