In H-W Technology v. Overstock.com, defendant filed a motion for requesting exception case finding and an award of attorney’s fees. Judge Ramirez recommended the denial of this motion (decision available here). Judge Ramirez’s decision contains a good discussion of the exceptional case law post-Octane, and the law governing requests for sanctions under 28 U.S.C. § 1927 and the Court’s inherent authority.
Of interest is also Judge Ramirez’s discussion of when sur-replies should be allowed:
The purpose of filing a reply “is to give the movant the final opportunity to be heard, and to rebut the nonmovants’ response, thereby persuading the court that the movant is entitled to the relief requested by the motion.” Info–Power Int’l, Inc. v. Coldwater Tech., Inc., No. 3:07–CV–0937–P, 2008 WL 5552245, at *8 (N.D. Tex. Dec.31, 2008) (citation and internal quotation marks omitted). For this reason, “a court generally will not consider arguments raised for the first time in a reply brief.” Pennsylvania Gen. Ins. Co. v. Story, No. CIV.A.3:03–CV–0330–G, 2003 WL 21435511, at *1 (N.D. Tex. June 10, 2003) (citations omitted). An exception may be made, however, and leave to file a sur-reply may be granted, to allow the “nonmovants . . . a chance to respond” to the movant’s newly-asserted theories or evidence. See id. Leave to file a sur-reply is unwarranted, however, where the proposed sur-reply merely restates the arguments made in the party’s initial response. See, e.g., Williams v. Aviall Serv. Inc., 76 F. App’x 534, 535 (5th Cir. 2003) (affirming denial of motion for leave to file a sur-reply because it did not include additional arguments or evidence).
Here, Plaintiff has not shown any justification for a sur-reply. Defendant’s alleged assertion of inaccurate facts does not amount to new evidence. See Branton v. City of Dallas, No. Civ.A:3:97-CV-0245-P, 1999 WL 765646 (N.D. Tex. Sept. 23, 1999) (denying motion for leave to file a surreply correcting inaccuracies in the reply, finding “that no justification for the filing of materials outside the normal course of briefing has been shown.”) rev’d on other grounds, Branton v. City of Dallas, 272 F.3d 730 (5th Cir. 2001).