United States District Court for the Western District of Louisiana, Shreveport Division
In this asbestos action, plaintiff Reginald Short alleged asbestos exposure from, among other things, asbestos-containing shipping barrels and other related products. The plaintiff initiated litigation by filing a complaint naming National Technology and Engineering Solutions of Sandia, LLC (“NTESS”) and others as defendants. NTESS ultimately filed a motion for summary judgment upon conclusion of discovery, primarily arguing the plaintiff lacked evidence to support his claims and, instead, relied on NTESS’ own evidentiary submissions to show the absence of a genuine issue of material fact. The plaintiff opposed NTESS’ motion for summary judgment. NTESS subsequently filed a reply which raised – for the first time – additional argument concerning the inadequacy of the plaintiff’s lay and expert testimony in support of his claims against NTESS. Oral argument was ultimately held concerning the pending motion for summary judgment.
Under Fed. R. Civ. P. 56, summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, demonstrate no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The facts are to be viewed in the light most favorable to the non-moving party. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-289 (1968). When the moving party has carried its burden, the non-moving party must establish that there is a genuine issue of a material fact to prevent summary judgment from being granted. Id. However, the moving party cannot raise arguments for the first time in a reply brief to demonstrate summary judgment is proper based upon all evidence within the record. See Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010) (citing United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005)); Iteld, Bernstein & Associates, LLC v. Hanover Ins. Group, Civ. A. No. 06-3418, 2009 WL 2496552, at *4 (E.D. La. Aug. 12, 2009) (Vance, J.) (“[A]rguments raised for the first time in a Reply brief are waived.”). See, Little Tchefuncte River Association v. Artesian Utility Company, Inc., 155 F. Supp. 3d 637, 657 (E.D. La. 2015) (“[A]rguments cannot be raised for the first time in a reply brief.”) (quoting Benefit Recovery, Inc. v. Donelon, 521 F.3d 326, 329 (5th Cir. 2008)).
Here, the Federal Court found NTESS, as the movant, failed to meet its initial burden to support its motion with competent summary judgment evidence. The court also held the additional arguments raised by NTESS, for the first time, in its reply to the plaintiff’s opposition were untimely and improper, as they denied the plaintiff with a fair opportunity to respond. Id. To the extent NTESS intends to challenge the sufficiency of the plaintiff’s testimony or other evidence to support his claims, then NTESS may do so in a procedurally proper manner, which will afford the plaintiff with an adequate opportunity to respond.
Read the full decision here.
