Wright et al v. Tehachapi Unified School District

Filing 46

ORDER DENYING 45 Plaintiff's Request to File a Second Reply Brief, signed by Magistrate Judge Jennifer L. Thurston on 8/1/2017. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BUDDY WRIGHT,

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Plaintiff,

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v.
TEHACHAPI UNIFIED SCHOOL
DISTRICT, et al.,

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Defendants.
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Case No.: 1:16-cv-01214 LJO JLT
ORDER DENYING PLAINTIFF’S REQUEST TO
FILE A SECOND REPLY BRIEF

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In his motion, the plaintiff sought an award of fees to compensate him for efforts made in

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this litigation to collect fees in the administrative process. (Doc. 35 at 26) However, his counsel

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failed to provide any billing records with the motion on this topic. Once alerted through the

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opposition that fees could not be awarded without this supporting evidence (Doc. 37 at 22), the

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plaintiff filed the billing records with the reply1 (Doc. 39-1).

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Generally, the Court strikes evidence submitted with the reply. However, as an

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accommodation to the plaintiff, the Court chose to allow the evidence to stand but, in doing so,

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was obligated to allow the defendant an opportunity to rebut it. Provenz v. Miller, 102 F.3d 1478,

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1483 (9th Cir. 1996) [Evidence submitted with the reply may not be considered without giving the

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Plaintiff claimed that this was purposeful because otherwise the time records would “not be complete.” (Doc. 39 at
11) However, submitting incomplete records is far better than having no supporting evidence. In fact, every motion
for fees this Court has ever entertained contemplates that there will be further work done to prepare the reply and to
appear at the hearing. The fact that bills continue to accumulate does not justify depriving the opponent of due
process.

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non-movant an opportunity to respond]. Rather than appreciating this accommodation, plaintiff

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now moves the Court for leave to file a second reply brief and argues he would be prejudiced if it

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is not allowed. In making this argument, the plaintiff ignores that this is a situation of his own

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making. Moreover, if the second reply is allowed, then in fairness, the Court should permit the

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defense an opportunity to argue the matter. The Court refuses the invitation to take this route

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which would further increase the fees in this case. Thus, the plaintiff’s motion to file a second

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reply is DENIED.

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IT IS SO ORDERED.
Dated:

August 1, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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