Cox et al v. Office of the Federal Detention Trustee et al

Filing 114

ORDER that Defendants Motion for Leave to File a Surreply in Support of its Opposition to Plaintiffs Motion to Supplement the Record 108 . Defendant shall have seven (7) days from the filing of this Order to File its Surreply. Signed by Judge David A. Ezra on 10/24/11. (Copies have been distributed pursuant to the NEF - ECS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
CONCERNED CITIZENS FOR A
SAFE COMMUNITY; DONNA
COX; ANTHONY COX; DAVID
CARROLL; and NANCY LORD,

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)
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Plaintiffs,
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)
vs.
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OFFICE OF FEDERAL
)
DETENTION TRUSTEE ,
)
)
Defendant.
)
_____________________________ )

CV. NO. 09-01409 DAE

ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO FILE
SURREPLY IN SUPPORT OF ITS OPPOSITION TO PLAINTIFFS’ MOTION
TO SUPPLEMENT THE RECORD
Pursuant to Local Rule 78-2, the Court finds this matter suitable for
disposition without a hearing. After reviewing Defendant’s motion and the
supporting and opposing memoranda, the Court GRANTS Defendant’s Motion for
Leave to File a Surreply in Support of its Opposition to Plaintiffs’ Motion to
Supplement the Record. (Doc. # 108.)
On March 11, 2011, Plaintiffs filed a Motion to Supplement the
Record. (Doc. # 105.) Plaintiffs seek to enter the following three exhibits into the
administrative record: (1) Affidavit of Alfred Balloqui dated October 23, 2009, (2)

Affidavit of Paula Glidden dated October 23, 2009, and (3) Transcript of
deposition testimony of Paula Glidden in Kukin v. Town of Pahrump, Case No.
2:09-cv-02261.1 (Id. at 1–2.) The two affidavits were attached to Plaintiffs’
Motion but the deposition transcript was not produced until Plaintiffs’ filed their
Reply. (See Docs. ## 105-2, 105-3, 107-1.) Notably, Plaintiffs’ Motion did not
cite to, or otherwise address, the legal standard for supplementing an
administrative record.
On March 24, 2011, Defendant filed an Opposition to Plaintiffs’
Motion, asserting that the Motion should be denied because Plaintiffs failed to
meet the legal standard for supplementing an administrative record for purposes of
reviewing an agency decision. (Doc. # 106.) Specifically, Defendant argued that
Plaintiffs failed to establish that the administrative record is incomplete or that any
one of the four exceptions to the administrative record review doctrine applies.
(Id. at 2.)
On March 30, 2011, Plaintiffs filed a Reply in Support of its Motion.
(Doc. # 107.) In its Reply brief, Plaintiffs addressed for the first time the legal
standard for supplementing an administrative record. (Id. at 4–7.) Plaintiffs

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Plaintiffs initially sought to admit a fourth exhibit containing a form letter.
However, Plaintiffs subsequently withdrew their motion with respect to that exhibit
because the letter is already a part of the administrative record.
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specifically argued that three out of the four exceptions to the administrative record
review doctrine, including the exception for bad faith or improper behavior by the
agency, applies to the case at bar. (Id. at 5.) Plaintiffs also relied heavily on a case
that was not cited in Plaintiffs’ Motion. (Id. at 6–7.) Additionally, Plaintiffs
attached to their Reply the transcript of Paula Glidden that had become available
since the filing of their Motion. (Doc. # 107-1.)
On April 6, 2011, Defendant filed the instant Motion for Leave to file
a Surreply to respond to the new issues raised by Plaintiffs for the first time in their
Reply. (Doc. # 108.) On April 16, 2011, Plaintiffs filed an Opposition to
Defendant’s Motion. (Doc. # 109.)
In light of the new arguments, case law, and exhibit set forth in
Plaintiffs’ Reply in Support of their Motion to Supplement the Record, the Court
concludes that good cause exists to allow Defendant to file a Surreply. See
Heffelfinger v. Electronic Data Systems Corp., 580 F. Supp. 2d 933, 966 n.116
(C.D. Cal. 2008) (stating that the Court’s exercise of discretion in favor of
allowing a surreply is appropriate where the movant raises new arguments in its
reply brief).
Accordingly, Court GRANTS Defendant’s Motion for Leave to File
a Surreply in Support of its Opposition to Plaintiffs’ Motion to Supplement the
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Record. (Doc. # 108.) Defendant shall have seven (7) days from the filing of this
Order to File its Surreply.

IT IS SO ORDERED.
DATED: Las Vegas, Nevada, October 24, 2011.
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_____________________________
DAVID ALAN EZRA
UNITED STATES DISTRICT JUDGE

Concerned Citizens For A Safe Community, et al., v. Office of Federal Detention
Trustee, CV No. 09-01409; ORDER GRANTING DEFENDANT’S MOTION
FOR LEAVE TO FILE SURREPLY IN SUPPORT OF ITS OPPOSITION TO
PLAINTIFFS’ MOTION TO SUPPLEMENT THE RECORD

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