D.C. v. County of San Diego et al

Filing 117

ORDER Granting 115 Defendant's Ex Parte Motion for Permission to File Sur-Reply. The County may file a three-page maximum sur-reply on or before December 14, 2020. Signed by Judge Michael M. Anello on 12/10/2020. (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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D.C., a minor by and through his
Guardian Ad Litem, Helen Garter, on
behalf of himself and all others similarly
situated,

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Case No.: 15-cv-1868-MMA (NLS)
ORDER GRANTING DEFENDANT’S
EX PARTE MOTION FOR
PERMISSION TO FILE SUR-REPLY

Plaintiff,

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[Doc. No. 115]

v.
COUNTY OF SAN DIEGO, et al.,

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Defendants.

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On November 11, 2020, Plaintiff filed a motion for leave to file a second amended
complaint. See Doc. No. 108. Defendant County of San Diego (the “County”) opposed,
to which Plaintiff replied. See Doc. Nos. 109, 113. The County now requests permission
to file a sur-reply. See Doc. No. 115. Plaintiff opposes the motion. See Doc. No. 116.
The Local Rules do not authorize the filing of a sur-reply. See generally CivLR
7.1. That said, District Courts have the discretion to either permit or preclude the filing
of a sur-reply upon request. See Johnson v. Wennes, No. 08-CV-1798-L (JMA), 2009
U.S. Dist. LEXIS 36992, 2009 WL 1161620, at *2 (S.D. Cal. Apr. 28, 2009). Such
discretion “should be exercised in favor of allowing a sur-reply only where a valid reason
for such additional briefing exists, such as where the movant raises new arguments in its

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15-cv-1868-MMA (NLS)

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reply brief.” Estate of Alvarado v. Tackett, No. 13-CV-1202 W (JMA), 2018 U.S. Dist.

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LEXIS 34794, at *3 (S.D. Cal. Mar. 2, 2018).

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The Court finds that additional briefing is warranted. First, Plaintiff raises a new

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argument in his reply. Plaintiff’s motion is devoid of Rule 16. See Doc. No. 109.

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Instead, he strictly briefs the matter under Rule 15. See id. at 9. In reply, he argues why

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Rule 15, not Rule 16 applies. See Doc. No. 113 p. 3. This is a new argument. Moreover,

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according to the County, an incident has occurred since the briefing on Plaintiff’s motion

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closed. See Doc. No. 115 at 2. Namely, the County’s settlement offer lapsed. See id.

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Whether and how this has any bearing on the merits of Plaintiff’s motion is unclear. But

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the County should be permitted to update the Court, and its argument, accordingly.

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Therefore, the Court finds good cause and GRANTS the County’s motion. The County

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may file a three-page maximum sur-reply on or before December 14, 2020.

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IT IS SO ORDERED.
Dated: December 10, 2020
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

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15-cv-1868-MMA (NLS)