Brightwell v. McMillan Law Firm, APC The et al
ORDER Denying 62 Ex Parte Motion for Leave to File A Sur-Reply. Signed by Judge Thomas J. Whelan on 9/28/2017. (jao)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
L. LEE BRIGHTWELL,
Case No.: 16-CV-1696 W (NLS)
ORDER DENYING EX PARTE
APPLICATION TO FILE A SURREPLY [DOC. 62]
THE MCMILLAN LAW FIRM, APC,
Defendant The McMillan Law Firm applies ex parte for leave of Court to file a
sur-reply in response to Plaintiff’s reply brief in connection with her motion to dismiss.
(Reply [Doc. 60].)
The Local Rules in this District do not authorize the filing of a sur-reply. Still,
district courts have the discretion to either permit or preclude the filing of a sur-reply.
See, e.g., Johnson v. Wennes, No. 08-CV-1798-L (JMA), 2009 WL 1161620, at *2 (S.D.
Cal. Apr. 28, 2009) (Lorenz, J.). 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 reply brief.” Hill v. England, 2005 WL
3031136, at *1 (E.D. Cal. Nov. 8, 2005) (quoting Fedrick v. Mercedes-Benz USA, LLC,
366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005)) (internal quotation marks omitted).
16-CV-1696 W (NLS)
Defendant contends that Plaintiff makes a representation of fact in its reply brief—
buttressed by a declaration filed alongside it—that contradicts allegations made in the
Amended Cross-Complaint. (Compare Reply [Doc. 60] 2:18–23 (“Counterclaimant itself
was the one that provided Brightwell’s subdirectory to the undersigned counsel.”); and
Heinlein Decl. [Doc. 60-1] ¶ 2 (“I went to Mr. McMillan’s office and picked up several
boxes of hard copy files and a disk containing the entire “subdirectory” of files for Ms.
Brightwell’s case.”), with Amended Cross-Complaint [Doc. 51] ¶ 85 (“Joshua Heinlein,
counsel and authorized agent for Counterdefendant[,] disclosed that he had the entirety of
the subdirectory associated with Lee Brightwell. Such subdirectory had not been made
available to Counterdefendant, and the obtaining of that subdirectory was without
Counterclaimant’s knowledge or authorization.”).)
Upon a Rule 12(b)(6) motion to dismiss, the Court assumes true all well-pled
allegations of fact within the operative pleading. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “As a general rule, ‘a district court may not consider any material beyond
the pleadings in ruling on a Rule 12(b)(6) motion.’ ” Lee v. City of Los Angeles, 250
F.3d 668, 688 (9th Cir. 2001). There are two exceptions to this rule—incorporation by
reference, and judicial notice. See id. at 688–89. Defendant does not show that either
applies. As the Court does not consider extrinsic evidence at this stage, allowing further
extrinsic evidence would be both unnecessary and inefficient.
Defendant’s ex parte application for leave to file a sur-reply is DENIED.
IT IS SO ORDERED.
Dated: September 28, 2017
16-CV-1696 W (NLS)
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