(HC) Ellis v. Warden of Central California Women's Facility ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KATHRYN ANN ELLIS, Case No. 1:19-cv-200-LJO-JDP 12 Petitioner, ORDER GRANTING IN PART PETITIONER’S MOTION FOR LEAVE TO 13 v. FILE SURREPLY 14 WARDEN OF CENTRAL CALIFORNIA ECF No. 18 WOMEN’S FACILITY, 15 Respondent. 16 17 18 Petitioner Kathyrn Ann Ellis, a state prisoner represented by counsel, seeks a writ of 19 habeas corpus under 28 U.S.C. § 2254. ECF No. 1. Respondent filed a motion to dismiss, ECF 20 No. 11, petitioner filed an opposition to the motion to dismiss, ECF No. 13, and respondent filed 21 a reply, ECF No. 17. On September 4, 2019, petitioner filed a “request to file a rejoinder” to 22 respondent’s reply brief.1 ECF No. 18. Respondent did not object to petitioner’s request. The 23 court construes petitioner’s request as a motion for leave to file a surreply. 24 Neither the Local Rules of this court nor the Federal Rules of Civil Procedure provide the 25 right to file a surreply. Local Rule 230 provides for a motion, an opposition, and a reply. The 26 court “generally views motions for leave to file a surreply with disfavor.” Garcia v. Biter, 195 F. 27 1 Petitioner is directed to label any future request as a “motion.” If petitioner has any questions 28 regarding proper filing procedures, she may contact the clerk’s office. 1 | Supp. 3d 1131, 1134 (E.D. Cal. 2016). A district court may allow a surreply to be filed, but only 2 | “where a valid reason for such additional briefing exists, such as where the movant raises new 3 | arguments in its reply brief.” Hill v. England, No. CV-F-05-869 REC/TAG, 2004 U.S. Dist. WL 4 | 3031136, at *1 (E.D. Cal. Nov. 8, 2005) (citing Fedrick v. Mercedes-Benz USA, LLC, 366 F. 5 | Supp. 2d 1190, 1197 (N.D. Ga. 2005). 6 Here, petitioner first asks to respond to respondent’s “characterization of Jackson v. 7 | Superior Court, 189 Cal.App.4th 1051 (2010) as germane to Petitioner’s judicial estoppel 8 | argument.” ECF No. 18 at 1. The Jackson case was first raised and relied upon in petitioner’s 9 | opposition to the motion to dismiss, ECF No. 13 at 14, and respondent distinguished Jackson 10 | from the instant case in her reply, ECF No. 17 at 3. Because Jackson was first raised by 11 | petitioner, not respondent, the court denies petitioner’s request for additional briefing on the case. 12 | Second, petitioner moves to respond to respondent’s description of “the Superior Court’s delay in 13 || serving the August 24, 2015 order as relevant to Petitioner’s equitable tolling argument.” ECF 14 | No. 18 at 1. Petitioner argued that she should be afforded equitable tolling for the superior 15 | court’s delayed service of the August 24, 2015 order in her opposition brief. ECF No. 13 at 18. 16 | Respondent argued in response that petitioner should not be afforded equitable tolling because the 17 | circumstance was not extraordinary and petitioner did not act with diligence. ECF No. 17 at 7. 18 | Additional briefing from petitioner will likely clarify the circumstances of the superior court’s 19 | delay in service. Therefore, we will grant petitioner leave to file a surreply that addresses the 20 | superior court’s delay in service. 21 | Order 22 Petitioner’s motion, ECF No. 18, is granted in part. Petitioner may file a surreply within 23 | seven days of the date of service of this order. 24 95 IT IS SO ORDERED. 26 ( akan Dated: _ February 3, 2020 27 UNI STATES MAGISTRATE JUDGE 28