Rushdan v. Davey et al.

Filing 72

ORDER GRANTING Defendant Casas' 71 Motion to Strike Plaintiff's Unauthorized Surreply; ORDER Striking 70 Surreply signed by Magistrate Judge Gary S. Austin on 05/20/2020. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SALADIN RUSHDAN aka
ROBERT STANLEY WOODS,
Plaintiff,

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vs.

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D. DAVEY, et al.,
Defendants.

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1:16-cv-00988-NONE-GSA-PC
ORDER GRANTING DEFENDANT CASAS’
MOTION TO STRIKE PLAINTIFF’S
UNAUTHORIZED SURREPLY
(ECF No. 71.)
ORDER STRIKING SURREPLY
ECF No. 70.)

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I.

BACKGROUND

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Saladan Rushdan aka Robert Stanley Woods (“Plaintiff”) is a state prisoner proceeding

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pro se with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with

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Plaintiff’s Second Amended Complaint (2ACP) filed on March 9, 2018, against defendant

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Correctional Officer Casas (“Defendant”) for use of excessive force in violation of the Eighth

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Amendment and related state claims. (ECF No. 28.)

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On April 7, 2020, Defendant Casas filed a motion to set aside entry of default. (ECF No.

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67.) On April 23, 2020, Plaintiff filed an opposition to Defendant’s motion. (ECF No. 68.) On
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April 28, 2020, Defendant Casas filed a reply to Plaintiff’s opposition. (ECF No. 69.) On May

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11, 2020, Plaintiff filed an opposition to Defendant’s reply. (ECF No. 70.)
On May 13, 2020, Defendant filed a motion to strike Plaintiff’s opposition to Defendant’s

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reply as an unauthorized surreply. (ECF No. 71.) Plaintiff has not opposed the motion.

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II.

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SURREPLY
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 August 13, 2019). 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 court

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

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exists, such as where the movant raises new arguments in its reply brief.” Hill v. England, 2005

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

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III.

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

DEFENDANT’S MOTION

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Defendant Casas moves to strike Plaintiff’s surreply on the ground that it is unauthorized.

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Defendant asserts that her reply to Plaintiff’s opposition was filed on April 28, 2020, and thus

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Defendant’s motion was deemed submitted on that date. Defendant argues that Plaintiff’s second

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opposition did not present new evidence, which may warrant a surreply, but rather Plaintiff filed

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the surreply in an attempt to rebut Defendant’s reply. Thus, because Plaintiff did not obtain leave

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of court to file a surreply or establish good cause why he should be granted leave, Defendant

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argues that the court should strike Plaintiff’s impermissible surreply from the record.

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IV.

DISCUSSION

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Plaintiff’s opposition filed on May 11, 2020, is Plaintiff’s second opposition to

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Defendant’s motion to set aside entry of judgment. The second opposition is a surreply because

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it was filed after Defendant’s motion was fully briefed. The motion was fully briefed and

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submitted on the record under Local Rule 230(l) on April 28, 2020, when Defendant filed a reply

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to Plaintiff’s first opposition. (ECF No. 69.)

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In this case, the court neither requested a surreply, nor granted a request on Plaintiff’s

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behalf to file a surreply. Plaintiff’s surreply does not raise new arguments, and Plaintiff has not
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shown good cause for the court to allow him to file a surreply at this juncture. Therefore,

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Plaintiff’s surreply shall be stricken from the record.1

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V.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Defendant Casas’ motion to strike, filed on May 13, 2020, is GRANTED; and

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2.

Plaintiff’s surreply, filed on May 11, 2020, is STRICKEN from the record.

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IT IS SO ORDERED.
Dated:

May 20, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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A document which is “stricken” will not be considered by the court for any purpose.
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