Patten v. Hancock

Filing 32

ORDER REGARDING 31 Objections to Tardy Opposition Brief and Permitting Sur-Reply. Signed by Judge Jeffrey S. White on January 5, 2016. (jswlc3, COURT STAFF) (Filed on 1/5/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LEON PATTEN,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No. 15-cv-04022-JSW
ORDER RE OBJECTIONS TO
PLAINTIFF’S SECOND OPPOSITION
BRIEF AND PERMITTING SUR-REPLY

LELAND W. HANCOCK, et al.,
Defendants.

Re: Docket No. 31

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Defendants have moved to dismiss this case for lack of subject matter jurisdiction, and the
Court is scheduled to hear the motion on January 22, 2016.

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The state of the docket and the briefing in this case is suboptimal. On October 23, 2015,

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Defendants filed their original motion to dismiss. (Docket No. 14.) Plaintiff’s opposition to that

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motion should have been filed on November 6, 2015. Plaintiff did not file a timely opposition.

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Subsequently, on November 20, 2015, Defendants filed a “Corrected Motion to Dismiss.”

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(Docket No. 16.) On that same day, Plaintiff belatedly, and without leave of court, filed his

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opposition to the motion to dismiss. (Docket No. 17.) Thereafter, on November 23, 2015, filed a

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second “Corrected Motion to Dismiss.” (Docket No. 23.)

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On November 24, 2015, the Court issued an Order to Show Cause to the parties, which it

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discharged on December 7, 2015. (Docket Nos. 24, 28.) In that Order, the Court stated that it

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would treat the second corrected motion to dismiss as the operative motion. Although not

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expressed in that Order, the Court’s ruling was premised on Defendants’ response to the Order to

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Show Cause, which demonstrated that the changes made to the motion were not substantive.

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Accordingly, the Court directed Defendants to file their reply brief by December 18, 2015, and

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rescheduled the hearing for January 22, 2016.

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On Dec
cember 18, 2015, Defend
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dants filed th reply. H
heir
However, on that same d
n
date, Plaintif
ff

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file a second opposition to the motion to dismiss, without see
ed
o
o
n
eking leave o court to do so.
of
o

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De
efendants hav now objected to that filing, and th ask that the Court str the seco
ve
f
hey
rike
ond

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opp
position and not conside it, and they argue that they would be prejudice because t
d
er
y
ed,
they did not

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hav the oppor
ve
rtunity to rep to the arg
ply
guments rais ed in the sec
cond opposit
tion.

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Plaintif second opposition in
ff’s
o
ncorporates b reference the oppositi brief and
by
ion
d

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dec
clarations fil on Novem
led
mber 20, 2015. It also in
ncludes thre additional paragraphs of
ee

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arg
gument. (Sec
cond Opposition at 2:17
7-26.) As the Court read those para
e
ds
agraphs, they do no more
y
e

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tha repeat arg
an
guments, albe in differe words, ra
eit
ent
aised in Plain
ntiff’s first o
opposition br at page
rief

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United States District Court
Northern District of California

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3, lines 6-26.
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However, if Defend
dants in good faith can d
d
demonstrate to the Court that those th
t
hree

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add
ditional para
agraphs, which are comp
prised of eigh lines of ar
ht
rgument, con
ntain inform
mation that

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the were not able to respo to in thei reply brief the Court s
ey
a
ond
ir
f,
shall permit them the op
pportunity to
o

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a tw paragraph sur-reply.
wo

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If Defen
ndants wish to file a sur-reply, they shall submit their propo
t
osed sur-reply by no later
r

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tha January 11, 2016, accompanied by a statemen that specif
an
y
nt
fically states which of th arguments
he
s

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rais at page 2, lines 17-2 of Plaintiff’s second o
sed
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26,
opposition, D
Defendants w unable to respond
were

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to in their reply brief.
i
y

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With th exception of the possible sur-re
he
n
eply, and un
nless specific
cally ordere by the
ed
Co
ourt, the Cou shall no accept any further br
urt
ot
y
riefs in conn
nection with the motion to dismiss.
h
n
IT IS SO ORDER
S
RED.
Da
ated: January 5, 2016
y

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__
___________
__________
____
JE
EFFREY S. W
WHITE
Un
nited States D
District Judg
ge

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