275 Rivulon Boulevard LLC v. American Pacific Mortgage Corporation

• Court: District Court, D. Arizona
• Decided: January 28, 2025
• Docket: 2:24-cv-02244
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

275 Riv ulon Boulevard, LLC, ) No. CV-24-02244-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) American Pacific Mortgage ) 12 Corporation, ) 13 ) ) 14 Defendant. )

15 Before the Court is Plaintiff’s Motion to Strike Portions of Defendant’s Reply in 16 Support of Motion to Dismiss (Doc. 27), Defendant’s Response (Doc. 38), and Plaintiff’s 17 Reply (Doc. 29). Plaintiff moves to strike portions of Defendant’s Reply that raise new 18 arguments for the first time. (Doc. 27 at 2). 19 In the Ninth Circuit, it is improper to raise arguments for the first time in a reply 20 brief. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not 21 consider arguments raised for the first time in a reply brief.”). 22 Here, Defendant admits that its argument that Plaintiff’s declaratory judgment claim 23 should be dismissed because it is duplicative of Plaintiff’s breach of contract claims was 24 first addressed in its Reply brief. (Doc. 28 at 2). This makes Defendant’s argument 25 improper. See Zamani, 491 F.3d at 997. However, while Defendant’s failure to raise the 26 arguments in its initial Motion may justify striking the argument, it also justifies allowing 27 Plaintiff to file a sur-reply. See Mexicanos v. Diamondback Shooting Sports, Inc., No. CIV 28 22-472-TUC-CKJ, 2023 WL 4237495, at *1 (D. Ariz. June 28, 2023); Spinedex Physical 1| Therapy, U.S.A., Inc. v. United Healthcare of Ariz., Inc., No. CV-08-00457-PHX-ROS, 2017 WL 11630875, at *2 (D. Ariz. Sept. 29, 2017) (“When a party raises a new argument 3] inreply, the Court will either refuse to consider that new argument, or will grant leave to 4| file a sur-reply to allow the party opposing the motion to contest newly-presented 5 | matters.’’). 6 Therefore, instead of striking Defendants’ argument as it relates to whether 7| Plaintiff's declaratory judgment is duplicative of its breach of contract claim, the Court 8 | will permit Plaintiff to file a sur-reply to Defendant’s Reply. This sur-reply will only 9 | address the legal arguments surrounding the newly raised arguments in Defendant’s Reply and will be narrowly crafted to only address that issue. Plaintiff will not be permitted to 11 | file an additional statement of facts in support of this sur-reply. Accordingly, 12 IT IS ORDERED that Plaintiff 275 Rivulon Boulevard LLC’s Motion to Strike 13 | (Doc. 27) is denied. 14 IT IS FURTHER ORDERED that Plaintiff 275 Rivulon Boulevard LLC is 15 | permitted to file a sur-reply, not exceeding five pages, narrowly crafted to address the 16 | specific issue identified in this Order. This sur-reply must be filed with the Court by 17| February 3, 2025. Plaintiff is not permitted to file an additional statement of facts in 18 | support of this sur-reply. 19 Dated this 28th day of January, 2025. 20 21

3 United States District ludge 24 25 26 27 28