AdTrader, Inc. v. Google LLC

Filing 125

ORDER DENYING 121 PLAINTIFFS' ADMINISTRATIVE MOTION FOR LEAVE TO FILE SUR-REPLY. Signed by Judge Beth Labson Freeman on 3/4/2019. (blflc3S, COURT STAFF) (Filed on 3/4/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ADTRADER, INC., et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 17-cv-07082-BLF

v.
GOOGLE LLC,
Defendant.

ORDER DENYING PLAINTIFFS’
ADMINISTRATIVE MOTION FOR
LEAVE TO FILE SUR-REPLY
[Re: ECF 121]

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Before the Court is Plaintiffs’ Administrative Motion for Leave to File Sur-Reply in

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Support of Opposition to Google LLC’s Motion to Dismiss (“Motion”) pursuant to Civil Local

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Rule 7-11. See Motion, ECF 119-4. Defendant opposes Plaintiffs’ Motion. See Opp’n, ECF 123.

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Plaintiffs “seek leave to present the Court with [purported new] evidence [], in advance of the

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March 7, 2019 hearing” on Defendant’s motion to dismiss. See Motion at 1.

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Plaintiffs motion for leave to file a sur-reply is DENIED. First of all, Civil Local

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Rule 7-3(d) provides that, “[o]nce a reply is filed, no additional memoranda, papers or letters may

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be filed without prior Court approval,” except to object to reply evidence or to provide a statement

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of recent decision. Neither exception applies here. Second, while “new” evidence may be

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grounds to file an amended complaint, the Court does not find that Plaintiffs have demonstrated

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“good cause” otherwise warranting a sur-reply. See, e.g., Hall v. City and County of San

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Francisco, 2017 WL 5569829, at *4 (N.D. Cal. Nov. 20, 2017) (denying plaintiff’s request to file

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sur-reply where defendant’s reply did not raise new arguments or evidence). Indeed, Plaintiffs do

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not argue that Defendant’s reply serves as a basis for the proposed sur-reply, but instead

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“extensive new facts” arising from discovery. See Motion at 1, 5. New evidence is not

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appropriately submitted in a sur-reply. See Rodgers v. Chevys Restaurants, LLC, 2015

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WL 909763, at *6 (N.D. Cal. Feb. 24, 2015) (denying motion for leave to file sur-reply containing

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new evidence on the basis that it is “impermissib[e] [] to present new evidence” in a sur-reply).

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Moreover, Plaintiffs’ proposed sur-reply (ECF 119-6) completely ignores the civil local

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rules and the undersigned’s standing order with respect to text and footnoting requirements. See,

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e.g., Civ. L.R. 3-4(c)(2); Standing Order re Civil Cases § E.5. A two-page sur-reply with no

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exhibits may be appropriate in rare circumstances; Plaintiffs’ proposed nine-page, single-spaced,

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non-conforming sur-reply is surely not.

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For the foregoing reasons, Plaintiffs’ motion for leave to file a sur-reply at ECF 121 is
DENIED.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: March 4, 2019
______________________________________
BETH LABSON FREEMAN
United States District Judge

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