Judge Biggers has entered an order on Zach Scruggs’s motion to file a sur-reply brief. I’ll do no more than observe that I sure wondered about the local rule limiting the number of pages for briefs, and that I’m certainly surprised to read that the hearing might not be over.
Here’s what Judge Biggers wrote:
The court directs the parties attention to Local Uniform Civil Rule 7 and Uniform Local Criminal Rule 47, which limits the memorandum briefs of both parties to thirty-five pages without prior leave of court. Neither party has complied with this rule in relation to the Government’s Motion to Dismiss, as the Government’s Motion and Rebuttal memorandums are a combined 83 pages, and the Petitioner’s Response memorandum is 74 pages (and was submitted with a separate fifteen page bench memorandum). Nevertheless, in this instance, the court will allow and accepts the Petitioner’s sur-reply, which is contained within the motion filed June 21, 2011 (D.E. 393).
The court also notes that Petitioner’s Response criticizes the Government for failing to call witnesses and put on evidence during the evidentiary hearing held May 23-25, 2011. The Government’s Rebuttal states that the court ended the evidentiary hearing after the Petitioner rested his case and that the court did not permit the Government to call its witnesses. When the Government made its motion to dismiss during the evidentiary hearing and provided the court with its brief, the impression taken by the court was that the Government was resting its case and the 46-page brief passed to the bench was a proposed finding of facts and conclusions of law brief as is usually submitted at the end of a non-jury trial. It was not the court’s intention to prevent the Government from putting on its case. The undersigned judge retired to chambers from the courtroom, and the Government could have merely brought the matter to the court’s attention and requested to put on its witnesses. If the Government wants to put on the few witnesses it had assembled that day, the court will resume the hearing to allow the Government to put on those witnesses. The Government must notify the court of its desire to put on these witnesses within five days of the filing of this order. Otherwise, the record will remain completed as it stands.
Here’s the order.