Brinker v. Axos Bank

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JENNIFER BREAR BRINKER, Case No. 22-cv-0386-MMA (DDL)

11 Plaintiff, ORDER DENYING PLAINTIFF’S EX 12 v. PARTE MOTION FOR LEAVE TO FILE SUR-REPLY 13 AXOS BANK, et al., [Doc. No. 248] 14 Defendants.

15 16 17 AXOS BANK, et al., Counter-Claimants, 18 v. 19 20 JENNIFER BREAR BRINKER,

21 Counter-Defendant. 22 23 24 On March 14, 2025, Defendant filed its motion for summary judgment. Doc. 25 No. 201. Plaintiff subsequently filed her opposition, to which Defendant filed a reply. 26 Doc. Nos. 234, 239. Plaintiff now requests permission to file a sur-reply. See Doc. 27 No. 248. Plaintiff contends that Defendant improperly raised two new arguments for the 28 first time in its reply brief: (1) that Murray v. UBS Sec., LLC, 601 U.S. 23 (2024), 1 establishes that an employer has absolute immunity to terminate a whistleblower so long 2 as the termination is part of a layoff; and (2) that case law analyzing “pretext” under other 3 anti-discrimination statutes is inapplicable to retaliation claims brought under SOX, as 4 Plaintiff does not need to show pretext for a SOX claim. Id. Plaintiff also claims that 5 Defendant has misrepresented the law. Id. Defendant opposes the motion. See Doc. 6 No. 253. 7 The Local Rules do not authorize the filing of a sur-reply. See generally CivLR 8 7.1. That said, district courts have the discretion to either permit or preclude the filing of 9 a sur-reply upon request. See Johnson v. Wennes, No. 08CV1798-L(JMA), 2009 WL 10 1161620, at *2 (S.D. Cal. Apr. 28, 2009). Such discretion “should be exercised in favor 11 of allowing a sur-reply only where a valid reason for such additional briefing exists, such 12 as where the movant raises new arguments in its reply brief.” Est. of Alvarado v. Tackett, 13 No. 13-CV-1202 W (JMA), 2018 WL 1141502, at *1 (S.D. Cal. Mar. 2, 2018). 14 At the outset, the Court notes that Plaintiff neither attached the proposed sur-reply 15 to the motion nor indicated when it would be filed if leave were granted. Moreover, the 16 motion was filed well after the close of briefing, almost a week and a half after Defendant 17 filed its reply brief. Plaintiff has not provided any explanation for the delay nor any 18 indication of diligence, especially since Plaintiff never renewed her motions to file under 19 seal. 20 Looking at Defendant’s summary judgment motion and reply brief, the Court finds 21 that Defendant did not raise new arguments that would warrant granting Plaintiff leave to 22 file a sur-reply. Regarding Plaintiff’s first point, Defendant’s actual position in its 23 summary judgment motion is that part of the same-action defense under the AIR-21 24 burden-shifting framework inquires as to whether the employer would have taken the 25 same adverse action absent the protected activity. See Doc. No. 201-1 at 38. Plaintiff 26 seemed to challenge this argument in her opposition. See Doc. No. 234 at 31–38 (“Axos 27 cannot establish, by clear and convincing evidence, that Ms. Brinker would have suffered 28 the same unfavorable action in the absence of her protected activities.”). Defendant 1 appears to address this issue in greater depth in response to Plaintiff’s opposition. See 2 Doc. No. 239 at 18–19. While the reply appears to expand on this defense by referencing 3 Murray in greater detail and responding to Plaintiff’s arguments regarding retaliatory 4 intent and pretext, that additional discussion does not constitute a new legal theory. 5 Regarding Plaintiff’s second point, Defendant did not raise the pretext issue for the 6 first time in its reply. Defendant made clear in its summary judgment motion that the 7 relevant causation and burden-shifting standard arises under AIR-21 and argued that the 8 plaintiff must show that the protected activity was a contributing factor. Doc. No. 201-1 9 at 38. Defendant maintained that an employer may avoid liability if it proves, by clear 10 and convincing evidence, that it would have taken the same action absent the protected 11 conduct. Id. Plaintiff’s opposition, in contrast, relied on arguing pretext to rebut the 12 same-action defense. See Doc. No. 234 at 31–38. Again, Defendant seems to address the 13 pretext issue in more detail in its reply because of Plaintiff’s arguments raised in her 14 opposition. Doc. No. 239 at 17–19. 15 Ninth Circuit courts have made it clear that reply briefs may address points raised 16 in opposition. See Hanney v. Epic Aircraft, LLC, No. 6:21-CV-01199-MK, 2024 WL 17 2106210, at *5 (D. Or. May 10, 2024) (“[M]ultiple courts in the Ninth Circuit have held 18 that arguments submitted in a reply are not ‘new’ when they directly rebut issues raised 19 in the non-movant’s opposition to a motion.”); In re Midland Credit Mgmt., Inc. Tel. 20 Consumer Prot. Litig., No. 11MD2286-MMA (MDD), 2019 WL 1676015, at *3 (S.D. 21 Cal. Apr. 17, 2019) (“Although courts generally do not review issues raised for the first 22 time in a reply brief, they may consider them if the new issue argued is offered in 23 response to an argument raised in the opposition brief.”). Accordingly, the Court finds 24 that the reply brief does not raise any new arguments. 25 Finally, Plaintiff’s disagreement with Defendant’s case law interpretation does not, 26 without more, entitle her to a sur-reply. As courts have noted, “an alleged 27 mischaracterization of the law alone cannot justify supplemental briefing, or every party 28 would be entitled to the last word.” See, e.g., U.S. ex rel. Calilung v. Ormat Indus., Ltd., 1 || No. 3:14-CV-00325-RCJ, 2015 WL 1321029, at *6 (D. Nev. Mar. 24, 2015). 2 Accordingly, for these reasons, the Court DENIES Plaintiff's motion for leave to 3 || file a sur-reply. 4 IT IS SO ORDERED. 5 || Dated: May 27, 2025 6 Miku. hilt 7 HON. MICHAEL M. ANELLO g United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28