Indiana Court of Appeals Reminds that Reply Briefs are Permissible in Summary Judgment

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by: Colin E. Flora

     Much like our last post, this week we look at technical procedural issue of Indiana summary judgment procedure that many might have wondered about. Summary judgment is governed in Indiana courts by Trial Rule 56. Although modeled on Rule 56 of the Federal Rules of Civil Procedure, Trial Rule 56 differs in some substantial ways. We have previously discussed how the standard applied in federal courts differs substantially from that applied in state courts. But even the text of the rule itself contains meaningful differences.

     For the purposes of today's discussion, the most meaningful difference is the procedural dictates of subdivision (C). Trial Rule 56(C) states that “[a]n adverse party shall have thirty (30) days after service of the [summary judgment] motion to serve a response and any opposing affidavits.” Federal Rule 56(c) does not address either the propriety of a response or the deadline to respond. Instead, in federal courts, the matter is left to local rules. The local rules of the United States District Court for the Northern District of Indiana dictate that a response from the party resisting the motion must be filed within twenty-eight days and a reply by the moving party fourteen days after the response is filed. The Southern District of Indiana’s local rules include the same timing.

     So Indiana’s rule gives you thirty days and the federal courts twenty-eight, why does that merit a blog post? Well that is not the meaningful distinction. The distinction is that in establishing a deadline for filing a response, Trial Rule 56(C) makes no mention of timing or permissibility of filing a reply. And that issue was addressed, this past week, by Court of Appeals of Indiana in Jacks v. Tipton Community School Corporation.

     There, the defendant school corporation filed a motion to dismiss. The Jacks Family timely responded. And the school corporation filed a reply and supplemental designation of evidence. Contending that Trial Rule 56 provides no basis for filing a reply, the Jacks Family moved to strike the reply and supplemental designation. The trial court denied the motion and granted summary judgment to the school corporation. The Jacks family appealed.

     On appeal, the court had to address the silence in the Trial Rule. In doing so, the court turned to guidance from subdivision (E) of the rule and to two prior appellate decisions. Under subdivision (E), “The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.” That there is a provision for supplementing evidence strongly suggests a framework for doing so. But, then, the question is whether that framework is merely to place supplemental evidence into the record or whether it may be accompanied by argument in the form of a reply brief.

     For that point, the court first turned to its 2001 decision Spudich v. NIPSCO:

There, NIPSCO filed a motion for summary judgment, Spudich filed a response, and NIPSCO then filed a reply brief with the trial court’s permission. Spudich filed a motion to strike the reply, which the trial court denied. On appeal, Spudich argued that Trial Rule 56 did not “specifically provide for the filing of reply briefs on summary judgment” and that a local rule allowing reply briefs conflicted with Trial Rule 56. We noted that Trial Rule 56 “neither expressly permits nor precludes such a reply brief.” The Rule does, however, “provide for affidavits submitted in support or in opposition to summary judgment to be supplemented or opposed by depositions, answers to interrogatories, and further affidavits.” Thus, the submission of additional evidence after the initial filings is contemplated by the Rule. We noted that the “practice of filing a reply brief on summary judgment was not unique” to that county and concluded that the local rule was not “incompatible” with Rule 56. Consequently, we concluded that the local rule was not invalid. We also held that NIPSCO was allowed to include additional designations of evidence with the reply brief and arguments not made in its original motion.

     A decade later, the court once more confronted the argument in Auto-Owners Insurance Co. v. Benko. The only meaningful differences in Benko were that the movant did not file a reply, instead “supplement[ing] her designation of evidence[,]” and did so “without obtaining permission from the trial court.” And, unlike federal practice, there was no corresponding local rule addressing replies or supplemental designations. But, finding guidance in Spurdich, the Court of Appeals again affirmed the trial court’s denial of a motion to strike.

     From that guidance, the Jacks court again affirmed denial of a motion to strike, and stated, “Trial Rule 56 does not prohibit reply briefs and specifically allows the designated evidence to be supplemented.”

     Unlike Indiana’s two federal courts, many county courts do not have local rules that address summary judgment at all. Jacks came from Tipton County, whose local rules are silent. Similarly, of the five largest counties in the state––Marion, Lake, Allen, Hamilton, and St. Joseph––only the local rules of Lake and St. Joseph address reply briefs for summary judgment. But, in my experience, it is universally accepted that reply briefs are appropriate in Marion and Hamilton. I do not have enough experience to comment on Allen.

     Join us again next time for further discussion of developments in the law.

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*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.