Silveira et al v. State of California et al

Filing 27

ORDER on plaintiff's ex parte application to file a surreply. signed by District Judge Anthony W. Ishii on 9/12/13. (Nazaroff, H)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiffs,
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v.
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JEFFREY A. BEARD, in his official
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capacity as the Secretary of the California)
Department of Corrections and
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Rehabilitation, and DOES 2 through 10, )
inclusive
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Defendants.
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____________________________________)
CARLOSE SILVEIRA, GEOREGETTE
PICKETT, and CHARLES HUGHES, as
individuals and on behalf of all others
similarly situated,

1:13-CV-0084 AWI BAM
ORDER ON PLAINTIFFS’ EX
PARTE APPLICATION TO
FILE A SURREPLY
(Doc. No. 26)

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On April 11, 2013, the Court vacated a hearing on Defendants’ motion to dismiss. The

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same day, Plaintiffs’ filed an ex parte application to file a sur-reply. See Doc. No. 26. The sur-

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reply is attached as an exhibit to the application itself. Plaintiffs sur-reply is limited to

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addressing a Ninth Circuit case that was decided on April 4, 2013, and that was cited in

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Defendants’ April 8, 2013, reply. The case, North East Med’l Servs., Inc. v. California Dept. of

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Health Care Servs., 11-16759 (9th Cir. Apr. 4, 2013), was decided after Plaintiffs filed their

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opposition. Plaintiffs indicate that they contacted Defendants about filing a sur-reply, but that

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defense counsel stated in an e-mail that he would oppose the request to file a sur-reply.

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In an e-mail to the courtroom deputy, Defendant has indicated that he wishes to oppose

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Plaintiffs’ application and asks for two days to file their opposition.1 Additionally, Defendants

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request time to file a reply to the sur-reply.

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The e-mail is in the nature of a procedural inquiry. It informs the Court that Defendant wishes to file an
opposition, and then asks how Defendant should request permission to respond to the sur-reply. Neither the merits
of the request to file a sur-reply nor the motion to dismiss are discussed.

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Defendants will not be permitted to file an opposition to the application. Plaintiffs’

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application is modest and reasonable. Permitting time for the parties to file briefing on North

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East will not cause a material delay in resolving the motion to dismiss. Because of the weight of

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the Court’s docket, no decision on the motion should be expected for several weeks in any event.

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Given that the North East case is so new, Plaintiffs’ request will be granted and Defendants will

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be allowed to file a response to the sur-reply.

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Therefore, IT IS HEREBY ORDERED that:

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Plaintiffs’ ex parte request to file a sur-reply is GRANTED;

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2.

Plaintiffs’ sur-reply, which is Doc. No. 26-2, is considered FILED and the Court will
consider that document in resolving the motion to dismiss; and

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3.

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IT IS SO ORDERED.

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Defendants may file a response to the sur-reply no later than April 19, 2013.

Dated:
0m8i78

April 12, 2013
SENIOR DISTRICT JUDGE

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