Phase II Chin, LLC et al v. Forum Shops, LLC et al

Filing 42

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HAROLD P. GEWERTER, ESQ. Nevada Bar No. 499 HAROLD P. GEWERTER, ESQ., LTD. 5440 West Sahara Avenue, Third Floor Las Vegas, Nevada 89146 Telephone: [phone] Facsimile: [phone] C. STANLEY HUNTERTON, ESQ. Nevada Bar No. 5044 HUNTERTON & ASSOCIATES 333 S. Sixth Street Las Vegas, Nevada 89101 Telephone: [phone] Facsimile: [phone] UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ****

E-filed: 09/12/2008

PHASE II CHIN, LLC and LOVE & MONEY, LLC, formerly O.P.M.L.V., LLC, Plaintiffs, v. FORUM SHOPS, LLC, FORUM DEVELOPERS LIMITED PARTNERSHIP, SIMON PROPERTY GROUP LIMITED PARTNERSHIP, SIMON PROPERTY GROUP, INC., CAESARS PALACE CORP, CAESARS PALACE REALTY CORP., DOES 1 through 20, AND ROE CORPORATIONS 1 through 20, Defendants.

Case No. 2:08-cv-00162-JCM-GWF

PLAINTIFFS' JOINT REQUEST TO FILE A SURREPLY TO MOTIONS TO DISMISS FILED BY FORUM SHOPS, LLC, FORUM DEVELOPERS LIMITED PARTNERSHIP, SIMON PROPERTY GROUP LIMITED PARTNERSHIP, SIMON PROPERTY GROUP,
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INC., CAESARS PALACE CORP. AND CAESARS PALACE REALTY CORP. Plaintiffs Phase II Chin, LLC ("Chinois") and Love & Money, LLC (formerly O.P.M.L.V., LLC) respectfully move this Court for an order permitting them to file a Sur-Reply in Further Support of their opposition to Defendants' Motions to Dismiss, filed concurrently with this motion. This motion is based on LR 7-2, the Court's inherent authority to control its own docket and proceedings, the pleadings and documents on file and the memorandum of points and authorities that follows. MEMORANDUM OF POINTS AND AUTHORITIES Local Rule 7.2 addresses motions. While this rule does not specifically provide for the filing of sur-replies, the Court unarguably has the inherent authority to grant leave to file such briefs. See, e.g., Reva Int'l, Inc. v. MBraun, Inc., 2007 U.S. Dist. LEXIS 94821, *20 n. 4 (D. Nev. December 28, 2007) ("Reva could have sought leave to file a sur-reply.") Leave to file a sur-reply should be granted where it would not prejudice any party and where the brief would aid in the decisional process. See Audi AG v. D'Amato, 2007 U.S. Dist. LEXIS 16863, *4 (E.D. Mich. January 3, 2007). In their replies, Defendants have mischaracterized much of the law applicable to the decision of their motions to dismiss, in particular the law regarding claims under 42 U.S.C. § 1981. These mischaracterizations are more efficiently refuted in a short written submission than they could be at oral argument. Filing of Plaintiffs' sur-reply would therefore aid in the decisional process. The granting of this motion would not prejudice Defendants, as they will have the opportunity to review this brief prior to the hearing on the Motions and may address it at the hearing. CONCLUSION For the reasons stated above, Plaintiffs respectfully request that the Court grant its motion /// /// /// ///
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to file the Sur-Reply in Further Support of Its Opposition to Defendants' Motions to Dismiss, submitted concurrently with this motion. A proposed order has been submitted concurrently herewith. Dated: September 12, 2008 HAROLD P. GEWERTER, ESQ., LTD.

/s/ Harold P. Gewerter, Esq. HAROLD P. GEWERTER, ESQ. Nevada Bar No. 499 5440 West Sahara Avenue, Third Floor Las Vegas, Nevada 89146 Attorney for Plaintiff Love & Money, LLC Dated: September 12, 2008 FAGELBAUM & HELLER LLP

/s/ Philip Heller, Esq. Philip Heller, Esq. 2049 Century Park East, Suite 4250 Los Angeles, CA 90067-3254 Counsel for Phase II Chin, LLC C. STANLEY HUNTERTON, ESQ. Nevada Bar No. 5044 333 S. Sixth Street Las Vegas, Nevada 89101 Attorney for Plaintiff, Phase II Chin, LLC
71039\3001\617310.1

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