(PC) Butler v. Kelso ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARIUS BUTLER, No. 2:22-cv-1301 KJN P 12 Plaintiff, 13 v. ORDER 14 J. CLARK KELSO, et al., 15 Defendants. 16 17 On December 27, 2022, plaintiff filed a motion for permission and an extension of time to 18 file a surreply to the receiver defendants’ reply in support of the motion to dismiss. Plaintiff 19 contends that the receiver challenged the timeliness of plaintiff’s opposition for the first time in 20 their reply and therefore he needs to address it in a further filing. 21 Parties do not have the right to file sur-replies and motions are deemed submitted when 22 the time to reply has expired. Local Rule 230(l). The Court generally views motions for leave to 23 file a sur-reply with disfavor. Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. Nov. 8, 2005) 24 (citation omitted); Turner v. Admin. Sec. Personell, 2017 WL 4387326, at *1 (E.D. Cal. Oct. 3, 25 2017) (“district courts have the discretion to either permit or preclude a surreply.”) Such 26 discretion “should be exercised in favor of allowing a surreply only when a valid reason for such 27 additional briefing exists, . . .” Hill, 2005 WL 3031136, at *1. For example, “[d]iscretion to 28 grant leave to file a surreply is proper when a party has submitted new evidence with its reply 1 | brief.” Citizens for Quality Educ. San Diego v. San Diego Unified Sch. Dist., 2018 U.S. Dist. 2 | LEXIS 77695, at *3 (S.D. Cal. May 7, 2018). 3 Here, the receiver defendants’ contention that plaintiffs filing was untimely requires no 4 | further briefing as the court evaluates the issue by applying the mailbox rule. Houston v. Lack, 5 || 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to 6 || prison authorities). Whether or not plaintiff's opposition was timely filed will be determined in 7 || applying such rule. Because no surreply is required, plaintiff's motion for extension of time to 8 || object to the receiver defendants’ reply is denied. 9 On January 5, 2023, plaintiff filed a motion for extension of time to file a surreply to the 10 || late-joming defendants’ reply, contending that such defendants included new evidence in their 11 || reply. However, review of the reply confirms that no new evidence was submitted. Rather, in 12 | their reply the late-joining defendants argued concerning plaintiffs pleading allegations and 13 || applicable statutes and addressed plaintiff's opposition. (ECF No. 28.) In addition, in their 14 || motion, defendants argued that a defendant’s duty in California must be established by statute 15 || (ECF No. 11 at 4-5), and plaintiff addressed such argument in his opposition (ECF No. 23 at 37- 16 || 39). Similarly, California Government Code § 8658 was also argued in defendants’ motion (ECF 17 || No. 11 at 7) and plaintiff addressed it in his opposition (ECF No. 23 at 53). Therefore, the 18 || undersigned exercises his discretion and declines to grant plaintiff leave to file a sur-reply to the 19 | late-joining defendants’ reply. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Plaintiffs motion for approval and for an extension of time (ECF No. 29) to file a 22 || surreply to the receiver defendants’ reply (ECF No. 25) is denied; and 23 2. Plaintiffs motion for permission and for an extension of time (ECF No. 30) to file a 24 || surreply to the late-joming defendants’ reply (ECF No. 28) is denied. 25 || Dated: January 12, 2023 %6 Foci) Aharon 27 KENDALL J. NE 08 /butl1301.den.29 UNITED STATES MAGISTRATE JUDGE