Gross v. Whiteman et al

Filing 63

ORDER denying Defendant's ECF No. 59 Motion to Strike. Signed by Magistrate Judge William G. Cobb on 7/1/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HAROLD E. GROSS,

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Case No. 3:14-cv-00365-MMD-WGC
Plaintiff,

v.

ORDER
Re: ECF No. 59

MEGAN MCCLELLAN,
Defendant.

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

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Reply in Support of Defendant’s Cross-Motion for Summary Judgment. (ECF No. 59.)

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Defendant asks the court to strike this surreply filed by Plaintiff.

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Defendant is correct that Local Rule 7-2 regarding motions only contemplates the filing

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of a motion, response, and reply. The court’s local rules also state that surreplies are not

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permitted without leave of court and are discouraged. LR 7-2(b). Defendant acknowledges,

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however, that surreplies have been allowed where the reply brief argues new matters not

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previously addressed in the underlying motion or responsive brief. (ECF No. 59 at 3.)

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Defendant argues, however, that her reply memorandum (ECF No. 57) was confined to

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matters addressed in the prior briefing. This argument ignores that Defendant’s reply brief

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presents new evidence that was not in fact addressed in the prior briefing. Specifically,

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Defendant’s reply brief presents evidence concerning Plaintiff’s prior cellmate, Mr. Parson’s,

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disciplinary history which had not been addressed in the memoranda nor had it been produced to

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Plaintiff in discovery. (ECF Nos. 57 at 6; 57-1 at 3-4.) In addition, the reply brief presented a

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supplemental declaration on behalf of Defendant (ECF No. 57-1). It was reasonable, therefore,

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for Plaintiff to want to respond to Defendant’s previously unaddressed arguments.

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Plaintiff claims he attempted to obtain information in discovery regarding Mr. Parsons’

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disciplinary history, but he states Defendant objected on grounds that it was confidential

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information about another inmate that Plaintiff as an inmate was not allowed to possess. (ECF

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No. 58 at 5, 6, 16.)

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Plaintiff, however, does not provide any specific citation to the record where this

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information was requested in discovery but was denied. On the other hand, Defendant does not

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respond to Plaintiff’s argument that the factual information and representations contained in

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Defendant’s reply memorandum were the subject of Plaintiff’s discovery to which Defendant

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objected on the grounds, as Plaintiff characterizes it, that Parson’s disciplinary history was of a

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“confidential nature” and “inmates were not allowed to possess such information.” (id. at 5.)
Plaintiff also points out the contradiction that Parson’s disciplinary history was not filed

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under seal, thereby “injecting Parson’s disciplinary history into public record.” (id. at 5.) Also,

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Defendant’s memorandum was served upon Plaintiff it its entirety, thereby allowing Plaintiff –

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and the public -- to have access to and possess this allegedly confidential information. (ECF

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No. 57 at 11.)

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There may have been extenuating circumstances which justified the Defendant not

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producing this information in discovery, assuming Plaintiff had requested its production in some

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fashion and assuming Defendant objected to its production as Plaintiff contends. If so, utilizing

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that same objectionable information later in legal briefing is a practice which should not reoccur

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in the future.
CONCLUSION

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While Plaintiff should have sought leave of court before filing the surreply, the court will

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excuse his error on this occasion in light of his pro se status. Plaintiff is advised that in the future

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he is required to seek leave of court before filing briefing beyond a motion, response or reply

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brief. LR 7-2(b)

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The court has considered Plaintiff’s argument of law and fact contained in his opposition

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(“surreply”) to Defendant’s reply memorandum as is addressed in greater detail in this court’s

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Report and Recommendation of this date submitted to District Judge Miranda M. Du.

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As a result, Defendant’s motion to strike (ECF No. 59) is DENIED.

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IT IS SO ORDERED.

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DATED: July 1, 2016.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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