McRae v. Dikran et al

Filing 96

ORDER striking impermissible Surreply 92 signed by Magistrate Judge Gary S. Austin on 3/2/2021. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL SCOTT McRAE,

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Plaintiff,

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v.

1:16-01066-NONE-GSA-PC
ORDER STRIKING IMPERMISSIBLE
SURREPLY
(ECF No. 92.)

BAIRAMIAN DIKRAN, et al.,

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Defendants.

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I.

BACKGROUND

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Michael Scott McRae (“Plaintiff”) is a federal prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388

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(1971). This case now proceeds with Plaintiff’s Second Amended Complaint filed on March 9,

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2018, against defendants Dr. Dikran Bairamian,1 Dr. Kevin Cuong Nguyen, and Dr. David Betts,

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for inadequate medical care under the Eighth Amendment and state law claims for medical

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malpractice and medical battery. (ECF No. 14.)

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On October 23, 2020, defendant Bairamian filed a motion for summary judgment. (ECF

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No. 80.) On October 27, 2020, defendant Betz filed a motion for summary judgment. (ECF No.

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81.)

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In his original Complaint, Plaintiff referred to this defendant as Dr. Bairamian, Dikran, M.D.
(ECF No. 1.) The court entered the defendant’s name as Bairamian Dikran. (Court docket.) In his Answer to the
complaint, defense counsel clarifies that this defendant’s name is Dikran Bairamian. (ECF No. 32.)
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On December 4, 2020, Plaintiff filed an opposition to both of the motions for summary
judgment. (ECF No. 88.)

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On December 4, 2020, defendant Bairamian filed a reply to Plaintiff’s opposition. (ECF

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No. 87.) On December 10, 2020, defendant Betz filed a reply to Plaintiff’s opposition. (ECF

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No. 89.)

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On December 23, 2020, Plaintiff filed a response to both of the defendants’ replies. (ECF

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No. 92.) The court construes Plaintiff’s response to defendants’ replies as an impermissible

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surreply.

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II.

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

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March 1, 2021). The Local Rules provide for a motion, an opposition, and a reply. Neither the

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Local Rules nor the Federal Rules provide the right to file a surreply. A district court may allow

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

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where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136,

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

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Plaintiff’s response to both defendants’ replies is a surreply because it was filed on

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December 23, 2020, after both of the defendants’ motions were fully briefed. Defendant

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Bairamian’s motion for summary judgment was fully briefed and submitted on the record under

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Local Rule 230(l) on December 4, 2020 when defendant Bairamian filed a reply to Plaintiff’s

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opposition, (ECF No. 87); and, defendant Betz’s motion for summary judgment was fully briefed

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on December 10, 2020 when defendant Betz filed a reply to Plaintiff’s opposition, (ECF No. 89).

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In this case, the court neither requested a surreply nor granted a request on behalf of Plaintiff to

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file a surreply. Plaintiff has not shown good cause for the court to allow him to file any surreply

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at this juncture. Therefore, Plaintiff’s surreply shall be stricken from the record.2

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A document which is ‘stricken’ will not be considered by the Court for any purpose.”
(Informational Order, ECF No. 3 at 2 ¶II.A.)
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III.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s surreply, filed on

December 23, 2020, is STRICKEN from the court’s record.

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IT IS SO ORDERED.
Dated:

March 2, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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