Litigation

What is the Procedure For Supplementing a Summary Judgment Response After the Reply is Filed but Before the 14-Day Limit?

By H. William Allen et al.

The Arkansas Court of Appeals affirmed summary judgment in Neal v. Farris, No. 07-839 (2/27/08). his case concerns a dispute about summary judgment procedure. As we all know, the nonmovant has 21 days to respond, and then the movant has 14 days to file a reply. See Ark. R. Civ. P. 56(c)(1). Later, the rule says, "No party shall submit supplemental supporting materials after the time for serving a reply." Id.

Farris moved for summary judgment. Neal received two extensions and then timely filed the response. Farris filed his reply 3 days later, and the trial court granted summary judgment 6 days later. Five days later (11 days since the response was filed), Neal tried to file a supplemental response with new evidence. Farris appealed, arguing the quoted language above means both parties have up to 14 days after the response is filed to submit supplemental materials, regardless of when the reply is actually filed.

The court of appeals skirted the issue. Following the supreme court's analysis in Southeastern Distributing Co. v. Miller Brewing Co., 366 Ark. 560 (2006), the court focused on Neal's extensions. The court felt that, with two extensions, Neal had plenty of time to supplement her response. These cases are unsatisfying; the courts need to declare whether or not filing the reply cuts off the time to submit supplemental materials or not.

Full post as published by Arkansas Business Litigation Blog on February 28, 2008 (boomark / email).