Perez v. Trax Retail, Inc. et al

Filing 53

ORDER Denying Plaintiffs' Ex Parte Application to File Sur-Reply 51 Motion for Leave to File. Signed by Judge Linda Lopez on 3/11/2025. (bdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANA PEREZ, an individual, et al., on
behalf of herself and all others similarly
situated,

Case No.: 24cv333-LL-DDL
ORDER DENYING PLAINTIFFS’ EX
PARTE APPLICATION TO FILE
SUR-REPLY

Plaintiffs,
v.
TRAX RETAIL, INC., a
corporation and Does 1-50,

[ECF No. 51]

Delaware
Defendants.

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Before the Court is Plaintiffs’ Ex Parte Application for Leave to File Sur-Reply in

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connection with Defendants’ Motion to Compel Arbitration, Dismiss Class Allegations,

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and Stay PAGA Proceedings. ECF No. 51. The reason for Plaintiffs’ request is because

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they will purportedly “suffer irreparable harm if they are not allowed to provide additional

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briefing addressing the arguments presented in Defendants’ Reply regarding the operative

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Independent Contractor Agreement and the Arbitration Agreement contained therein.” Id.

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(citing Melmed Decl. ¶ 3). Plaintiffs state that they “timely filed their opposition [to

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Defendants’ Motion to Compel] on February 21, 2025, but mistakenly attached the

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outdated alleged Independent Contractor Agreement.” Id. Plaintiffs further state that

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“Defendants filed their Reply on February 28, 2025, pointing out this error.” Id. Defendants

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filed an Opposition to Plaintiffs’ Ex Parte Application on March 4, 2025 stating that

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Plaintiffs’ Ex Parte Motion should be denied because: (1) Plaintiffs failed to comply with
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24cv333-LL-DDL

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the Court rules for Ex Parte relief; (2) sur-replies are disfavored; (3) Plaintiffs cannot show

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excusable neglect; and (4) Plaintiffs will not suffer prejudice. ECF No. 52. For the reasons

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stated below, the Court DENIES Plaintiffs’ Ex Parte Motion.

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Because neither the Federal Rules of Civil Procedure nor this District's Local Rules

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provide litigants a right to file a sur-reply, which leaves the question of whether to “permit

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the filing of a sur-reply within the discretion of the district court.” Whitewater W. Indus.,

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Ltd. v. Pac. Surf Designs, Inc., 2018 WL 3198800, at *1 (S.D. Cal. June 26, 2019).

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Allowing the filing of a sur-reply is within the discretion of the district court, “but only

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where a valid reason for such additional briefing exists.” Nat'l Cas. Co. v. Nat’l Strength

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and Conditioning Ass’n, 2020 WL 2991508, at *1 (S.D. Cal. June 4, 2020) (quoting

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Whitewater W. Indus., 2018 WL 3198800, at *1).

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Here, the Court agrees with Defendant that the Reply does not raise any new facts

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or arguments, which would be one valid reason to allow a movant’s request for a surreply.

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See United States v. Venture One Mortg. Corp., 2015 WL 12532139, at *2 (S.D. Cal. Feb.

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26, 2015). Additionally, although Plaintiffs seek to supplement their briefing to address

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specific provisions of the operative Arbitration Agreement, the Court finds that Plaintiffs

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have already clarified the record to state that it is their position that even the applicable

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Arbitration Agreement “remains substantively and procedurally unconscionable.” ECF No.

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51 at ¶ 5. Plaintiffs state that “Defendants’ Independent Contractor Agreement is Invalid,

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Regardless of the Version, Rendering the Arbitration Agreement Therein Unenforceable

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and Inseverable.” Id. at ¶ 4. At this time, the Court finds it unnecessary to allow Plaintiffs

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to file a Sur-Reply. To the extent the Court determines that it needs additional briefing

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from Plaintiffs on this issue upon further review of the Motion to Compel Arbitration, the

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Court will order additional briefing at that time.

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IT IS SO ORDERED.

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Dated: March 11, 2025

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