Grove et al v. Herrick et al

Filing 23

ORDER granting 22 Motion to Strike or Allow Response. Ordered by Senior Judge Warren K. Urbom. (EJL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANDREA GROVE, and TOM GROVE,
Plaintiffs,
v.
MATTHEW HERRICK, in his official and
individual capacities, MARK CERNY, in
his official and individual capacities, and
THE CITY OF RALSTON, NEBRASKA,
Defendants.

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8:12CV95

MEMORANDUM AND ORDER ON
PLAINTIFFS’ MOTION TO STRIKE OR
ALLOW RESPONSE

On August 3, 2012, the defendants, Matthew Herrick, Mark Cerny, and the City of Ralston,
Nebraska, filed a motion to dismiss the complaint filed by the plaintiffs, Andrea Grove and Tom
Grove. (ECF No. 14.) In support of their motion, the defendants argued that 1) this court should
abstain from deciding the claims presented in the plaintiffs’ complaint and dismiss this case in
deference to an ongoing state action, and 2) the plaintiffs’ claims should be dismissed for failure to
state a claim upon which relief may be granted because the plaintiffs “have [pleaded] nothing more
than mere negligence, which is not actionable under the United States Constitution.” (Defs.’ Br. at
3, 6, ECF No. 16.) The plaintiffs responded to the defendants’ arguments in a brief filed on August
27, 2012. (See generally Pls.’ Br., ECF No. 17.) On September 20, 2012, the defendants filed a reply
brief in support of their motion to dismiss. (ECF No. 21.) In Section II of this reply brief, the
defendants argued for the first time that “Tom Grove lacks standing to assert a claim under § 1983
and his action for purported violations of his civil rights should accordingly be dismissed for failure
to state a cognizable claim upon which relief can be granted.” (Id. at 4.) Now before me is the
plaintiffs’ motion to strike Section II of the defendants’ reply brief, or in the alternative, to permit
the plaintiffs to file a response to the defendants’ new argument. (ECF No. 22.) The defendants
have not responded to the plaintiffs’ motion.

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This court’s local rules state that a reply brief “must address factual or legal issues raised in
the opposing brief.” NECivR 7.0.1(c). The argument presented in Section II of the defendants’ reply
brief introduces a new legal issue that was not raised in the plaintiffs’ response brief or in the
defendants’ opening brief. Thus, Section II does not comply with Nebraska Civil Rule 7.0.1(c), and
it shall not be considered.
IT IS ORDERED that the plaintiffs’ motion to strike Section II of the “Defendants’ Reply
Brief in Support of Motion to Dismiss,” (ECF No. 22), is granted; the plaintiffs’ alternative motion
for leave to file a supplemental brief, (ECF No. 22), is denied as moot.
Dated November 7, 2012.
BY THE COURT

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Warren K. Urbom
United States Senior District Judge

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