Smith v. Homes et al

Filing 102

ORDER GRANTING # 94 Motion to Strike : Plaintiff's # 93 Sur-reply shall be STRICKEN from the record. Signed by Magistrate Judge William G. Cobb on 12/11/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIE SMITH,

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3:13-cv-00202-MMD-WGC
Plaintiff,

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v.

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ORDER

HOMES, et. al.,

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Re: ECF No. 94

Defendants.

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Before the court is Defendants’ Motion to Strike Plaintiff’s Opposition Motion to

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Defendants’ Reply. (ECF No. 94.)1 Plaintiff filed a response (ECF No. 95) and Defendants filed

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a reply (ECF No. 96). Plaintiff then filed an opposition to Defendant’s reply brief. (ECF No. 97.)

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Defendants seek to strike a sur-reply (ECF No. 93) filed by Plaintiff in response to

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Defendants’ reply brief in support of their motion for summary judgment.
Plaintiff argues that because Defendants asserted in their motion that the failure to give

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Plaintiff all pages of his case notes printout was a clerical error, he was entitled to respond. (ECF

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No. 95 at 2.)

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In his opposition to Defendants’ reply brief (ECF No. 97), he includes a belated request
for leave to file his sur-reply (ECF No. 93)
Local Rule 7-2 contemplates the filing of a motion, response and reply. No provision

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exists for filing a sur-reply; therefore, a party must obtain leave of court do so. “’A sur-reply may

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only be filed by leave of court, and only to address new matters raised in a reply to which a

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party would otherwise be unable to respond.’” Enriquez v. Red Rock Financial Services, LLC,

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2015 WL 1186570 (D. Nev. Mar. 16, 2015) (quoting Kanvick v. City of Reno, No. 3:06-cv-

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00058, 2008 WL 873085, at * 1, n. 1 (D. Nev. Mar. 27, 2008)). Further, sur-replies “are highly

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Refers to court’s electronic case filing (ECF) number.

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disfavored, as they usually are a strategic effort by the nonmovant to have the last word on a

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matter.” Id. (citation and quotation marks omitted).

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Here, Plaintiff did not timely request leave of court to file a sur-reply. Even if Plaintiff

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had sought leave of court, the court would not have permitted the filing of the sur-reply. While

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Defendants’ reply brief did address Plaintiff’s argument for sanctions and the exclusion of an

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exhibit filed in support of Defendants’ motion, Plaintiff’s sur-reply did not substantively respond

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to that argument. It repeated the arguments he made on this topic in his opposition brief. In

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addition, it repeated arguments concerning Plaintiff’s claims that were asserted in Plaintiff’s

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opposition brief.

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For these reasons, the court finds good cause to strike the sur-reply from the record.

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Defendants’ motion to strike (ECF No. 94) is GRANTED, Plaintiff’s sur-reply (ECF No. 93)

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shall be STRICKEN from the record.

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IT IS SO ORDERED.

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DATED: December 11, 2015.

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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