Do v. Tri City Healthcare District ( 2020 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MIKE DO, Case No.: 19cv2253-MSB (NLS) 12 Plaintiff, ORDER GRANTING IN PART 13 v. DEFENDANTS’ EX PARTE MOTION [ECF NO. 39] 14 TRI CITY HEALTHCARE DISTRICT, dba TRI CITY MEDICAL CENTER, et al., 15 Defendants. 16 17 18 On November 2, 2020, Defendants filed an “Ex Parte Application to Strike Do 19 Declaration Submitted with Plaintiff’s Reply Brief.” (ECF No. 39.) They move to strike 20 the following: (1) the declaration of Mike Do (“Do Declaration”) and the accompanying 21 exhibits included in Plaintiff’s Reply brief filed in support of his Motion for Leave to File 22 Amended Complaint [ECF No. 38-1]; and (2) the new arguments in Plaintiff’s Reply brief 23 that rely on or cite the Do Declaration. (ECF No. 39-2 at 1.) In support, Defendants 24 argue that the Do Declaration and accompanying Exhibit A [ECF No. 38-1] offer new 25 evidence, are untimely, and violate Civil Local Rule 7.1(f)(2). (ECF No. 39-2 at 2-3.) 26 Defendants further contend that Plaintiff’s Reply seeks to introduce a new argument 27 that Plaintiff never had an opportunity to review or correct the claims on the May 2019 2 and that the EEOC, not Plaintiff, is therefore responsible for the limited charge. (Id. at 3 2.) 4 In the alternative, Defendants ask the Court for leave to file a sur-reply so that 5 they could respond to “untimely evidence and arguments” in Plaintiff’s Reply. (Id. at 1, 6 3-4.) Defendants state that they would like to present evidence contradicting Plaintiff’s 7 sworn testimony and establishing that “[Plaintiff] not only received a copy of the May 8 2019 EEOC charge, but was given an opportunity to review the charge, and even 9 recommended a change to the charge before he signed it,” and that Plaintiff “actively 10 used the EEOC’s online portal to provide supplemental information about his charge, 11 upload documents, and communicate with the EEOC investigator.” (Id.) 12 Defense counsel states in his supporting declaration that on October 27, 2020, he 13 e-mailed Plaintiff’s counsel and 14 indicated that statements within the Do declaration are objectively false and provided evidence reflecting the activity in Mr. Do’s EEOC charge. 15 [Defense counsel] also advised Plaintiff’s counsel to take action to correct 16 these false statement or call [defense counsel] to discuss. On October 28, 2020, [defense counsel] sent another email to counsel for Plaintiff, 17 requesting a response. Plaintiff’s counsel did not respond to the email or 18 otherwise contact [defense counsel] to discuss. 19 20 (Decl. of Jeffrey P. Ames, ECF No. 39-1 at 2.) 21 On November 4, 2020, Plaintiff filed an “Opposition to Defendants’ Ex Parte 22 Motion to Strike Do Declaration.” (ECF No. 40.) Plaintiff argues that the Do Declaration 23 is “not new matter” because it directly responds to “proof [Defendants] submitted in 24 [their] Opposition” to Plaintiff’s motion to amend. (Id. at 2-3.) Plaintiff explains that 25 Defendants’ Opposition contains a copy of the May 22, 2019 “right to sue” letter, as well 26 as arguments that the letter established that Plaintiff’s proposed new claim was barred 27 by statute. (Id. at 2.) Plaintiff contends that Defendants’ “evidence and argument 2 addressed to him, and he had never received a copy of the letter. (Id. at 3.) Plaintiff 3 also maintains that because no new evidence is submitted in his Reply, Defendants’ sur- 4 reply should not be permitted. (Id. at 3-4.) Plaintiff thus asks the Court to deny 5 Defendants’ ex parte motion. (Id. at 4.) 6 I. APPLICABLE LAW 7 “It is improper for a moving party to introduce new facts or different legal 8 arguments in the reply brief than those presented in the moving papers.” United States 9 ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (citing Lujan v. Nat’l 10 Wildlife Fed’n, 497 U.S. 871, 894095 (1990)); see also Zamani v. Carnes, 491 F.3d 990, 11 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first 12 time in a reply brief.”). Further, Civil Local Rule 7.1 provides that “copies of all 13 documentary evidence which the movant intends to submit in support of the motion, or 14 other request for ruling by the court, must be served and filed with the motion.” S.D. 15 Cal. Civ. L.R. 7.1(f)(2)(a). 16 District courts have the discretion to either allow or preclude the filing of a sur- 17 reply. United States v. Venture One Mortg. Corp., Case No: 13-CV-1872 W (JLB), 2015 18 WL 12532139, at *2 (S.D. Cal. Feb. 26, 2015). Such discretion “should be exercised in 19 favor of allowing” a sur-reply “only where a valid reason for such additional briefing 20 exists, such as where the movant raises new arguments in its reply brief.” Id. (quoting 21 Hill v. England, No. CVF05869RECTAG, 2005 WL 3031136, at *1 (E.D. Cal. Nov. 8, 2005)). 22 II. DISCUSSION 23 In his Motion for Leave to File Amended Complaint, which is currently pending 24 before the Court, Plaintiff seeks to add a new claim for disability discrimination. (See 25 ECF No. 26 at 6; see also ECF Nos. 28 & 35.) Plaintiff argues, inter alia, that his claim for 26 disability discrimination was timely because his counsel first learned of the May 2019 27 EEOC charge containing the disability discrimination claim during the September 9, 2020 1 || Defendants assert that Plaintiff's counsel’s knowledge of the May 2019 EEOC charge is 2 || irrelevant because at the time Plaintiff filed his original Complaint, Plaintiff was aware of 3 ||the May 2019 EEOC charge and the underlying facts related to his claim for disability 4 ||discrimination. (See ECF No. 36 at 11.) The Court agrees with Defendants that □□□□□□□□□□□ 5 Reply seeks to introduce new evidence and argument that Plaintiff never had an 6 || opportunity to review or correct the claims on the May 2019 EEOC charge and first saw 7 ||a copy of the EEOC charge when Defendants provided the document after the 8 || September 9, 2020 ENE, and that the EEOC, and not Plaintiff, is responsible for the 9 || limited charge. (See ECF No. 39-2 at 2.) 10 By submitting additional new evidence and arguments in his Reply, Plaintiff has 11 || deprived Defendants of the opportunity to respond. The Court therefore concludes that 12 |} under the circumstances, the filing of a sur-reply is warranted. 13 Ill. CONCLUSION 14 For the reasons state above, the Court GRANTS IN PART Defendants’ ex parte 15 motion. The Court DENIES Defendants’ motion to strike the Do Declaration, the 16 || accompanying exhibits, and the new arguments in Plaintiff’s Reply brief that rely on or 17 || cite the Do Declaration. The Court GRANTS Defendants’ motion to file a sur-reply. 18 || Defendants must file their sur-reply by November 10, 2020. The sur-reply must be 19 || limited to the issues described in Defendants’ ex parte motion. 20 IT IS SO ORDERED. 21 ||Dated: November 4, 2020 _ TZ. 22 4 L <—{|— 33 Honorable Michael S. Berg United States Magistrate Judge 24 25 26 27 28