United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' EX PARTE REQUEST TO
FILE SURREPLY IN SUPPORT OF OPPOSITION TO PLAINTIFFS'
MOTION FOR PRELIMINARY INJUNCTION [ECF NO. 52]
Cynthia Bashant United States District Judge
before the Court is an ex parte motion filed by
Defendants to file a surreply in support of their opposition
to Plaintiffs' motion for a preliminary injunction. (ECF
No. 52.) Plaintiffs filed a reply brief in support of their
motion for a preliminary injunction (ECF No. 51) with 22 new
exhibits (ECF No. 51-2), and a reply brief to CAIR-CA's
amicus curiae brief (ECF No. 50). Defendants seek to
file a surreply to respond to the new evidence submitted by
Plaintiffs. (ECF No. 52 at 2.) Plaintiffs oppose the motion.
(ECF No. 53.) For the reasons herein, the Court grants
Defendants' ex parte motion.
decision to grant or deny leave to file a surreply is
committed to the “sound discretion” of the court.
See Brady v. Grendene USA, Inc., No.
3:12-cv-0604-GPC-KSC, 2015 WL 6828400, at *3 (S.D. Cal. Nov.
6, 2015); United States v. Venture One Mortg. Corp.,
No. 13-CV-1872 W (JLB), 2015 WL 12532139, at *2 (S.D. Cal.
Feb. 26, 2015). Such discretion “should be exercised in
favor of allowing a surreply only when a valid reason for
such additional briefing exists, . . .” Hill v.
England, No. CVF05869RECTAG, 2005 WL 3031136, at *1
(E.D. Cal. Nov. 8, 2005). Discretion to grant leave to file a
surreply is proper when a party has submitted new evidence
with its reply brief. “[T]he district court may decline
to consider new evidence or arguments raised in reply, and
generally ‘should not consider the new evidence without
giving the non-movant an opportunity to respond.'”
Townsend v. Monster Beverage Corp., No.
EDCV122188VAPKKX, 2018 WL 1662131, at *11 (C.D. Cal. Mar. 20,
2018) (quoting Provenz v. Miller, 102 F.3d 1478,
1483 (9th Cir. 1996) and citing Deirmenjian v. Deutsche
Bank, A.G., No. CV 06-00774 MMM (CWx), 2006 WL 4749756,
at *6 n. 52 (C.D. Cal. Sept. 25, 2006)).
Plaintiffs have submitted 22 exhibits with their reply brief
that were not included with their motion for a preliminary
injunction. (ECF No. 51-2.) The Court's expedited
discovery order contemplated that Plaintiffs could file new
evidence with their reply based on documents produced by
Defendants. (ECF No. 28.) Plaintiffs' inclusion of new
evidence in their reply was thus not improper. But it also
provides a valid reason for Defendants' request to file a
surreply to respond to the new exhibits.
however, contend that the evidence submitted with their reply
is not “new” to Defendants because Defendants
produced the documents and, therefore, the information was
available to them before they opposed Plaintiffs'
preliminary injunction motion. (ECF No. 53 at 3-4.) This
argument is unavailing. The question whether evidence is new
for the purpose of assessing the propriety of a surreply is
about whether that evidence was introduced for the first time
in a reply brief. See, e.g., Hodes & Nauser,
MDs, P.A. v. Moser, No. 2:11-cv-02365-CM-KMH, 2011 WL
4553061, at *1 n.2 (D. Kan. Sept. 29, 2011) (“[T]he
entirety of the surreply is properly before the court given
the new evidence in AAPLOG's reply brief) (citing
Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir.
2005) (indicating that a surreply is proper when a party
presents new evidence in a reply brief)). The fact the party
seeking to file a surreply produced the evidence in discovery
does not make the evidence any less new for the purposes of a
surreply. Cf. Provenz, 102 F.3d at 1483 (considering
response to new evidence submitted in reply in support of a
motion for summary judgment).
Plaintiffs' argument that they are entitled “to
make the final argument” on their preliminary
injunction motion and to permit otherwise would be
“unfair” misses the mark. (ECF No. 53 at 2.) The
question of fairness focuses on fairness to the nonmoving
party. While it may be true that surreplies “usually
are a strategic effort by the nonmoving party to have the
last word on a matter, ” Liberty Legal Found. v.
Nat'l Dem. Party of the USA, Inc., 875 F.Supp.2d
791, 797 (W.D. Tenn. 2012), the inclusion of new evidence by
a moving party in a reply “vitiate[s]” the
nonmoving party's “opportunity to effectively
respond” if a court does not permit a surreply,
tailored to addressing that new evidence. See, e.g., In
re Walsh Constr. Co., No. 3:15-CV-648-TBR, 2018 WL
1411267, at *2 (W.D. Ky. Mar. 21, 2018). Here, the Court
finds that it is in the interest of fairness to permit
Defendants to file a surreply, given the 22 new exhibits.
foregoing reasons, the Court GRANTS
Defendants' request to file a surreply in support of
their opposition to Plaintiffs' motion for a preliminary
injunction. (ECF No. 52.) Defendants may file a
reply, not to exceed 10 pages, no later than May 15, 2018. No
extensions of this deadline will be granted.
shall limit their reply to responding to Plaintiffs' new
exhibits and should take care not to reiterate arguments
already made in their opposition (ECF No. 32), to the extent
possible. To prevent an endless pursuit of briefing,
Defendants shall not file new
exhibits with their surreply, nor should they raise new legal
arguments. Moreover, Defendants may not circumvent the
Court's prior order denying their previous ex
parte motion to file a reply to CAIR-CA's amicus
curiae brief (ECF No. 45.) The Court will disregard any
arguments in Defendants' surreply to that effect,
including any arguments made in response to Plaintiffs'
reply to CAIR-CA's amicus curiae brief.
Court further advises both parties that no
additional briefing on Plaintiffs' pending motion for a
preliminary injunction (ECF No. 26) will be