Cody v. Beard et al

Filing 38

ORDER denying 36 Motion to Strike signed by District Judge Dale A. Drozd on 5/13/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JONATHAN CODY,

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No. 1:14-cv-01239-DAD-BAM (PC)

Plaintiff,
ORDER DENYING DEFENDANTS’
MOTION TO STRIKE

v.
JEFFREY BEARD, et al.,

(Doc. No. 36)
Defendants.

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On February 19, 2016, the assigned magistrate judge issued a findings and

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recommendations recommending that the court grant defendants’ motion for partial summary

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judgment. (Doc. No. 25.) On March 17, 2016, plaintiff filed objections to the findings and

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recommendation. (Doc. No. 27.) On March 28, 2016, defendants filed a response to plaintiff’s

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objections. (Doc. No. 28.) Plaintiff then filed a surreply on April 25, 2016. (Doc. No. 34.)

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Currently before the court is defendants’ motion to strike plaintiff’s surreply. (Doc. No.

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36.) Defendants argue that plaintiff’s filing of a surreply violates Local Rule 304, which provides

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for objections to finding and recommendations and a response to those objections, but does not

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authorize the filing of a surreply. Furthermore, defendants note that the court did not request

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leave to file a surreply, nor did the court grant such leave.

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Defendants are correct that neither the Federal Rules of Civil Procedure nor the Local
Rules contemplate or authorize the filing of a surreply. Also, in this case the court did not
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request, nor did plaintiff seek leave to file his unauthorized surreply. Nevertheless, in an

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abundance of caution, the court has exercised its discretion and considered plaintiff’s surreply in

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determining whether to adopt the magistrate judge’s findings and recommendations. However,

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the court found that nothing in plaintiff’s submissions, including his surreply, that undermined the

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magistrate judge’s analysis, and the findings and recommendations in question were adopted in

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full. (Doc. No. 37.)
For the reasons set forth above, defendants’ motion to strike (Doc. No. 36) is denied.

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IT IS SO ORDERED.
Dated:

May 13, 2016
UNITED STATES DISTRICT JUDGE

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