`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`Civil Action No.12-cv-11758
`HON. GERSHWIN A. DRAIN
`
`EVERLIGHT ELECTRONICS CO., LTD.,
`and EMCORE CORPORATION,
`
`Plaintiffs/Counter-Defendants,
`
`v.
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`
`Defendants/Counter-Plaintiffs,
`
`v.
`
`EVERLIGHT AMERICAS, INC.,
`
`Defendant.
`____________________________________/
`
`ORDER GRANTING NICHIA’S MOTION FOR LEAVE TO FILE SUR-REPLY [#375]
`
`Presently before the Court is Nichia’s Motion for Leave to File Sur-Reply, filed on
`
`September 22, 2014. The motion is fully briefed and for the reasons that follow, the Court will grant
`
`Nichia’s motion.
`
`The filing of a sur-reply is appropriate when new evidence relevant to a party’s summary
`
`judgment motion becomes available after the completion of summary judgment briefing. Mauer v.
`
`Deloitte & Touche, LLP, 752 F.Supp. 2d 819, 824-25 (S.D. Ohio 2010); Nolan LLC c. TDC Int’l
`
`Corp., No. 06-14907, 2009 U.S. Dist. LEXIS 47445, *4-5 (E.D. Mich. Jun. 5, 2009). Additionally,
`
`Rule 56(c) precludes the consideration of new evidence and argument in a summary judgment reply
`
`brief without providing the non-moving party adequate opportunity to respond. Eng’g & Mfg.
`
`-1-
`
`
`
`4:12-cv-11758-GAD-MKM Doc # 390 Filed 11/05/14 Pg 2 of 2 Pg ID 33207
`
`Servs., LLC v. Ashton, 387 F. App’x 575, 583 (6th Cir. 2010); Seay v. Tenn. Valley Auth., 339 F.3d
`
`454, 480-82 (6th Cir. 2003).
`
`Here, Nichia has established good cause for granting its requested relief. Nichia should be
`
`permitted to bring the testimony of Mr. Bernd Kammerer, President and COO of Everlight Americas
`
`and CEO of Everlight Europe, to the attention of the Court because it is relevant to the issue of
`
`injunctive relief. The Court rejects Everlight’s arguments that Nichia had this evidence long before
`
`summary judgment briefing began and that Nichia has not been diligent in the prosecution of this
`
`case. Additionally, the Court agrees with Nichia that a sur-reply is required with respect to the
`
`issues concerning the terms “white” and “white light” and marking, given that Everlight raised new
`
`arguments and evidence in its reply brief, and not, typical “rebuttal evidence” as it claims.
`
`Accordingly, Nichia’s Motion for Leave to File Sur-Reply [#375] is GRANTED.
`
`SO ORDERED.
`
`Dated: November 5, 2014
`
`/s/Gershwin A Drain
`GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`
`-2-
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