SMC Construction Co. v. Rex Moore Group, Inc.

Filing 22

ORDERED that defendant's motion to strike, or in the alternative, for leave to file a sur-reply (ECF No. 21 ) is GRANTED : Defendant Rex Moore Group, Inc. is GRANTED leave to file a brief sur-reply to plaintiff's motion for release of mechanic's lien (ECF No. 5 ) of not more than 7 pages within 5 days of entry of this order. Signed by Judge Larry R. Hicks on 8/30/2017. (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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***

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SMC CONSTRUCTION CO.,

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Plaintiff,
Case No. 3:17-cv-00470-LRH-VPC

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v.
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ORDER
REX MOORE GROUP, INC.;
Defendants.

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Before the court is defendant Rex Moore Group, Inc.’s (“Rex Moore”) motion to strike
or, in the alternative, motion for leave to file a sur-reply. ECF No. 21.
Plaintiff SMC Construction Co. initiated the underlying action against Rex Moore

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seeking a reduction or release of Rex Moore’s recently filed mechanic’s lien and for

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declaratory relief. See ECF No. 1, Ex. 2. Along with its complaint, SMC filed a motion to

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release or reduce mechanic’s lien pursuant to Nev. Rev. Stat. § 108.2275. ECF No. 5. Rex

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Moore filed an opposition (ECF No. 15) to which SMC replied (ECF No. 20). Thereafter, Rex

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Moore filed the present motion to strike SMC’s reply or leave to file a sur-reply. ECF No. 21.

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Pursuant to Rule 12 of the Federal Rules of Civil Procedure, the court may strike a

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filing for “any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f).

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Further, to the extent that a party raises a new argument or proffers new evidence and

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information in a reply brief, that argument or evidence is improper because the opposing party

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is deprived of an opportunity to respond. Tovar v. United States Postal Service, 3 F.3d 1271,
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1273 n.3 (9th Cir. 1993). Therefore, the court cannot consider new evidence provided in a reply

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when the other party does not have an opportunity to respond to the evidence. Provenz v.

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Miller, 102 F.3d 1478, 1483 (9th Cir. 1996).

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Here, the court finds that based on the breadth of new arguments and evidence raised in

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the reply, rather than strike SMC’s reply which provides relevant argument, evidence, and

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context for the court’s ultimate disposition on the underlying motion for release of mechanic’s

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lien, Rex Moore should be granted an opportunity to provide a brief response. See Cedars-Sinai

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Medical Center v. Shalala, 177 F.3d 1126, 1129 (9th Cir. 1999) (a court has the inherent

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authority to grant leave to a party to file a sur-reply when the information would be germane to

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the court’s evaluation of a pending matter). Therefore, the court shall grant Rex Moore’s

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motion with respect to filing a sur-reply.

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IT IS THEREFORE ORDERED that defendant’s motion to strike, or in the alternative,

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for leave to file a sur-reply (ECF No. 21) is GRANTED in accordance with this order.

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Defendant Rex Moore Group, Inc. is GRANTED leave to file a brief sur-reply to plaintiff’s

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motion for release of mechanic’s lien (ECF No. 5) of not more than seven (7) pages within five

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(5) days of entry of this order.

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IT IS SO ORDERED.

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DATED this 30th day of August, 2017.

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_
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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