Spina v. Maricopa Cty Trans, et al

Filing 124

ORDER denying 119 Motion for Leave to File Surrely FURTHER ORDERED striking Plaintiffs Surreply and Supplemental Statement of Facts 119 , 120 . Signed by Judge Stephen M McNamee on 3/31/09.(MAP)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dalia Spina,

Plaintiff, v.
Maricopa County Department of Transportation, , a Political Subdivision of Maricopa County,

Defendant.

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No. CV 05-0712- PHX-SMM ORDER

Before the Court is Plaintiff's Motion for Leave to File Surreply RE: Defendant's Motion for Summary Judgment (Doc. 119). Upon consideration of the arguments of the parties, the Court makes the following ruling. Neither Federal Rule of Civil Procedure 7 nor the local rules of practice for this District provide for the filing of a surreply, and surreplies are not authorized by any other rules of procedure absent express prior leave of the Court. By filing its Surreply and Motion to File Surreply as one document, Plaintiff has essentially filed a Surreply without first obtaining leave of this Court to do so. Plaintiff's Surreply was, therefore, improper. Furthermore, Plaintiff's Motion for Leave to File Surreply fails to offer a justifiable reason upon which the Court might grant the leave requested. Plaintiff argues that Defendant raised a new argument in the Reply: whether Plaintiff has evidence to show that the alleged retaliatory termination was carried out pursuant to a policy or

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custom as required by Monell v. Dept. of Soc. Services of City of New York, 436 U.S. 658 (1978). However, this argument was raised in response to Plaintiff's Response. In her Response to Defendant's Motion for Summary Judgment, Plaintiff argued that she had established a prima facie case on each of her claims against Defendant, including her section 1983 claim. While Plaintiff did not refer to section 1983 in her Response per se, she argued that she had shown the required elements for a First Amendment retaliation claim, pled in her complaint as a section 1983 claim. Defendant sought to refute that claim by pointing out that Plaintiff presented no evidence of an unconstitutional municipal policy, which was her burden to do. Plaintiff will not now be afforded the opportunity to submit a supplemental pleading, as Defendant did not raise a new and material point in its Reply. As such, Defendant's Motion for Summary Judgment is now fully briefed, and ready for the Court's review. Accordingly, IT IS HEREBY ORDERED DENYING Plaintiff's Motion for Leave to File a Surreply (Doc. 119). IT IS FURTHER ORDERED striking Plaintiff's Surreply and Supplemental Statement of Facts (Docs. 119-120). DATED this 31st day of March, 2009.

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