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Gendron v. Montana University System

Supreme Court of Montana

July 16, 2019

WHITNEY ERIN GENDRON, individually and on behalf of all others similarly situated, Plaintiff and Appellant,
v.
MONTANA UNIVERSITY SYSTEM, JOHN DOE DEFENDANTS 1-100, and JOHN DOE DEFENDANTS 101-150, Defendants and Appellees.

          ORDER

         Erik B. 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.

         Aside 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.

         As to 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."

         The 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).

         Since 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.

         As 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 Procedure.

         THEREFORE, IT IS ORDERED that Erik B. Thueson's Motion is DENIED.

         The Clerk is directed to give notice of this Order to ...


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