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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES R. WILLIS, 12 1:09-cv-01703-AWI-GSA-PC ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE (Doc. 76.) Plaintiff, 13 vs. 14 15 ORDER STRIKING PORTION OF DEFENDANTS’ RESPONSE, TO THE EXTENT THAT IT ACTS AS A SURREPLY (Doc. 73.) HARLEY G. LAPPIN, et al., 16 Defendants. 17 18 19 I. BACKGROUND 20 James R. Willis (APlaintiff@) is a federal prisoner proceeding pro se in this civil rights 21 action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff filed this 22 case on September 28, 2009. (Doc. 1.) On May 20, 2013, the court dismissed this case with 23 prejudice, pursuant to the parties’ stipulation to a settlement agreement reached between 24 Plaintiff and Defendants. (Doc. 64.) 25 On August 19, 2013, the court entered an order requiring the parties to respond whether 26 Plaintiff’s Expedited Motion to Enforce Settlement (“Expedited Motion”), filed on July 22, 27 2013, and other documents regarding the parties’ settlement, should be maintained on the court 28 record under seal. (Doc. 69.) On September 9, 2013, Defendants filed a response to the order. 1 1 (Doc. 73.) On September 19, 2013, Plaintiff filed a motion to strike part of Defendants’ 2 response. (Doc. 76.) Defendants have not filed an opposition. Plaintiff’s motion to strike is now before the court. 3 4 II. PLAINTIFF’S MOTION TO STRIKE 5 Plaintiff requests the court to strike part of Defendants’ September 9, 2013 response to 6 the court’s order. Plaintiff argues that Defendants improperly incorporated an argument into 7 their response to the court’s order which amounts to a surreply in support of Defendants’ 8 opposition to Plaintiff’s Expedited Motion. Plaintiff argues that Defendants violated Local 9 Rule 230 in submitting the surreply. 10 Surreply 11 A surreply, or sur-reply, is an additional reply to a motion filed after the motion has 12 already been fully briefed. 13 visited November 5, 2012). The Local Rules provide for a motion, an opposition, and a reply. 14 Neither the Local Rules nor the Federal Rules provide the right to file a surreply. A district 15 court may allow a surreply to be filed, but only “where a valid reason for such additional 16 briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. 17 England, 2005 WL 3031136, *1 (E.D. Cal. Nov. 8, 2005). USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last 18 Here, the court finds no valid reason to allow a surreply, because Plaintiff did not raise 19 any new arguments in his reply brief, and Defendants have not provided any reason their 20 arguments could not have been made in their opposition to Plaintiff’s Expedited Motion. The 21 Court neither requested a surreply nor granted a request on behalf of Defendants to file one. 22 Plaintiff’s Expedited Motion was deemed submitted to the court on August 26, 2013. Local 23 Rule 230(l). Therefore, Plaintiff’s motion to strike shall be granted. 24 III. CONCLUSION 25 Based on the foregoing, IT IS HEREBY ORDERED that: 26 1. 27 /// 28 Plaintiff’s motion to strike, filed on September 19, 2013, is GRANTED; and /// 2 1 2. The portion of Defendants’ response of September 9, 2013, which acts as a 2 surreply in opposition to Plaintiff’s Expedited Motion of July 22, 2012, is STRICKEN from the 3 record.1 4 5 6 7 IT IS SO ORDERED. Dated: 8 9 10 November 7, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 “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.) 3

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