DRAGON JADE INTERNATIONAL, LTD
v.
ULTROID, LLC

M.D. Fla. | 2019-08-19
No. 8:17-cv-2422
2009 WL 210723 District Court, M.D. Florida (2019) Positive Treatment
Cited by 4 cases

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Holding

The court held that a reply brief is not the proper vehicle to request affirmative relief, such as sanctions or evidentiary exclusions.

Facts & Procedural History

Dragon Jade filed a reply brief in support of its summary judgment motion. In this reply, Dragon Jade requested sanctions against Ultroid, production …

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Topics
Motion Practice Affirmative Relief

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Opinion of the Court

BEFORE THE COURT is Ultroid’s Motion to Strike Dragon Jade’s Reply Brief in Support of Summary Judgment Motion, or, in the Alternative, Motion for Leave to File a Surreply (Dkt. 146). In the Motion, Ultroid argues that Dragon Jade’s Reply should be stricken as it “contains numerous claims for affirmative relief that were not contained in Dragon Jade’s summary judgment motion or in any other motion filed by Dragon Jade.” (Dkt. 146 at p. 3). And as Ultroid correctly contends, “[a] request for a court order must be made by motion.” See Fed. R. Civ. P. 7(b)(1).

Upon review of the Reply (Dkt. 145), Dragon Jade unequivocally asks this Court to (1) “Sanction Ultroid by precluding them from using the Sworn Statement as summary judgment evidence”; direct Ultroid to “produce all withheld documents relating to the portions of the Sworn Statement used by Ultroid”; “disregard the Sworn Statement when considering any adverse inference against Ultroid to which Plaintiff is entitled”; and “exclude the affidavit of Ultroid’s patent attorney.” (Id. at pp. 2-3).

These requests are inappropriate in the context of a reply. See Armington v. Dolgencorp, Inc., No. 3:07-CV-1130-J-JRK, 2009 WL 210723, at *2 (M.D. Fla. Jan. 20, 2009) (“It is not appropriate to seek an order for affirmative relief in a response to a motion”).1 Accordingly, the Motion (Dkt. 146) is GRANTED to the extent that Dragon Jade’s Reply (Dkt. 145) is STRICKEN. All future requests for affirmative relief shall be in the form of a properly filed motion. See Fed. R. Civ. P. 7(b).

DONE AND ORDERED this 19th day of August, 2019.

/s/ James D. Whittemore

JAMES D. WHITTEMORE

United States District Judge Copies to: Counsel of Record

Footnotes
1 See also PPS Data, LLC v. Athenahealth, Inc., No. 3:11-CV-746-J-37TEM, 2012 WL 601208, at *2 (M.D. Fla. Feb. 23, 2012) (“The Court is not inclined to grant any application as serious as one for sanctions under Rule 11 which has not been presented to the Court as a separate motion. Federal Rule of Civil Procedure 7(b)(1), in fact, requires any ‘request for a court order’ to be ‘made by motion.’ A response to a motion is not a motion.”).

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Citator

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  • Dragon Jade Int'l, Ltd v. Ultroid, LLC, 2009 WL 210723 (M.D. Fla. 2019)
    …Ultroid to which Plaintiff is entitled”; and “exclude the affidavit of Ultroid’s patent attorney.” (Id. at pp. 2-3). These requests are inappropriate in the context of a reply. See Armington v. Dolgencorp, Inc., No. 3:07-CV-1130-J-JRK, 2009 WL 210723, at *2 (M.D. Fla. Jan. 20, 2009) (“It is not appropriate to seek an order for affirmative relief in a response to a motion”).1 Accordingly, the Motion (Dkt. 146) is GRANTED to the extent that Dragon Jade’s Reply (Dkt. 145) is STRICKEN. All future re…
  • Ligieri v. Amazon.com, Inc. (M.D. Fla. 2026)
    …Doc. No. 29, at 12 n.5, the request is denied for two reasons. First, “[i]t is not appropriate to seek an order for affirmative relief in a response to a motion.” See Armington v. Dolgencorp. Inc., No. 3:07-cv-1130-J-JRK, 2009 WL 210723, at *2 (M.D. Fla. Jan. 20, 2009). Second, the motion to transfer (Doc. No. 8) remains pending before the presiding District Judge, and the undersigned declines to speak to its merits. Qo…
  • Wilshire Ins. Co. v. Airport Rest., LLC (M.D. Fla. 2024)
    …for this request, nor does it appear that such an objection is appropriate under Rule 45, but "[i]t [also] is not appropriate to seek an order for affirmative relief in a response to a motion." Armington v. Dolgencorp. Inc., No. 3:07-cv-1130-J-JRK, 2009 WL 210723, at *2 (M.D. Fla. Jan. 20, 2009). Second, it is clear from the motion, supplemental briefing, response, and now-stricken unauthorized reply, see Doc. Nos. 69-70, that the parties – in particular their counsel – are not engaging in professional, civ…

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