In an R&R this week, Magistrate Judge Burke flatly declined to consider a "critical[]" argument raised for the first time in a reply brief:
In their reply brief, Defendants made one other argument, which they failed to raise in their opening brief . . . . (D.I. 37 at 9 (“Critically, neither of these manuals refer to the named defendants in this case[.]”)) Because this argument could have and should have been raised in the opening brief, it has been waived, and so the Court will not consider it here. See McKesson Automation, Inc. v. Swisslog Italia S.p.A., 840 F. Supp. 2d 801, 803 n.2 (D. Del. 2012); LG Display Co., Ltd. v. AU Optronics Corp., Civil Action Nos. 06-726-LPS, 07-357-LPS, 2010 WL 5463305, at *4 (D. Del. Dec. 29, 2010); see also D. Del. LR 7.1.3(c)(2).
TriDiNetworks Ltd. v. Signify North America Corp., C.A. No. 19-1063-CFC, at 9 n.6 (D. Del. June 1, 2020) (emphasis added).
It looks like this issue with the briefing may have been picked up sua sponte by the Court, because the docket shows no oral argument and no letters from the parties about it.
This practice—raising arguments for the first time in a reply—is addressed by LR 7.1.3: "[t]he party filing the opening brief shall not reserve material for the reply brief . . . ." This rule “exists, in part, to prevent litigants from engaging in impermissible 'sandbagging,' reserving crucial arguments for a reply brief to which an opponent cannot respond.” Fifth Mkt., Inc. v. CME Grp., Inc., C.A. No. 08-520-GMS, 2013 U.S. Dist. LEXIS 87334, at *3 n.2 (D. Del. June 19, 2013) (emphasis added).
It can be effective to flag sandbagging for the Court when it happens. There are many cases where the Court declined to consider arguments raised for the first time in a reply.
There has been at least one case where Judge Andrews ordered counsel "to explain why they should not have their pro hac vice status revoked for saving their better argument for the reply brief." Funai Electric Co., Ltd. v. Personalized Media Communications LLC, C.A. No. 15-558-RGA, D.I. 16 (D. Del. Nov. 6, 2015) (emphasis added).
And, if nothing else, it's also a potential ground for seeking leave to file a sur-reply brief.
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