ORDER ON PLAINTIFF'S EX PARTE APPLICATION FOR ADDITIONAL TIME TO FILE A SUR-REPLY (Doc. No. 41)
On September 1, 2011, this Court gave Plaintiff permission to file
a sur-reply, with special emphasis on the recent Ninth Circuit case of
Oliver v. Ralphs Grocery Co. , - - - F.3d - - -,
2011 U.S. App. LEXIS 17022 (9th Cir. Aug. 17, 2011). See Court's
Docket Doc. No. 40. Plaintiff's counsel represented the plaintiff in
Oliver . The Court set a deadline of September 12,
2011, for Plaintiff to file the sur-reply. *fn1
On September 7, 2011, Plaintiff filed an ex parte application to move the date to file the sur-reply and the response to photographs. Plaintiff's counsel Scottlynn Hubbard declares that he is in the middle of an ERISA trial in the Sacramento federal court that has lasted three weeks and is expected to end September 23, that he is the person who prepares briefs in his office, and he is uniquely suited to address Oliver as he tried and argued the Oliver case. Plaintiff requests a new deadline of October 12, 2011, to file the sur-reply and a date of October 20, 2011, to file responses. Trial is set for October 25, 2011.
The Court will not grant Plaintiff a 30 day extension. The primary purpose for allowing the sur-reply was for Plaintiff to brief the effects of Oliver on this case. That opinion is just over six printed pages (with double columns on each page) in length. Moreover, Plaintiff's counsel is intimately aware of that case since he was Oliver 's counsel. Under these circumstances, giving Plaintiff what amounts to 42 days to brief the effects of the Oliver decision is not reasonable.
The Court understands that one of Plaintiff's counsel is in trail, but given Plaintiff's counsel's intimate knowledge of both this case and Oliver (which again is not a lengthy decision), submitting a sur-reply while dealing with trial is not an insurmountable task. *fn2 The Court will give Plaintiff a brief extension of time, but it will not be close to 30 days. *fn3
Accordingly, IT IS HEREBY ORDERED that Plaintiff's ex parte application is GRANTED in part as follows:
1. The deadline for Plaintiff to file a sur-reply is reset from September 12, 2011, to September 15, 2011;
2. Plaintiff may file a response to the photographs submitted by Defendant on or by September 22, 2011;
3. Defendant may file a response to Plaintiff's sur-reply on or by September 22, 2011; and
4. All other dates and aspects of the Court's September 1, 2011, order (which is Document No. 40 in the Court's docket) remain in place.