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Erendira L. De Lopez v. Michael Astrue

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 7, 2011

ERENDIRA L. DE LOPEZ,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING MOTION TO FILE SUR-REPLY (Doc. 15)

Defendant, Michael J. Astrue, Commissioner of Social Security, moves for leave to file a sur-reply to provide additional authority to counter Plaintiff's contention, first made in her reply brief, that no rule provides that the record closes when the administrative hearing ends. Because a court should not consider arguments first raised in a reply brief, this Court denies the Commissioner's motion.

Filing of a sur-reply is unauthorized. Mesa Grande Band of Mission Indians v. Salazar, 657 F.Supp.2d 1169, 1172 (S.D.Cal. 2009). When a party raises new evidence in a reply brief, fairness requires that the opposing party be granted an opportunity to respond. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). But raising new arguments in a reply brief is improper. Competitive Technologies v. Fujitsu Limited, 286 F.Supp.2d 1118, 1139 n. 15 (N.D.Cal. 2003). When a party raises one or more new arguments in its reply brief, a sur-reply serves little purpose since argumentsnot raised in an opening brief generally are deemed waived. Mesa Grande Band, 657 F.Supp.2d at 1172; United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2007).

Therefore, this Court hereby denies the Commissioner's motion to file a sur-reply.

IT IS SO ORDERED.

20110307

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