Amargos v. Verified Nutrition, LLC ( 2022 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 22-cv-22111-BLOOM/Otazo-Reyes ROGER AMARGOS, individually and on behalf of all others similarly situated, Plaintiff, v. VERIFIED NUTRITION, LLC, doing business as ProstaGenix, Defendant. ________________________________/ ORDER ON MOTION FOR LEAVE TO FILE SUR-REPLY THIS CAUSE is before the Court upon Plaintiff’s Motion for Leave to File Sur-reply to Defendant’s Reply to Motion to Compel Arbitration, ECF No. [36] (“Motion”), filed on December 20, 2022. The Court has carefully reviewed the Motion, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is denied. Plaintiff argues that he should be permitted to file a sur-reply because Defendant’s Reply to Plaintiff’s Response to the Motion to Compel Arbitration, ECF No. [35] (“Reply”), “submits new arguments and evidence not previously raised.” ECF No. [36] at 1. As such, Plaintiff requests leave to file a sur-reply to respond to Defendant’s new evidence and arguments. Sur-replies will generally only be permitted in exceptional circumstances. See, e.g., Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005). “To allow such sur-replies as a regular practice would put the court in the position of refereeing an endless volley of briefs.” Garrison v. Ne. Georgia Med. Ctr., Inc., 66 F. Supp. 2d 1336, 1340 (N.D. Ga. Case No. 22-cv-22111-BLOOM/Otazo-Reyes 1999). Likewise, Local Rule 7.1(c) provides that a party must obtain leave of court to file a sur- reply. S.D. Fla. L.R. 7.1(c). In this case, the Court determines that a sur-reply is unnecessary. As Plaintiff correctly notes, “[I]t's well-established that ‘[a]rguments not properly presented in a party's initial brief or raised for the first time in a reply brief are deemed waived.’” ECF No. [36] at 1 (quoting MY. □□□□□ LLC v. H&R Marine Eng'g, Inc., 544 F. Supp. 3d 1334, 1349 (S.D. Fla. 2021)). Thus, to the extent that Defendant’s Reply raises new arguments not addressed in its Motion to Compel Arbitration, ECF No. [26], the Court will disregard such arguments. Accordingly, it is ORDERED AND ADJUDGED that Plaintiff's Motion, ECF No. [36], is DENIED. DONE AND ORDERED in Chambers at Miami, Florida, on December 21, 2022. BETHBLOOM ———“‘“COCS UNITED STATES DISTRICT JUDGE Copies to: Counsel of Record