Brightwell v. McMillan Law Firm, APC The et al

Filing 66

ORDER Denying 62 Ex Parte Motion for Leave to File A Sur-Reply. Signed by Judge Thomas J. Whelan on 9/28/2017. (jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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L. LEE BRIGHTWELL,

Case No.: 16-CV-1696 W (NLS)
Plaintiff,

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v.

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ORDER DENYING EX PARTE
APPLICATION TO FILE A SURREPLY [DOC. 62]

THE MCMILLAN LAW FIRM, APC,
et al.,

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Defendants.

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Defendant The McMillan Law Firm applies ex parte for leave of Court to file a

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sur-reply in response to Plaintiff’s reply brief in connection with her motion to dismiss.

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(Reply [Doc. 60].)

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The Local Rules in this District do not authorize the filing of a sur-reply. Still,

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district courts have the discretion to either permit or preclude the filing of a sur-reply.

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See, e.g., Johnson v. Wennes, No. 08-CV-1798-L (JMA), 2009 WL 1161620, at *2 (S.D.

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Cal. Apr. 28, 2009) (Lorenz, J.). Such discretion “should be exercised in favor of

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allowing a sur-reply only where a valid reason for such additional briefing exists, such as

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where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL

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3031136, at *1 (E.D. Cal. Nov. 8, 2005) (quoting Fedrick v. Mercedes-Benz USA, LLC,

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366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005)) (internal quotation marks omitted).
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16-CV-1696 W (NLS)

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Defendant contends that Plaintiff makes a representation of fact in its reply brief—

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buttressed by a declaration filed alongside it—that contradicts allegations made in the

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Amended Cross-Complaint. (Compare Reply [Doc. 60] 2:18–23 (“Counterclaimant itself

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was the one that provided Brightwell’s subdirectory to the undersigned counsel.”); and

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Heinlein Decl. [Doc. 60-1] ¶ 2 (“I went to Mr. McMillan’s office and picked up several

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boxes of hard copy files and a disk containing the entire “subdirectory” of files for Ms.

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Brightwell’s case.”), with Amended Cross-Complaint [Doc. 51] ¶ 85 (“Joshua Heinlein,

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counsel and authorized agent for Counterdefendant[,] disclosed that he had the entirety of

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the subdirectory associated with Lee Brightwell. Such subdirectory had not been made

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available to Counterdefendant, and the obtaining of that subdirectory was without

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Counterclaimant’s knowledge or authorization.”).)

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Upon a Rule 12(b)(6) motion to dismiss, the Court assumes true all well-pled

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allegations of fact within the operative pleading. See Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009). “As a general rule, ‘a district court may not consider any material beyond

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the pleadings in ruling on a Rule 12(b)(6) motion.’ ” Lee v. City of Los Angeles, 250

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F.3d 668, 688 (9th Cir. 2001). There are two exceptions to this rule—incorporation by

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reference, and judicial notice. See id. at 688–89. Defendant does not show that either

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applies. As the Court does not consider extrinsic evidence at this stage, allowing further

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extrinsic evidence would be both unnecessary and inefficient.

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Defendant’s ex parte application for leave to file a sur-reply is DENIED.

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IT IS SO ORDERED.
Dated: September 28, 2017

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16-CV-1696 W (NLS)