Case 1:22-cv-02246-JPH-MKK Document 275 Filed 04/12/24 Page 1 of 4 PageID #: 3464

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

)
RENEE GABET and
)
ANNIE OAKLEY ENTERPRISES, INC.,
)
) No. 1:22-cv-02246-JPH-MKK
Plaintiffs,
)
)
-vs.-
)
)
AMAZON.COM, INC., and
)
JOHN DOES 1-50,
)
)
Defendants.
)

AMAZON.COM, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION

FOR LEAVE TO FILE A SURREPLY IN OPPOSITION TO
AMAZON’S MOTION DETAILING FEES AND COSTS (DKT. 233)

The more plaintiffs multiply the proceedings about Amazon’s entitlement to recover its

expenses in opposing plaintiffs’ earlier unsuccessful discovery motion, the more expenses the

Court should award. The Court should award Amazon an additional $1,000 beyond the $30,342.25

in awardable expenses already requested by Amazon. This additional $1,000 is to compensate

Amazon for preparing and filing this latest brief, which opposes plaintiffs’ belated and frivolous

motion for leave to file a surreply. Plaintiffs’ proposed surreply repeats arguments they already

made and makes new arguments plaintiffs could have made earlier but failed to timely make.

Surreplies are not mulligans. Nor may a party permissibly wait two weeks to seek to file a surreply,

when the rules permit only one week to file a reply. See Local Rule 7-1(c)(3)(B). The Court should

deny plaintiffs’ motion and award Amazon its fees for opposing it.

Earlier in this action, the Court held that “[a] surreply is allowed only in the limited

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circumstances, and with the limited purpose, to address new arguments or evidence raised in the

reply brief.” (Dkt. 99.) An argument in a reply brief that responds to an argument made in the

response brief is “not ‘new,’ but rather … [an] attempt[] to rebut [a] Plaintiff’s responses to their

initial motion.” Upchurch v. Indiana, No. 1:19-CV-04644-SEB-MG, 2023 WL 1447898, at *2

(S.D. Ind. Feb. 1, 2023) (striking portions of the plaintiff’s surreply); see also Best v. Safford, No.

1:16-cv-02549-TWP-MJD, 2018 WL 1794911, at *2 (S.D. Ind. Apr. 16, 2018) (noting “the

‘purpose for having a motion, response, and reply is to give the movant the final opportunity to be

heard and to rebut the non-movant’s response”). The Court should enforce its standard for when

to permit surreplies and deny plaintiffs’ motion because it does not come close to satisfying the

standard.

First, plaintiffs allege that Amazon made “new” arguments “relating to whether it complied

with Local Rule 7-1(g)(1)(A) and whether its time records were limited to only those for time

‘opposing’ Plaintiffs’ Motion for Protective Order.” (Dkt. 274 at 1.) In reality, Amazon’s reply

responded directly to arguments made in plaintiffs’ two response briefs. One response brief argued

that Amazon violated Local Rule 7-1(g)(1)(A). (Dkt. 257 at 12–13.) The other response brief

argued that Amazon “seeks more” than its reasonable expenses incurred opposing plaintiffs’

unsuccessful motion for protective order. (Dkt. 258 at 5–6.) Amazon’s reply brief merely

responded to those two arguments. Thus, they were “not ‘new,’ but rather were attempts to rebut

[p]laintiff[s’] responses to their initial motion.” Upchurch, 2023 WL 1447898, at *2. Amazon’s

arguments do not trigger the strict standard for permitting a surreply. Id.

Second, plaintiffs allege that Amazon included “new” arguments that “pertain to whether

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it should be entitled to an award of attorney’s fees at all.”1 (Dkt. 274 at 1.) But plaintiffs

acknowledge in their proposed surreply that Amazon’s arguments were “regarding the Response

to the Show Cause Order.” (Dkt. 274-1 at 2 (citing Dkt. 257).) Amazon’s reply brief argument

merely rebutted arguments made by plaintiffs in their response. They were not new and do not

trigger the strict standard for permitting a surreply. Upchurch, 2023 WL 1447898, at *2.

Third, plaintiffs’ proposed surreply makes an argument about time entry evidence Amazon

submitted with its opening brief. (Dkt. 274-1 at 3.) As this Court has noted, a surreply may be

justified to rebut new arguments or evidence raised for the first time in a reply brief. (Dkt. 99.) But

the standard does not extend to addressing old evidence previously introduced in an opening brief.

Fourth, plaintiffs’ proposed surreply makes an argument about a misrepresentation they

made in one of their response briefs. (Dkt. 274-1 at 4 (arguing misrepresentation is a “typo”).)

Again, a surreply is permitted only to rebut new arguments and evidence made by the other party

in reply. This standard does not include permitting a party to file a surreply that tries to explain

away its own misrepresentations.

Fifth, plaintiffs contend that Amazon’s reply “embeds a new motion for more attorney’s

fees,” specifically fees incurred in the course of attempting to recover fees. (Dkt. 274 at 2.) Amazon

has not made a new argument in reply (and further motion practice would be inefficient).

Amazon’s initial motion argued Amazon was entitled to recover fees expended in protracted fees

litigation and cited numerous cases in support. (Dkt. 234 at 8 n.1.) Plaintiffs had the opportunity

to rebut this argument in their two response briefs but chose not to do so.

Plaintiffs have again multiplied the proceedings. Again, plaintiffs have forced Amazon to

1
Plaintiffs also “contend that Amazon waived those arguments.” (Dkt. 274 at 1–2.) To the extent
the Court permits plaintiffs’ surreply on this point, Amazon will seek to address it through further
briefing.

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incur expenses unnecessarily. This additional expense should be added to Amazon’s fee award.

Amazon requests the Court award $1,000 in additional expenses (for a total of $31,342.25), which

is less than the reasonable expense of preparing this brief. (Declaration of Caroline L. Desmond,

¶¶ 3–4.) For the foregoing reasons, the Court should deny plaintiffs’ motion for leave to file a

surreply and award Amazon its reasonable expenses in opposing it.

April 12, 2024 Respectfully submitted,

/s/ Caroline L. Desmond

Robert T. Cruzen (Admitted pro hac vice)
Klaus H. Hamm (Admitted pro hac vice)
Caroline L. Desmond (Admitted pro hac vice)
KLARQUIST SPARKMAN, LLP
121 S.W. Salmon Street, Suite 1600
Portland, OR 97204
Telephone: (503) 595-5300
Fax: (503) 595-5301
rob.cruzen@klarquist.com
klaus.hamm@klarquist.com
caroline.desmond@klarquist.com

Counsel for Defendant

AMAZON.COM, INC.

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