M-Heat Investors, LLC v. Jost (In re Micro-Heat, Inc.)

In re: MICRO-HEAT, INC., Debtor.M-HEAT INVESTORS, LLC, Plaintiff,

v.GARY JOST, et al., Defendants.

Case No. 08-65060

Adv. Pro. No. 12-4868

UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Signed on September 18, 2012

Chapter 7

Judge Thomas J. Tucker

ORDER REGARDING DEFENDANTS' MOTION TO DISMISS

Defendants have filed a motion to dismiss this adversary proceeding (Docket # 14, the "Motion"). The Motion seeks dismissal based on lack of subject matter jurisdiction, or alternatively, based on mandatory abstention under 28 U.S.C. § 1334(c)(2). Plaintiff filed a response to the Motion. Thereafter, on August 27, 2012, the Court entered a scheduling order regarding the Motion, which required Defendants to file any reply brief in support of their Motion no later than September 10, 2012, and scheduled a hearing on the Motion for September 19, 2012 at 10:00 a.m. (Docket # 20). On September 10, 2012, Defendants filed a reply brief.

In their reply brief, Defendants argued for the first time that if the Court determines that it has subject matter jurisdiction, and that this is a core proceeding, the Court should abstain based on the permissive abstention provision of 28 U.S.C. § 1334(c)(1).

The Court will not consider this argument in connection with the Motion, because this argument was raised for the first time in the Defendants' reply brief. It would not be fair or appropriate for the Court to consider this new argument, because Plaintiff did not have an opportunity to respond to it in writing, as part of Plaintiff's response to the Motion.

In Sim v. Piper, No. 07-14380, 2008 WL 3318746, at *4-5 (E.D. Mich. August 8, 2008), the court refused to consider arguments the defendant raised for the first time in his reply brief, and deemed such arguments waived. In doing so, the court relied on Sixth Circuit precedent:In United States v. Jerkins, 871 F.2d 598, 601 (6th Cir.1989), the Sixth Circuit declined to address an issue not raised in the original brief, stating:

" 'It is impermissible to mention an issue for the first time in a reply brief because the appellee then has no opportunity to respond.' Knighten v. Commissioner, 702 F.2d 59, 60 n. 1 (5th Cir.), cert. denied, 464 U.S. 897, 104 S.Ct. 249, 78 L.Ed.2d 237 (1983). '[C]ourt decisions have made it clear that the appellant cannot raise new issues in a reply brief; he can only respond to arguments raised for the first time in appellee's brief.' 16 C. Wright, A. Miller, E. Cooper, & E. Grossman, Federal Practice and Procedure § 3974 at 428 (1977). Accordingly, we will not address this issue."

In Hunt v. Big Lots Stores, Inc., 244 F.R.D. 394, 397 (N.D.Ohio, 2007), the court, quoting Irwin Seating Co. v. International Business Machines Corp., 2007 WL 518866, *2 (W.D.Mich.), noted long-standing precedent in the Sixth Circuit regarding waiver of issues raised for the first time in reply briefs:

"[T]he Sixth Circuit repeatedly has recognized that arguments raised for the first time in a party's reply brief are waived. See United States v. Lopez-Medina, 461 F.3d 724, 743 (6th Cir.2006) (citing McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997) (deeming arguments that are not raised in the appellant's main brief, or raised merely in a perfunctory manner, as waived)); see also Lexicon, Inc. v. Safeco Ins. Co. of America, Inc., 436 F.3d 662, 676 (6th Cir.2006) (a district court properly declines to consider an issue raised for the first time in a reply brief) (citing, Sundberg v. Keller Ladder, 189 F.Supp.2d 671, 682-83 (E.D.Mich.2002) (noting, in the context of summary judgment, "it is not the office of a reply brief to raise issues for the first time") (citation omitted))."

See also United States v. Redcorn, 528 F.3d 727, 738, fn. 4 (8th Cir.2008) (issues not raised in the opening brief are deemed waived); Caldwell v. Jones, 513 F.Supp.2d 1000, 1012

(N.D.Ind.2007) (argument raised for first time in reply brief is waived); EEOC v. Caterpillar, Inc., 503 F.Supp.2d 995, 1007 (N.D.Ill.2007), citing United States v. Adamson, 441 F.3d 513, 521 (7th Cir.2006) ("arguments raised for first time in reply brief are waived").

Thus, the additional issues raised for the first time in Defendant's reply brief are not properly before

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