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Pronechen v. Dep't of Homeland Security

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 26, 2010

RONALD L. PRONECHEN, PLAINTIFF,
v.
SECRETARY OF HOMELAND SECURITY, DEFENDANT.

The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior U.S. District Court Judge

ORDER ON DEFENDANT'S MOTION TO STRIKE NEW ARGUMENTS FROM PLAINTIFF'S REPLY BRIEF OR, ALTERNATIVELY, FOR LEAVE TO U.S. DEPARTMENT OF FILE A SUR-REPLY

Plaintiff filed his Reply [83] in support of his Motion to File Second Amended Complaint on January 14, 2010. By minute order [86] entered on January 15, 2010, the Court took plaintiff's motion under submission. On January 15, 2010, defendant Secretary of the Department of Homeland Security ("DHS") filed a Motion to Strike New Arguments from Plaintiff's Reply Brief or, Alternatively, for Leave to File a Sur-Reply [87]. Plaintiff did not file a response to DHS's motion to strike. Having reviewed the reply brief and the motion to strike, and good cause appearing therefore, the Court NOW FINDS AND RULES AS FOLLOWS:

Plaintiff's reply brief raises a new argument that was not included in his Memorandum of Points and Authorities in Support of brief on his Motion to File Second Amended Complaint [80]. In his reply, plaintiff argues for the first time that, upon receipt of a copy of an August 25, 2004 email from plaintiff, the person responsible for processing plaintiff's original EEO claim had an affirmative duty to amend plaintiff's claim to include a new discrimination claim based on his non-selection for the Sacramento position announced in job announcement 0492414. "The district court need not consider arguments raised for the first time in a reply brief." Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (citing Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003)). The Court in its discretion has determined that it will not consider this new argument in support of plaintiff's motion to amend. Therefore,

IT IS HEREBY ORDERED THAT the motion to strike is GRANTED and the following portions of plaintiff's reply brief and supporting documents are hereby stricken from the record:

1. The new argument found at page 3, line 15 through page 4, line 28 of the reply brief [83];

2. The entire supporting exhibit entitled EEOC MD 110 "Chapter 5 - Agency Processing of Formal Complaints" [83-2]; and

3. Paragraph 3.b of the Declaration of Ronald Pronechen in Support of Motion to Amend [84].

20100126

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