COCKRUM et al v. DONALD J. TRUMP FOR PRESIDENT, INC. et al

Filing 46

MOTION for Leave to File Surreply by ROY COCKRUM, SCOTT COMER, ERIC SCHOENBERG (Attachments: # 1 Exhibit Proposed Surreply, # 2 Text of Proposed Order)(Berwick, Benjamin)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROY COCKRUM, SCOTT COMER, and
ERIC SCHOENBERG,
Plaintiffs,
v.
DONALD J. TRUMP FOR PRESIDENT,
INC., and ROGER STONE,
Defendants.

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) Civil Action No. 1:17-cv-1370-ESH
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PLAINTIFFS’ MOTION FOR LEAVE TO FILE SURREPLY
Plaintiffs respectfully request permission to file a short (eight-page) surreply brief in
opposition to Defendants’ motions to dismiss. The proposed brief is attached as Exhibit A.
Pursuant to Rule 7(m), the undersigned counsel conferred with counsel for Defendants, who
represented that Defendants oppose this request.
Whether or not to allow a surreply to be filed in any particular case is left to the court’s
discretion. See, e.g., Banner Health v. Sebelius, 905 F. Supp. 2d 174, 187 (D.D.C. 2012).
Although surreplies are generally disfavored, in exercising that discretion, courts often consider
“whether the movant’s reply in fact raises arguments or issues for the first time, whether the
nonmovant’s proposed surreply would be helpful to the resolution of the pending motion, and
whether the movant would be unduly prejudiced were leave to be granted.” Id.
Plaintiffs’ proposed surreply brief satisfies this standard. It does not address all—or even
a majority—of the arguments raised in Defendants’ reply briefs. Plaintiffs seek leave to file a
surreply for the limited purpose of addressing a handful of arguments that are raised or
emphasized for the first time in Defendants’ reply briefs, that Plaintiffs believe will aid the Court
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in resolving the motions to dismiss, or both. In particular, the proposed surreply briefly addresses
four discrete arguments made in Defendants’ reply briefs.1 Nor does the filing of a surreply
unduly prejudice Defendants. Defendants have filed four briefs in support of their motions to
dismiss that total approximately 132 pages, while Plaintiffs have filed a single brief of 70 pages
and seek leave to file only eight additional pages.2 As such, Plaintiffs ask that the Court grant
their request to file a surreply.
Date: January 19, 2018

/s/ Benjamin L. Berwick
BENJAMIN L. BERWICK (D.D.C. Bar No. MA0004)
United to Protect Democracy
10 Ware St.
Cambridge, MA 02138
[phone]
[e-mail]
IAN BASSIN (NY Attorney Reg. No. 4683439)
United to Protect Democracy
222 Broadway
New York, NY 10038
[phone]
[e-mail]
JUSTIN FLORENCE (D.C. Bar No. 988953)
[e-mail]
ANNE TINDALL (D.C. Bar. No. 494607)
[e-mail]
United to Protect Democracy
2020 Pennsylvania Ave. NW, #163
Washington, DC 20006
[phone]
NANCY GERTNER (MA Bar No. 190140)
Fick & Marx
100 Franklin Street, 7th floor
Boston, MA 02110

1

While Plaintiffs would be content to address these issues at oral argument, the Court has not yet
scheduled argument and may choose to resolve the pending motions without one.
2

These totals do not include the additional four briefs totaling approximately 45 pages that
Defendants have filed in connection with their Anti-SLAPP motions, compared to a single 11page brief filed by Plaintiffs.
2

[phone]
[e-mail]
RICHARD PRIMUS (D.C. Bar No. 472223)
The University of Michigan Law School*
625 S. State Street
Ann Arbor, MI 48109
[phone]
[e-mail]
STEVEN A. HIRSCH (CA Bar No. 171825)
Keker, Van Nest & Peters LLP
633 Battery Street
San Francisco, CA 94111-1809
[phone]
[e-mail]
* For identification purposes.
Counsel for Plaintiffs

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