Whitewater West Industries, LTD. v. Pacific Surf Designs, Inc. et al

Filing 149

ORDER denying 99 Plaintiff's Ex Parte Application for Leave to File a Sur-Reply or, in the Alternative, to Strike Newly Submitted Evidence. The Court hereby Denies Whitewater's Ex Parte Application for Leave to File a Sur-Reply. The Court further Denies Whitewater's Request to Strike Newly Submitted Evidence. The Motion for Summary Judgment remains under submission. Signed by Judge Roger T. Benitez on 6/25/2018. (anh)

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FILED
JUN 2 6 2018

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CLERK US DISTRICT COURT
SOUTHE
DUSTRICT OF CALIFORNIA
£,;....DEPUTY
BY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WHITEWATER WEST INDUSTRIES,
LTD., a Canadian corporation,
Plaintiff,

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v.
PACIFIC SURF DESIGNS, INC., a
Delaware corporation, and FLOW
SERVICES, INC., a California
corporation,

CaseNo.: 3:17-cv-01118-BEN-BLM

ORDER DENYING PLAINTIFFS' EX
PARTE APPLICATION FOR LEAVE
TO FILE A SUR-REPLY OR, IN THE
ALTERNATIVE, TO STRIKE
NEWLY SUBMITTED EVIDENCE
[Doc. No. 99]

Defendants.

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On March 30, 2018, Plaintiff Whitewater West Industries, Ltd. ("Whitewater")

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filed an Ex Parte Application for Leave to File Sur-Reply. Pacific Surf Designs, Inc.

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("PSD") and Flow Services, Inc. ("Flow Services") (collectively "Defendants") filed an

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Opposition on April 2, 2018. (Doc. No. 100.) Courts generally view motions for leave to

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file a sur-reply with disfavor. Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. Nov.

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8, 2005). However, permitting the filing of a sur-reply is within the discretion of the

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district court. Schmidt v. Shah, 696 F. Supp. 2d 44, 60 (D.D.C. 2010) ("The decision to

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grant or deny leave to file a sur-reply is committed to the sound discretion of the court."

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"Although the court in its discretion [may] allow the filing of a sur-reply, this discretion

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should be exercised in favor of allowing a sur-reply only where a valid reason for such

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additional briefing exists." Johnson v. Wennes, No. 08-cv-1798, 2009 WL 1161620, at

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*2 (S.D. Cal. April 28, 2009). Neither the federal rules nor the local rules permit a sur-

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reply as a matter of course.

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Whitewater contends its sur-reply is necessary to enable it to address new evidence

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submitted by Defendants in their Reply in support of the Motion for Summary Judgment.

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(Doc. No. 91.) Specifically, Defendants submitted five new exhibits (Ex. BB, CC, EE,

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GG, HH), four of which were available at the time the motion was filed. Whitewater also

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claims the Defendants rely on portions of previously submitted evidence that was not

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cited or addressed in the motion. (Ex. DD.)
Defendants argue Whitewater's proposed Sur-Reply demonstrates "it cannot defeat

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Defendants' motion on the merits, and must instead resort to procedural chicanery."

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(Doc. No. 100 at 2.) Defendants claim Whitewater wrongly asserts PSD and Flow

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Services are categorically barred from introducing their new (due to Whitewater's late

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production) exhibits with their reply brief to show inconsistencies in Whitewaters'

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argument. (Id.) Moreover, Defendants contend that Section III of Plaintiffs Sur-Reply

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has nothing to do with PSD's new exhibits, and is a wholly separate section of argument

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attempting to explain inconsistencies in Whitewater's positions.

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Having reviewed the parties' memoranda and with a firm grasp of their asserted

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positions, the Court does not find a valid reason to allow Whitewater to file its Sur-Reply.

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To begin with, the Court disagrees with Whitewater's characterization of Defendant's

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exhibits as presenting new evidence. Exhibit "CC" was merely a close-up, higher

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resolution version of an exhibit produced by Whitewater on March 6, 2018. (Doc. No.

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100-2.) Further, Exhibits "BB, DD, EE, FF, GG, and HH" are duplicates or portions of

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prior exhibits. (Id.) From the Court's view, Defendants reply and attached exhibits

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merely respond to the arguments raised by Whitewater in their opposition, which is in

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keeping with the nature and purpose of a response. The Court finds that Defendant's

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reply and exhibits are not misleading, nor do they present new argument[s], but rather
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1 provide a counter response to Whitewater's allegations. Moreover, the Court finds that
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Whitewater's request for leave to file a sur-reply is merely an attempt to have the last

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word on this issue. This is precisely why Courts so thoroughly disfavor requests to file

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sur-replies.

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Going forward, the Court suggests the parties put aside whether this exercise was

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necessary, or whether the Court's resources are best spent policing the scope of the

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parties' already-voluminous filings. See Mission Power Eng 'g Co. v. Cont 'l Cas. Co.,

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883 Supp. 488, 491-92 (C.D. Cal. 1995) ("When an ex parte motion is filed ... the judge

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drops everything," expecting that the "tomatoes are about to spoil or the yacht is about to

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leave the jurisdiction and that all will be lost unless immediate action is taken."). The

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parties seem to have forgotten that "A district court may refuse to consider new

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[arguments or] evidence submitted for the first time in a reply ifthe evidence should have

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been presented" earlier. See Wallace v. Countrywide Home Loans, Inc., SACV 08-1463

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AG (MLGx), 2009 WL 4349534, at *7 (C.D. Cal. Nov. 23, 2009); cf Provenz v. Miller,

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102 F.3d 1478, 1483 (9th Cir. 1996.) To avoid the additional acrimony, cost, and effort

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of filing a sur-reply (and the potential request to file a sur-sur-reply), the Court will

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simply exercise its discretion to ignore any improper material that may or may not have

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been included in the papers. Three rounds of briefs are enough. Replies to replies to

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replies are too much.

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Accordingly, the Court hereby DENIES Whitewater's Ex Parte Application for

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Leave to File a Sur-Reply. The Court further DENIES Whitewater's Request to Strike

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Newly Submitted Evidence. The Motion for Summary Judgment remains under

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submission.

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IT IS SO ORDERED.

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