Dutcher #067784 v. Ryan

Filing 107

ORDER - IT IS ORDERED granting the Motion to Strike (Doc. 99 ) and Joinder (Doc. [100)]. IT IS FURTHER ORDERED striking Plaintiff's "Notice of Additional Material and Relevant Caselaw" (Doc. 95 ). (See document for further details). Signed by Magistrate Judge Eileen S Willett on 3/28/17. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert William Dutcher, Plaintiff, 10 11 ORDER v. 12 No. CV-15-01079-PHX-ROS (ESW) Charles L Ryan, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 Pending before the Court is Defendant Stowe’s Motion to Strike (Doc. 99), which Defendant Shields has joined (Doc. 100). Defendants Stowe and Shields contend that Plaintiff’s February 14, 2017 “Notice of Additional Material and Relevant Caselaw” (Doc. 95) is an improper sur-reply to their Replies (Docs. 91, 92) in support of the Motion for Summary Judgment (Doc. 71) filed by Defendant Stowe, which Defendant Shields has joined (Doc. 78). Local Rule of Civil Procedure 56.1(d) permits a response to a motion for summary judgment and a reply. A sur-reply is not authorized by the Federal or Local Rules of Civil Procedure. In his Notice (Doc. 95), Plaintiff discusses case law and responds to the argument in Defendant Stowe’s Reply (Doc. 91 at 2-4) 1 that Plaintiff failed to properly raise his 27 28 1 Defendant Shields has joined in the Reply. (Doc. 92). 1 retaliation claim in the administrative grievance proceedings. In his Response (Doc. 101 2 at 2) opposing the Motion to Strike (Doc. 99), Plaintiff explains that he saw “the need to 3 give the Court some instruction as to the issue that the new cases applied to.” The Court 4 finds that Plaintiff’s “Notice” is properly construed as a sur-reply. See Credit Suisse 5 First Boston Corp. v. Grunwald, 400 F.3d 1119, 1124 (9th Cir. 2005) (stating that 6 court must look beyond the motion’s caption to its substance). Plaintiff did not request 7 permission from the Court before filing his “Notice” (Doc. 95). None of the cases 8 discussed in Plaintiff’s Notice were issued after the submission of the parties’ briefing. 9 The Court finds that Plaintiff has not shown good cause for the filing of a sur-reply. 10 Accordingly, 11 IT IS ORDERED granting the Motion to Strike (Doc. 99) and Joinder (Doc. 100). 12 IT IS FURTHER ORDERED striking Plaintiff’s “Notice of Additional Material 13 14 and Relevant Caselaw” (Doc. 95). Dated this 28th day of March, 2017. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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