Opperman et al v. Path, Inc. et al

Filing 773

ORDER SUSTAINING PLAINTIFFS' OBJECTION 764 TO EVIDENCE SUBMITTED IN SUPPORT OF YELPS REPLY; GRANTING LEAVE TO FILE A SUR-REPLY; CONTINUING HEARING TO AUGUST 23Signed by Judge Jon S. Tigar on 7/29/2016.(jst) (Filed on 7/29/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARC OPPERMAN, et al.,

Case No. 13-cv-00453-JST

Plaintiffs,
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v.

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ORDER SUSTAINING PLAINTIFFS'
OBJECTION TO EVIDENCE
SUBMITTED IN SUPPORT OF YELP’S
REPLY; GRANTING LEAVE TO FILE
A SUR-REPLY; CONTINUING
HEARING TO AUGUST 23

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Re: Dkt. No. 764

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PATH, INC., et al.,

United States District Court
Northern District of California

Defendants.

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Pursuant to Civil Local Rule 7-3(d)(1), the Plaintiffs have filed objections to evidence they

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assert Defendant Yelp raised for the first time in its reply brief in support of summary judgment.

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ECF No. 764. The Plaintiffs ask that the Court either not consider the new evidence or, in the

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alternative, grant leave to file a sur-reply. Id. Yelp filed a response opposing the Plaintiffs’

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requests. ECF No. 767.

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“Where ‘new evidence is presented in a reply to a motion for summary judgment, the

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district court should not consider the new evidence without giving the [non-]movant an

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opportunity to respond.’” JG v. Douglas Cnty. Sch. Dist., 552 F.3d 786, 803, n. 14 (9th Cir. 2008)

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(alterations in the original) (quoting Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir.1996)). The

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Court agrees that Yelp presented new evidence in its reply ‒ namely, excerpts of deposition

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testimony from class representatives. See Yelp’s Reply Brief, ECF No. 759 at 10-16 (quoting

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from Exs. B, C, and D). Accordingly, the Court grants the Plaintiffs’ request to file a sur-reply to

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respond to this new evidence. The sur-reply must be filed no later than August 4, 2016 and must

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not exceed five pages.

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In light of the additional filing, the hearing on Yelp’s motion for summary judgment is

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continued from August 4, 2016 at 2:00 P.M. to August 23, 2016 at 9:30 A.M. To promote judicial

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efficiency, the hearing on Defendant EA/Chillingo’s motion for summary judgment is also

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continued from August 4, 2016 at 2:00 P.M. to August 23, 2016 at 9:30 A.M.

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IT IS SO ORDERED.
Dated: July 28, 2016
______________________________________
JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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