Willis v. Lappin et al

Filing 77

ORDER Granting Plaintiff's Motion To Strike (Doc. 76 ), ORDER Striking Portion Of Defendants' Response, To The Extent That It Acts As A Surreply (Doc. 73 ), signed by Magistrate Judge Gary S. Austin on 11/7/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES R. WILLIS,

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1:09-cv-01703-AWI-GSA-PC
ORDER GRANTING PLAINTIFF’S
MOTION TO STRIKE
(Doc. 76.)

Plaintiff,

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vs.

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ORDER STRIKING PORTION OF
DEFENDANTS’ RESPONSE, TO THE
EXTENT THAT IT ACTS AS A SURREPLY
(Doc. 73.)

HARLEY G. LAPPIN, et al.,

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Defendants.

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I.

BACKGROUND

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James R. Willis (APlaintiff@) is a federal prisoner proceeding pro se in this civil rights

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action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff filed this

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case on September 28, 2009. (Doc. 1.) On May 20, 2013, the court dismissed this case with

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prejudice, pursuant to the parties’ stipulation to a settlement agreement reached between

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Plaintiff and Defendants. (Doc. 64.)

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On August 19, 2013, the court entered an order requiring the parties to respond whether

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Plaintiff’s Expedited Motion to Enforce Settlement (“Expedited Motion”), filed on July 22,

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2013, and other documents regarding the parties’ settlement, should be maintained on the court

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record under seal. (Doc. 69.) On September 9, 2013, Defendants filed a response to the order.
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(Doc. 73.) On September 19, 2013, Plaintiff filed a motion to strike part of Defendants’

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response. (Doc. 76.) Defendants have not filed an opposition.
Plaintiff’s motion to strike is now before the court.

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II.

PLAINTIFF’S MOTION TO STRIKE

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Plaintiff requests the court to strike part of Defendants’ September 9, 2013 response to

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the court’s order. Plaintiff argues that Defendants improperly incorporated an argument into

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their response to the court’s order which amounts to a surreply in support of Defendants’

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opposition to Plaintiff’s Expedited Motion. Plaintiff argues that Defendants violated Local

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Rule 230 in submitting the surreply.

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Surreply

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A surreply, or sur-reply, is an additional reply to a motion filed after the motion has

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already been fully briefed.

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visited November 5, 2012). The Local Rules provide for a motion, an opposition, and a reply.

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Neither the Local Rules nor the Federal Rules provide the right to file a surreply. A district

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court may allow a surreply to be filed, but only “where a valid reason for such additional

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briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v.

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England, 2005 WL 3031136, *1 (E.D. Cal. Nov. 8, 2005).

USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last

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Here, the court finds no valid reason to allow a surreply, because Plaintiff did not raise

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any new arguments in his reply brief, and Defendants have not provided any reason their

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arguments could not have been made in their opposition to Plaintiff’s Expedited Motion. The

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Court neither requested a surreply nor granted a request on behalf of Defendants to file one.

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Plaintiff’s Expedited Motion was deemed submitted to the court on August 26, 2013. Local

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Rule 230(l). Therefore, Plaintiff’s motion to strike shall be granted.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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///

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Plaintiff’s motion to strike, filed on September 19, 2013, is GRANTED; and

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The portion of Defendants’ response of September 9, 2013, which acts as a

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surreply in opposition to Plaintiff’s Expedited Motion of July 22, 2012, is STRICKEN from the

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record.1

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IT IS SO ORDERED.
Dated:

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November 7, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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“When a document is stricken, it becomes a nullity and is not considered by the court for any purpose.”
(Informational Order, Doc. 3 at 2 fn.1.)
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