Pinedo v. City of Dallas et al

Filing 68

MEMORANDUM OPINION AND ORDER denying 67 MOTION for Leave to File Surreply filed by Gerardo Pinedo, Sr. (Ordered by Judge Sidney A Fitzwater on 4/8/2015) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GERARDO PINEDO, SR.,
INDIVIDUALLY AND ON BEHALF OF
THE ESTATE OF GERARDO PINEDO,
JR.,
Plaintiff,
VS.
THE CITY OF DALLAS, TEXAS, et al.,
Defendants.

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§ Civil Action No. 3:14-CV-0958-D
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MEMORANDUM OPINION
AND ORDER
Plaintiff’s April 5, 2015 opposed emergency motion for leave to file surreply is denied.*
Although the court often allows the filing of a surreply and then a final reply, compare
Springs Industries, Inc. v. American Motorists Insurance Co., 137 F.R.D. 238, 240 (N.D. Tex. 1991)
(Fitzwater, J.), the court concludes that plaintiff’s surreply should not be allowed. First, plaintiff
is relying on materials outside his second amended complaint that clearly are not to be considered
when deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Second, plaintiff is essentially
attempting to support his request for leave to amend, if the court determines that the motion to
dismiss should be granted. This is a decision to be made under a standard that does not require
(assuming it permits) consideration of the extensive materials on which plaintiff now relies. This
court has frequently stated that district courts often afford plaintiffs at least one opportunity to cure

*

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written opinion”
adopted by the Judicial Conference of the United States, this is a “written opinion[] issued by the
court” because it “sets forth a reasoned explanation for [the] court’s decision.” It has been written,
however, primarily for the parties, to decide issues presented in this case, and not for publication in
an official reporter, and should be understood accordingly.

pleading deficiencies before a dismissing case, unless it is clear that the defects are incurable or the
plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid
dismissal. See, e.g., In re Am. Airlines, Inc., Privacy Litig., 370 F.Supp.2d 552, 567-68 (N.D. Tex.
2005) (Fitzwater, J.). “At least one opportunity” does not mean only one opportunity. Accordingly,
if the court grants defendant’s March 2, 2015 motion to dismiss, it will consider whether to grant
plaintiff leave to amend. Because plaintiff has not said that he is unwilling or unable to amend in
a manner that will avoid dismissal—indeed, he has said the opposite—this decision will be made
based on whether the court concludes that it is clear that the defects in his second amended
complaint are incurable.
SO ORDERED.
April 8, 2015.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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