275 Rivulon Boulevard LLC v. American Pacific Mortgage Corporation
Filing
34
ORDER denying 27 Motion to Strike. IT IS FURTHER ORDERED that Plaintiff 275 Rivulon Boulevard LLC is permitted to file a sur-reply, not exceeding five pages, narrowly crafted to address the specific issue identified in this Order. This sur-reply must be filed with the Court by February 3, 2025. Plaintiff is not permitted to file an additional statement of facts in support of this sur-reply. Signed by Judge Steven P Logan on 1/28/25. (MJW)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
275 Rivulon Boulevard, LLC,
9
10
Plaintiff,
vs.
11
12
American Pacific Mortgage
Corporation,
13
14
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
No. CV-24-02244-PHX-SPL
ORDER
15
Before the Court is Plaintiff’s Motion to Strike Portions of Defendant’s Reply in
16
Support of Motion to Dismiss (Doc. 27), Defendant’s Response (Doc. 38), and Plaintiff’s
17
Reply (Doc. 29). Plaintiff moves to strike portions of Defendant’s Reply that raise new
18
arguments for the first time. (Doc. 27 at 2).
19
In the Ninth Circuit, it is improper to raise arguments for the first time in a reply
20
brief. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not
21
consider arguments raised for the first time in a reply brief.”).
22
Here, Defendant admits that its argument that Plaintiff’s declaratory judgment claim
23
should be dismissed because it is duplicative of Plaintiff’s breach of contract claims was
24
first addressed in its Reply brief. (Doc. 28 at 2). This makes Defendant’s argument
25
improper. See Zamani, 491 F.3d at 997. However, while Defendant’s failure to raise the
26
arguments in its initial Motion may justify striking the argument, it also justifies allowing
27
Plaintiff to file a sur-reply. See Mexicanos v. Diamondback Shooting Sports, Inc., No. CIV
28
22-472-TUC-CKJ, 2023 WL 4237495, at *1 (D. Ariz. June 28, 2023); Spinedex Physical
1
Therapy, U.S.A., Inc. v. United Healthcare of Ariz., Inc., No. CV-08-00457-PHX-ROS,
2
2017 WL 11630875, at *2 (D. Ariz. Sept. 29, 2017) (“When a party raises a new argument
3
in reply, the Court will either refuse to consider that new argument, or will grant leave to
4
file a sur-reply to allow the party opposing the motion to contest newly-presented
5
matters.”).
6
Therefore, instead of striking Defendants’ argument as it relates to whether
7
Plaintiff’s declaratory judgment is duplicative of its breach of contract claim, the Court
8
will permit Plaintiff to file a sur-reply to Defendant’s Reply. This sur-reply will only
9
address the legal arguments surrounding the newly raised arguments in Defendant’s Reply
10
and will be narrowly crafted to only address that issue. Plaintiff will not be permitted to
11
file an additional statement of facts in support of this sur-reply. Accordingly,
12
13
IT IS ORDERED that Plaintiff 275 Rivulon Boulevard LLC’s Motion to Strike
(Doc. 27) is denied.
14
IT IS FURTHER ORDERED that Plaintiff 275 Rivulon Boulevard LLC is
15
permitted to file a sur-reply, not exceeding five pages, narrowly crafted to address the
16
specific issue identified in this Order. This sur-reply must be filed with the Court by
17
February 3, 2025. Plaintiff is not permitted to file an additional statement of facts in
18
support of this sur-reply.
19
Dated this 28th day of January, 2025.
20
21
22
Honorable Steven P. Logan
United States District Judge
23
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?