Lopez v. Pre-employ.com, Inc.

Filing 41

ORDER signed by District Judge Troy L. Nunley on 8/20/2018 GRANTING Plaintiff's 39 Ex Parte Application to file a sur-reply. Plaintiff is directed to file the sur-reply within seven (7) days of the date of this Order. (Zignago, K.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ANTONIO A. LOPEZ,

12

Plaintiff,

13

v.

14

PRE-EMPLOY.COM, INC.,

15

No. 2:16-cv-02205-TLN-KJN
ORDER GRANTING PLAINTIFF’S EX
PARTE APPLICATION FOR LEAVE TO
FILE A SUR-REPLY TO DEFENDANT’S
REPLY IN SUPPORT OF DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

Defendant.

16
17

This matter is before the Court pursuant to Plaintiff Antonio A. Lopez’s (“Plaintiff”) Ex

18

Parte Application to File a Sur-Reply to Defendant Pre-Employ.Com., Inc.’s (“Defendant”) Reply

19

in Support of Its Motion for Summary Judgment. (ECF No. 39.) Defendant opposes Plaintiff’s

20

application. (ECF No. 40.)

21

Defendant moved for summary judgment on July 11, 2018. (ECF No. 22.) On June 13,

22

2018, the Ninth Circuit published its opinion in Dutta v. State Farm Mut. Auto. Ins. Co., 895 F.3d

23

1166 (9th Cir. 2018) (“Dutta”). On July 26, 2018, Plaintiff opposed Defendant’s motion. (ECF

24

No. 30.) On August 2, 2018, Defendant replied and argued, in part, that based on the Ninth

25

Circuit’s recent precedent in Dutta, Plaintiff “lacks Article III standing to pursue his claims”

26

against Defendant. (ECF No. 34 at 10.)

27
28

Plaintiff argues Defendant raised new legal arguments in its reply that were not raised in
Defendant’s motion. (ECF No. 39 at 2.) Plaintiff argues: (i) this Court should not consider
1

1

arguments raised for the first time in a reply brief; (ii) if the Court chooses to consider the

2

arguments, Plaintiff should be permitted to file a sur-reply to respond to those new arguments,

3

especially as the Court vacated the motion hearing and Plaintiff will not have another opportunity

4

to respond to those new arguments; and (iii) Defendant “misinterprets” Dutta, which supports

5

Plaintiff’s Article III standing. (ECF Nos. 39 at 2, 39-1 at 2.) Defendant argues: (i) it mentioned

6

Dutta only briefly and only to explain that Plaintiff could not prove harm as he lacks Article III

7

standing according to Dutta; (ii) Plaintiff devotes only two pages of a six-page sur-reply to

8

discussing Dutta; and (iii) the Ninth Circuit issued Dutta before Plaintiff filed his opposition and

9

he could have analyzed Dutta in his opposition. (ECF No. 40 at 4–5.)

10

A district court has the discretion to allow a sur-reply “where a valid reason for such

11

additional briefing exists, such as where the movant raises new arguments in its reply brief.” Hill

12

v. England, 2005 WL 3031136, at *1 (E.D. Cal. Nov. 8, 2005). Defendant states that part of its

13

argument in its reply brief, that Plaintiff lacks standing and thus cannot prove harm as a matter of

14

law, is “based on a Ninth Circuit ruling on July 13, 2018,” and cites Dutta. (ECF No. 34 at 10.)

15

Accordingly, the Court hereby GRANTS Plaintiff's Ex Parte Application to file a sur-reply, (ECF

16

No. 39). Plaintiff is directed to file the sur-reply within seven (7) days of the date of this Order.

17
18

IT IS SO ORDERED.
Dated: August 20, 2018

19
20
21

Troy L. Nunley
United States District Judge

22
23
24
25
26
27
28
2