Opinion
Civil Action No. 3:00-CV-2770-D
July 24, 2002
MEMORANDUM OPINION AND ORDER
The July 19, 2002 motion of defendants David C. Tyrrell, Jr., Turtle Creek Resources, Inc., and ASM Exploration, Inc. for leave to file an appendix in support of their motion for summary judgment is denied. In Dethrow v. Parkiand Health Hospital System, 204 F.R.D. 102 (N.D. Tex. 2001) (Fitzwater, J.), the court held that "a summary judgment movant may not, as of right, file an appendix in support of his reply brief" Id. at 104. The court also recognized that, "under the governing substantive law, the summary judgment movant [may be] entitled at the reply stage to rely on additional evidence to support his motion[.]" Id. In that event, however, the summary judgment movant "must seek leave of court to file a reply appendix." Id.
In defendants' instant motion for leave, the entire rationale for requesting permission to file a reply appendix is contained the following assertion: "This Appendix is necessary in order for Defendants to properly reply to Plaintiff's response." Ds. Mot. Leave at 1. A conclusory contention that a reply appendix is needed will never be sufficient to establish, as Dethrow requires, that, under the governing substantive law, the summary judgment movant is entitled to file a reply appendix so that he can rely on additional evidence to support his motion.
Accordingly, defendants' motion for leave to file an appendix in support of their motion for summary judgment is denied.