Coleman v. California Department of Correction and Rehabilitation et al

Filing 52

ORDER signed by Magistrate Judge Kendall J. Newman on 10/27/14 ORDERING that Defendants motion for an extension of time 47 is granted; Defendants shall file their reply on or before November 3, 2014; Defendants motion to strike portions of plaintiffs objections 50 is granted; and the following portions of plaintiffs objections 49 are stricken: page 5, line 18, through page 8, line 7, and Exhibit A attached thereto. (ECF No. 49 at 5:18 - 8:7 and Ex. A.)(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT COLEMAN,

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No. 2-13-cv-1021 JAM KJN P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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Defendants filed their first motion for extension of time to file a reply to plaintiff’s 107

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page opposition to defendants’ motion for summary judgment. Plaintiff objects to defendants’

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request for extension of time, claiming defendants were previously granted extensions of time and

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should have obtained the necessary documents by now. However, defendants’ prior extensions of

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time were granted in response to their obligation to file a responsive pleading. Defendants’

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instant request seeks additional time to file a reply to plaintiff’s lengthy opposition. Plaintiff’s

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objections are overruled, and good cause appearing, defendants’ request for extension of time to

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file a reply is granted.

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On October 10, 2014, defendants filed a motion to strike portions of plaintiff’s objections

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to defendants’ request for extension of time because plaintiff included arguments concerning

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defendants’ motion for summary judgment. Defendants contend that plaintiff’s arguments

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pertaining to the pending motion for summary judgment are an improper and unauthorized

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pleading because plaintiff intended them to serve as a sur-reply to defendants’ motion for

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summary judgment.
Defendants’ arguments are well-taken. Plaintiff’s statements and arguments concerning

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exhaustion of administrative remedies relevant to the pending motion for summary judgment that

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he included within his objections to the request for extension of time were improperly filed and

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are stricken. Accordingly, the following portions of plaintiff’s objections are stricken: page 5,

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line 18, through page 8, line 7, and Exhibit A attached thereto. (ECF No. 49 at 5:18 - 8:7 and Ex.

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A.) If plaintiff seeks to file a sur-reply to defendants’ opposition, he must seek leave of court to

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do so, after defendants have filed their reply. Moreover, plaintiff is cautioned that requests to file

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sur-replies are not routinely granted. See El Pollo Loco v. Hashim, 316 F.3d 1032, 1040-41 (9th

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Cir. 2003) (When a party has raised new arguments or presented new evidence in a reply to an

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opposition, the court may permit the other party to counter the new arguments or evidence.). In

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other words, if plaintiff has addressed the arguments and evidence in his opposition, he should not

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attempt to renew such arguments in a sur-reply.

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IT IS HEREBY ORDERED that:

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1. Defendants’ motion for an extension of time (ECF No. 47) is granted;

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2. Defendants shall file their reply on or before November 3, 2014;

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3. Defendants’ motion to strike portions of plaintiff’s objections (ECF No. 50) is granted;

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and
4. The following portions of plaintiff’s objections (ECF No. 49) are stricken: page 5,

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line 18, through page 8, line 7, and Exhibit A attached thereto. (ECF No. 49 at 5:18 - 8:7 and Ex.

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A.)

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Dated: October 27, 2014

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/cole1021.eotr

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