Filed: Jul. 08, 2014
Latest Update: Jul. 08, 2014
Summary: ORDER KENNETH J. GONZALES, District Judge. This matter comes before the Court on Defendant's Motion for Summary Judgment and Supporting Memorandum Brief. (Doc. 45). Plaintiff filed a response, and Defendant filed a reply. (Docs. 54, 55). In Plaintiff's response, Plaintiff cites to his deposition in which he recalls a conversation that he had with Abad Valdez. Plaintiff's deposition testimony is as follows: I was approached by Abad Valdez, who was the Axcelis C4 engineer main time frame of 201
Summary: ORDER KENNETH J. GONZALES, District Judge. This matter comes before the Court on Defendant's Motion for Summary Judgment and Supporting Memorandum Brief. (Doc. 45). Plaintiff filed a response, and Defendant filed a reply. (Docs. 54, 55). In Plaintiff's response, Plaintiff cites to his deposition in which he recalls a conversation that he had with Abad Valdez. Plaintiff's deposition testimony is as follows: I was approached by Abad Valdez, who was the Axcelis C4 engineer main time frame of 2010..
More
ORDER
KENNETH J. GONZALES, District Judge.
This matter comes before the Court on Defendant's Motion for Summary Judgment and Supporting Memorandum Brief. (Doc. 45). Plaintiff filed a response, and Defendant filed a reply. (Docs. 54, 55). In Plaintiff's response, Plaintiff cites to his deposition in which he recalls a conversation that he had with Abad Valdez. Plaintiff's deposition testimony is as follows:
I was approached by Abad Valdez, who was the Axcelis C4 engineer main time frame of 2010, and through — through conversation about my illness, he said "We should have had you wear a OSHA mask to protect you from lead." And I said, "There's lead in those tools?" And he said, "Yeah."
(Doc. 54-1) at 4 (depo. at 68). In Defendant's reply, Defendant argues for the first time that Valdez's statements to Plaintiff are inadmissible hearsay.
The Tenth Circuit Court of Appeals has held that, when a district court accepts a reply brief from a movant that contains new material or argument, the court must either: (1) permit a surreply from the nonmovant, or (2) refrain from relying on the new material or argument in ruling on the motion. See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998). Because Defendant argues that Valdez's statements are hearsay in its reply for the first time, the Court sua sponte permits Plaintiff to file a surreply, on or before July 11, 2014, in order to address whether Valdez's abovementioned statements fall within an exception to the hearsay rule. See Callies v. Lane, 2013 WL 5781147 (D. Colo.) (court sua sponte allowed party to file surreply).
IT IS THEREFORE ORDERED that on or before July 11, 2014, Plaintiff may file a surreply limited to discussion of whether Valdez's statements to Plaintiff fall within an exception
