Ocwen Loan Servicing, LLC v. Borgert

Filing 24

ORDER Granting in part and Denying in part Defendant's 16 Motion to Strike. Plaintiff may file a surreply no later than 4/13/2017. Signed by Magistrate Judge Carl W. Hoffman on 4/6/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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OCWEN LOAN SERVICING, LLC,

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Plaintiff,
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v.
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ANTHONY BORGERT,
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Defendant.
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_______________________________________ )

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Case No. 2:16-cv-02079-JCM-CWH

ORDER

Presently before the Court is Plaintiff’s motion to strike or alternately for leave to file
surreply (ECF No. 16), filed on March 15, 2017. Defendant has not filed a response.

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Plaintiff argues that Defendant’s reply to the pending motion to dismiss (ECF No. 15) was

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improper because it raised certain arguments for the first time, without giving Plaintiff an

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opportunity to respond. Specifically, Plaintiff objects to Defendant’s arguments regarding Nevada’s

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test for claim preclusion and issue preclusion.

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As Plaintiff notes, arguments raised for the first time in a reply brief may be ignored by the

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Court. Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010). This is to avoid the need for a

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surreply, which are disfavored, but permissible with leave of the court. Local Rule 7-2(b). Upon

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review, the Court finds that Defendant’s reply did not raise claim and issue preclusion arguments for

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the first time; they were responsive to arguments made in Plaintiff’s response. The Court does not

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find cause to strike these arguments. However, as the reply did contain further development of these

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arguments, the Court will grant Plaintiff’s motion for leave to file a surreply.

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IT IS THEREFORE ORDERED that Defendant’s motion (ECF No. 16) is GRANTED in part
and DENIED in part. Plaintiff may file a surreply on the above issues no later than April 13, 2017.

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DATED: April 6, 2017.

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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