Bricklayers and Allied Craftworkers Local Union No. 3, AFL-CIO et al v. E & L Young Enterprises, Inc. et al

Filing 45

ORDER REQUIRING SUR-REPLY (Illston, Susan) (Filed on 6/19/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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BRICKLAYERS & ALLIED
CRAFTWORKERS LOCAL UNION NO. 3,
AFL-CIO et al.,

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No. C 11-05051 SI
ORDER REQUIRING SUR-REPLY

Plaintiffs,
v.
E&L YOUNG ENTERPRISES,
Defendant.

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Currently before the Court is defendant’s motion to dismiss. The matter is currently set for

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hearing on June 29, 2012. In the motion to dismiss, defendant raised two arguments: (1) plaintiffs failed

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to plead relief to which they are entitled under 29 U.S.C. § 158; and (2) actions based upon “alter ego”

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liability belong to the bankruptcy trustee (who is administering the personal bankruptcy petition of the

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CEO of defendant corporation). Plaintiffs filed an opposition to the motion to dismiss on June 8, 2012

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and defendant filed its reply on June 15, 2012. In that reply, however, defendant raises a wholly new

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argument: that the collective bargaining agreement upon which plaintiffs rest their claims for relief in

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this case has been “rejected by operation of law” in the bankruptcy court and, therefore, plaintiffs’

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claims must be dismissed here. See Docket No. 43.

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It is improper to raise a legal argument for the first time in a reply brief. Nonetheless, the Court

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will address the argument on its merits after plaintiffs have an opportunity to file a sur-reply. Therefore,

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on or before June 26, 2012, plaintiffs shall file a sur-reply addressing defendant’s newly raised

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argument in support of its motion to dismiss. The hearing on this matter is rescheduled to July 6, 2012.

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IT IS SO ORDERED.

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Dated: June 19, 2012

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SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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