Harris v. Best Buy Stores, L.P.

Filing 75

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING 74 MOTION TO FILE SUR-REPLY(ndrS, COURT STAFF) (Filed on 3/15/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STARVONA HARRIS,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No. 15-cv-00657-HSG
ORDER GRANTING MOTION TO FILE
SUR-REPLY
Re: Dkt. No. 74

BEST BUY STORES, L.P.,
Defendant.
Currently before the Court is Plaintiff’s motion for leave to file a sur-reply. For the
reasons explained below, the Court GRANTS Plaintiff’s motion.
Defendant timely filed its reply to Plaintiff’s opposition to Defendant’s summary judgment

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by the deadline of March 10, 2016. Dkt. No. 71. On March 11, 2016, Defendant filed an errata

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indicating that Dkt. No. 71 contained errors in certain mathematical calculations. Accordingly,

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Defendant filed a corrected reply, see Dkt. No. 72. On March 14, 2016, pursuant to Local Rule 7-

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3(d), Plaintiff filed an objection to the corrected reply, arguing that Defendant’s latest reply

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“contains new arguments, theories and calculations that vary from its reply brief filed on March

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10,” Dkt. No. 73.

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The Court agrees with Plaintiff that Defendant’s latest reply contains new information.

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Normally, the Court would not entertain a reply brief containing new authority and argument, see

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Roe v. Doe, No. C 09–0682 PJH, 2009 WL 1883752, at *5 (N.D. Cal. June 30, 2009 (holding that

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a court may strike new evidence raised for the first time in a reply). However, in this case, the

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Court exercises its discretion to consider Defendant’s latest reply, finding the brief helpful to the

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Court’s merits analysis. Accordingly, the Court STRIKES Dkt. No. 71 from the docket.

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Because of the new information in Defendant’s reply, the Court GRANTS Plaintiff’s
motion to file a sur-reply. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir.1996) (where new

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evidence is presented in a reply to a motion for summary judgment, the district court should not

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consider the new evidence without giving the non-movant an opportunity to respond).

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Plaintiff is directed to limit the sur-reply to only the new information contained in Dkt. No.

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72. The sur-reply should not repeat arguments or raise new arguments that could have been raised

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in its opposition. The sur-reply may not exceed five pages and is due by March 21, 2016.

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IT IS SO ORDERED.
Dated: 3/15/2016

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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