UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 7, 2011
ERENDIRA L. DE LOPEZ,
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.
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