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)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
L. LEE BRIGHTWELL,
Case No.: 16-CV-1696 W (NLS)
Plaintiff,
12
13
v.
14
ORDER DENYING EX PARTE
APPLICATION TO FILE A SURREPLY [DOC. 62]
THE MCMILLAN LAW FIRM, APC,
et al.,
15
Defendants.
16
17
18
Defendant The McMillan Law Firm applies ex parte for leave of Court to file a
19
sur-reply in response to Plaintiff’s reply brief in connection with her motion to dismiss.
20
(Reply [Doc. 60].)
21
The Local Rules in this District do not authorize the filing of a sur-reply. Still,
22
district courts have the discretion to either permit or preclude the filing of a sur-reply.
23
See, e.g., Johnson v. Wennes, No. 08-CV-1798-L (JMA), 2009 WL 1161620, at *2 (S.D.
24
Cal. Apr. 28, 2009) (Lorenz, J.). Such discretion “should be exercised in favor of
25
allowing a sur-reply only where a valid reason for such additional briefing exists, such as
26
where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL
27
3031136, at *1 (E.D. Cal. Nov. 8, 2005) (quoting Fedrick v. Mercedes-Benz USA, LLC,
28
366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005)) (internal quotation marks omitted).
1
16-CV-1696 W (NLS)
1
Defendant contends that Plaintiff makes a representation of fact in its reply brief—
2
buttressed by a declaration filed alongside it—that contradicts allegations made in the
3
Amended Cross-Complaint. (Compare Reply [Doc. 60] 2:18–23 (“Counterclaimant itself
4
was the one that provided Brightwell’s subdirectory to the undersigned counsel.”); and
5
Heinlein Decl. [Doc. 60-1] ¶ 2 (“I went to Mr. McMillan’s office and picked up several
6
boxes of hard copy files and a disk containing the entire “subdirectory” of files for Ms.
7
Brightwell’s case.”), with Amended Cross-Complaint [Doc. 51] ¶ 85 (“Joshua Heinlein,
8
counsel and authorized agent for Counterdefendant[,] disclosed that he had the entirety of
9
the subdirectory associated with Lee Brightwell. Such subdirectory had not been made
10
available to Counterdefendant, and the obtaining of that subdirectory was without
11
Counterclaimant’s knowledge or authorization.”).)
12
Upon a Rule 12(b)(6) motion to dismiss, the Court assumes true all well-pled
13
allegations of fact within the operative pleading. See Ashcroft v. Iqbal, 556 U.S. 662,
14
678 (2009). “As a general rule, ‘a district court may not consider any material beyond
15
the pleadings in ruling on a Rule 12(b)(6) motion.’ ” Lee v. City of Los Angeles, 250
16
F.3d 668, 688 (9th Cir. 2001). There are two exceptions to this rule—incorporation by
17
reference, and judicial notice. See id. at 688–89. Defendant does not show that either
18
applies. As the Court does not consider extrinsic evidence at this stage, allowing further
19
extrinsic evidence would be both unnecessary and inefficient.
20
Defendant’s ex parte application for leave to file a sur-reply is DENIED.
21
22
23
IT IS SO ORDERED.
Dated: September 28, 2017
24
25
26
27
28
2
16-CV-1696 W (NLS)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?