WHITNEY ERIN GENDRON, individually and on behalf of all others similarly situated, Plaintiff and Appellant,
MONTANA UNIVERSITY SYSTEM, JOHN DOE DEFENDANTS 1-100, and JOHN DOE DEFENDANTS 101-150, Defendants and Appellees.
Thueson, one of Appellant's class counsel, has moved this
Court for leave to file a separate reply brief and for
additional relief. Pertinent to his motion, Thueson alleges
he drafted Appellant's Opening Brief and sent his draft
to Hillary Prugh Carls, another of Appellant's class
counsel, for her review. He further alleges Carls made
significant revisions to the Opening Briefs Statement of
Facts, removed an issue and argument Thueson made regarding
the lower court's calculation of his attorney fees, and
filed her revised version of the Opening Brief without
Thueson's knowledge or consent. Thueson now moves this
Court to: attribute the Statement of Facts in the Opening
Brief to Carls alone; consider Thueson's time estimates
in this matter separately from Carls's time estimates;
grant Thueson leave to file a Reply Brief separately from
Carls's Reply Brief;, and grant Thueson leave to
"file and reference" his draft version of the
Opening Brief. Appellee Montana University System (MUS)
opposes Thueson's motion.
from citing generally to the Rules of Professional
Responsibility and the Rules of Civil Procedure, Thueson
provides no authority for the relief he seeks, nor does he
explain how he believes the requested relief would affect the
outcome of this appeal. We do not see how separately
attributing the Statement of Facts to Carls would affect our
consideration of the Opening Brief, nor do we see how doing
so would affect our consideration of class counsels' time
estimates. Although he argues his draft version of the
Opening Brief "should be part of the record regardless
of whether this Court ultimately uses it to make its
decision," Thueson neither cites to authority nor offers
an explanation as to how he expects this Court to resolve any
differences between the draft and final versions of the
Opening Brief in deciding the issues on appeal.
Thueson's request to file a separate Reply Brief in order
to set forth the issue he alleges Carls removed from
Appellant's Opening Brief, as MUS explains in its
response, "If an issue is not identified in the Opening
Brief, it is not part of the appeal. . . . The dispute
between class counsel on the substance of their Opening Brief
should not translate into a situation where MUS has to guess
at what Thueson will argue, or have no opportunity to respond
to, his newly raised issue in the reply brief."
purpose of a reply brief is to respond to arguments raised in
a response brief. WLW Realty Partners, LLC v. Cont'l
Partners VIII, LLC, 2015 MT 312, ¶ 20, 381 Mont.
333, 360 P.3d 1112. M. R. App. P. 12(3) provides in part,
"The reply brief must be confined to new matter raised
in the brief of the appellee." We will not address the
merits of an issue presented for the first time in a reply
brief. State v. Makarchuk, 2009 MT 82, ¶ 19,
349 Mont. 507, 204 P.3d 1213 (citation omitted).
Denend v. Bradford Roofing & Insulation, 218
Mont. 505, 7lOP.2d6l (1985), this Court's practice has
been to refuse to address arguments improperly raised for the
first time in a reply brief. E.g., Makarchuk,
¶¶ 19-20; Pengra v. State, 2000 MT 291,
¶ 13, 302 Mont. 276, 14, P.3d 499; Loney v.
Milodragovich, Dale & Dye, P.C., 273 Mont. 506, 512,
905 P.2d 158, 162 (1995); Torres v. State, 273 Mont.
83, 89, 902 P.2d 999, 1003 (1995). Thus, even If Thueson were
to raise the issue he alleges Carls removed from the Opening
Brief in a Reply Brief, this newly-raised argument would not
be properly before the Court.
further pointed out by MUS, Thueson is not a party to this
action. Only parties- and, in some circumstances, amicus
curiae-may file appellate briefs. M. R. App. P. 12. This
Court will not create precedent allowing a party, represented
by numerous counsel, to have each counsel file a separate
brief setting forth that counsel's perspective. It is the
responsibility of co-counsel, in consultation with their
client, to work out their differences and submit a single
brief in compliance with the applicable Rules of Appellate
IT IS ORDERED that Erik B. Thueson's Motion is DENIED.
Clerk is directed to give notice of this Order to ...