IN THE UNITED STATES DISTRICT COURT FOR THE … · ... Defendants’ Reply specifically urges the Court to take judicial notice of a certain ... for opposition by Plaintiffs ... Plaintiffs

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

COPE (a.k.a. CITIZENS FOR OBJECTIVE, ) PUBLIC EDUCATION, INC.), et al., ) )

Plaintiffs, ) v. ) Case. No. 13-CV-4119-KHV- JPO ) KANSAS STATE BOARD OF ) EDUCATION, et al., ) )

Defendants. )

PLAINTIFFS' MEMORANDUM IN SUPPORT OF THEIR D. KAN. RULE 15.1(A) MOTION TO FILE A SURREPLY TO DEFENDANTS'

REPLY IN SUPPORT OF THEIR MOTION TO DISMISS COME NOW, all Plaintiffs, by and through their undersigned counsel, and pursuant to D.

Kan. Rule 15.1(a), suggest to the Court as follows:

1. Concise Statement of the Leave sought: The attached Plaintiffs’ Surreply to Defendants' Reply in Support of their Motion to

Dismiss is necessary and will be helpful to the Court in Ruling on the Defendants’ Motion to

Dismiss.

Though surreplies are only allowed with leave of court, a court will grant leave to file a

surreply “where a movant improperly raises new arguments in a reply.” King v. Knoll, 399

F.Supp.2d 1169, 1173-74 (D.Kan.2005), quoting McShares, Inc. v. Barry, 979 F.Supp. 1338,

1341 (D.Kan.1997) (quoting E.E.O.C. v. Int'l Paper Co., No. 91–2017, 1992 WL 370850, at *10

(D.Kan. Oct.28, 1992)).

Courts liberally construe motions for leave to file a surreply in favor of granting them.

See, e.g., King, at 1174; Robinson v. Farmers Services L.L.C., No. 10-cv-02244, 2010 WL

Case 5:13-cv-04119-KHV-JPO Document 43 Filed 05/06/14 Page 1 of 5

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4067180 (D.Kan. Oct. 15, 2010); Henderson v. International Union, No. 00-2575, 2003 WL

1607798, at *1-2 (D.Kan. Mar. 18, 2003).

For example, in King, the court granted plaintiff leave to file its surreply when plaintiff

argued that defendants’ reply improperly raised the issue of authentication of documents. King,

399 F.Supp.2d at 1174. Though the court found that defendant’s reply actually argued that

plaintiff failed to properly authenticate documents, and recognizing the defendant’s new

argument was not the usual type justifying a surreply, the court nevertheless liberally construed

plaintiff’s arguments and granted plaintiff’s motion for leave to file a surreply. Id.

In Robinson, the court acknowledged that “the defendant did not raise a new argument in

its reply. Nevertheless, the court construe’s the plaintiff’s pleadings liberally and will grant

plaintiff’s Motion for Leave to File a Surreply.” Robinson, 2010 WL 4067180, at *2.

In Henderson, the plaintiff filed motions to file a surreply to defendants’ separate motions

for summary judgment. Henderson, 2003 WL 1607798, at *1. For plaintiff’s first motion, the

court noted that the essence of plaintiff’s surreply was merely additional argument that summary

judgment should be denied. Id. Though the court admitted it was already well aware of

plaintiff’s arguments, “in an abundance of caution,” the court granted plaintiff leave to file her

surreply. Id. at *2. Likewise, for the second motion, although the court noted that plaintiff

sought leave to file a surreply to respond to new arguments, but failed to identify the “new

arguments,” and sought leave to “clarify her evidentiary support,” the court nonetheless liberally

granted plaintiff the requested leave. Id.

Here, Plaintiff’s Surreply is necessary as it objects to the Defendants bringing into the

record new issues and arguments in their Reply. Those issues are the meeting minutes of a June

11, 2013 Kansas Board of Education meeting (Defs.’ Reply (Doc. #41) at 8 and 14), a related


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June 11, 2012 [sic] Kansas Board of Education Meeting Media Streaming video (Defs.’ Reply

(Doc. #41) at 14). In addition, Defendants’ Reply specifically urges the Court to take judicial

notice of a certain Report and Recommendation of the Next Generation Science Standards

Review Committee (“R&R”). Defs.’ Reply (Doc. #41) at 14. Plaintiffs do not have access to the

minutes, video and other materials, and therefore Plaintiffs have not had an opportunity to check

them for accuracy and completeness due to the moratorium on discovery.

The Surreply also identifies fundamentally important errors in Defendants' arguments.

For example, the Defendants’ argument is based entirely on a refusal to accept the truth of the

well plead factual allegations of the Complaint and no showing that any of those allegations are

implausible. Assuming the truth of the Plaintiffs’ factual allegations, which this Court must,

Defendants' motion lacks any factual or legal basis that would entitle it to have the Complaint

summarily dismissed.

Defendants' Reply also alleges in many instances that certain statements in the Policy

belie the allegations in the Complaint. The problem is that the statements Defendants rely on are

themselves alleged by the Complaint to be false or misleading. Since those allegations of

deception must be taken to be true, the statements Defendants rely on for their motion must be

assumed to be false or misleading. Given the assumed truth that the statements Defendants rely

on are false, Defendants’ arguments amount to nothing more than discredited conjecture.

Finally, Defendants’ Response raises the new argument that through Plaintiffs’ Response,

Plaintiffs have changed their theory of injury from the theory they asserted in their Complaint.

Defendants argue that the theory of injury indicates both a lack of standing and a failure to state a

claim. If the theory of injury was revised by Plaintiffs in their Response, as newly argued by

Defendants’ Reply, logically there has been no opportunity for opposition by Plaintiffs to


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Defendants’ new argument. Therefore, Plaintiffs’ requested leave should be granted so that

Plaintiffs have the fair opportunity to address Defendants’ new arguments.

For the entirety of the foregoing reasons, Plaintiffs respectfully urge the Court to grant

Plaintiffs' leave to file the attached Surreply to Defendants' Reply.

2. Attach the proposed pleading: The proposed PLAINTIFFS’ SURREPLY TO DEFENDANTS' REPLY IN SUPPORT

OF THEIR MOTION TO DISMISS is attached hereto and incorporated by this reference as

Exhibit “A”.

3. Compliance with Other Rules of D. Kan. Rule 7.1: Plaintiffs submit that their proposed PLAINTIFFS' SURREPLY TO DEFENDANTS'

REPLY IN SUPPORT OF THEIR MOTION TO DISMISS is compliant with D. Kan. Rule 7.1

Accordingly, Plaintiffs request leave of Court to file their attached Exhibit “A”,

Plaintiffs’ Surreply to Defendants’ Reply in Support of their Motion to Dismiss.

Respectfully submitted, s/ Douglas J. Patterson Douglas J. Patterson, Esq. (KS # 17296) Kellie K. Warren, Esq. (KS #16733) Michelle W. Burns, Esq. (KS #21167) PROPERTY LAW FIRM, LLC 4630 W. 137th St., Suite 100 Leawood, Kansas 66224 913-663-1300 Telephone [email protected] [email protected] [email protected]


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s/ John H. Calvert John H. Calvert, Esq. (MO #20238) CALVERT LAW OFFICES 2300 Main St., Suite 900 Kansas City, MO 64108 816-797-2869 Telephone 816-448-3703 816-448-3101 Facsimile [email protected] s/ Kevin T. Snider Kevin T. Snider, Esq. (CALIF#170988) PACIFIC JUSTICE INSTITUTE P.O. Box 276600 Sacramento, California 95827-6600 (916) 857-6900 Telephone (916) 857-6902 Facsimile [email protected] ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

This is to certify that on this 6th day of May, 2014, the above and foregoing document was electronically filed with the Clerk of the Court by using the CM/ECF system with notice electronically sent to: Jeffrey A. Chanay [email protected] Cheryl L. Whelan [email protected] Stephen O. Phillips [email protected] ATTORNEYS FOR DEFENDANTS s/ Douglas J. Patterson Douglas J. Patterson


Case 5:13-cv-04119-KHV-JPO Document 43-1 Filed 05/06/14 Page 1 of 23























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IN THE UNITED STATES DISTRICT COURT FOR THE … · ... Defendants’ Reply specifically urges the Court to take judicial notice of a certain ... for opposition by Plaintiffs ... Plaintiffs