David Collins v. Wal-Mart Stores, Inc.

• Court: District Court, S.D. California
• Decided: January 28, 2026
• Docket: 3:23-cv-01368
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 DAVID COLLINS, an individual, Case No.: 3:23-cv-01368-RBM-DEB

8 Plaintiff, ORDER: 9 v. (1) DENYING PLAINTIFF’S 10 WAL-MART STORES, INC., a Delaware MOTIONS TO ADMIT NEW 11 Corporation, CAUSES OF ACTION [Docs. 88, 89]

12 Defendant. (2) DENYING DEFENDANT’S 13 MOTION TO CONTINUE MOTION FILING CUTOFF DATE [Doc. 94] 14

15 (3) DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION 16 TO RE-WORK PRE-TRIAL ORDER 17 [Doc. 100]

18 (4) DENYING DEFENDANT’S 19 MOTION TO STRIKE PLAINTIFF’S BRIEF RESPONSE [Doc. 105] 20

22 I. INTRODUCTION 23 Pending before the Court are five motions concerning case management and the 24 Parties’ briefing on their motions for summary judgment: (1) Motion to Admit Cause of 25 Action for Defamation, Slander, Libel, Defamation in the Workplace (Doc. 88); (2) Motion 26 to Admit Cause of Action for False Imprisonment (Doc. 89); (3) Defendant Wal-Mart 27 Inc.’s Ex Parte Motion to Continue the August 25, 2025 Motion Filing Cutoff Date 28 (Doc. 94); (4) Motion to Re-Work Pre-Trial Order Jointly and with Court and Judicial 1 Intervention (Doc. 100); and (5) Defendant Wal-Mart Inc.’s Ex Parte Application to Strike 2 Plaintiff’s Brief Response to Defendant’s Reply (Doc. 105). 3 The Court resolves these motions as set forth below. 4 II. DISCUSSION 5 A. Plaintiff’s Motions to Admit New Causes of Action for Defamation, Slander, 6 Libel, Defamation in the Workplace (Doc. 88), and False Imprisonment 7 (Doc. 89) 8 The Court previously ordered Plaintiff to file “the Proposed [First Amended 9 Complaint] (Doc. 59-1 at 2–16) in its current form on or before June 16, 2025,” and 10 authorized Plaintiff to “file one Supplemental Complaint on or before June 16, 2025.” 11 (Doc. 84 at 11 (emphasis in original).) Plaintiff timely filed his First Amended Complaint 12 (Doc. 85) and a Supplemental Complaint (Doc. 86). Two weeks later, Plaintiff filed two 13 motions seeking to amend his complaint by adding new causes of action. (Docs. 88, 89.) 14 The first motion requests the Court “admit another Cause of Action . . . . Defamation of 15 Character in the Workplace. Defined as Defamation, Slander, and Liable [sic], CA Codes 16 44, 45, and 46.” (Doc. 88 at 1.) The second motion requests the Court “admit another 17 Cause of Action . . . . False Imprisonment.” (Doc. 89 at 1) (collectively with Doc. 88, the 18 “Motions to Admit New Causes of Action”). 19 Plaintiff argues that these new causes of action are “based on existing evidence” and 20 “have happened over a long period of time.” (Doc. 88 at 1–2; Doc. 89 at 2.) The Motions 21 to Admit New Causes of Action allege Plaintiff was subjected to defamatory speech at 22 work that has “created a false caricature of the Plaintiff and damaged the Plaintif[f’s] 23 reputation” (Doc. 88 at 3–5) and kept him “in a remedial job without opportunity for 24 advancement,” thereby violating Plaintiff’s personal liberty. (Doc. 89 at 2.) 25 Defendant argues that the Motions to Admit New Causes of Action should be 26 stricken because they violate the Court’s June 6, 2025 Order (Doc. 84) or denied because 27 the new causes of action fail as a matter of law. (Doc. 91 at 6–18.) 28 1 The Court construes the Motions to Admit New Causes of Action as motions to 2 amend under Federal Rule of Civil Procedure (“Rule”) 15. As discussed below, because 3 they are futile, would cause undue delay, and would prejudice Defendant, the Motions to 4 Admit New Causes of Action (Docs. 88, 89) are DENIED. 5 1. Legal Standard 6 A party “seeking to amend [a] pleading after [the] date specified in [the] scheduling 7 order must first show ‘good cause’ for amendment under Rule 16(b), then, if ‘good cause’ 8 [is] shown, the party must [also] demonstrate that amendment [is] proper under Rule 15.” 9 Johnson v. Mammoth Recs., Inc., 975 F.2d 604, 608 (9th Cir. 1992) (cleaned up).1 Rule 10 15(a) governs motions for leave to amend and affords the Court discretion to grant Plaintiff 11 leave to amend his pleading before, during, or after trial. See Fed. R. Civ. P. 15(a)–(c). 12 The Court “should freely give leave [to amend] when justice so requires.” Id. 15(a)(2). 13 The “rule favoring liberality in amendments to pleadings is particularly important for the 14 pro se litigant.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (internal citation 15 omitted). 16 The Court considers five factors in ruling on a motion to amend: “bad faith, undue 17 delay, prejudice to the opposing party, futility of the amendment, and whether the party 18 has previously amended his pleadings.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 19 1995). Prejudice is the “touchstone of the inquiry” under Rule 15 and “carries the greatest 20 weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) 21 (cleaned up). “Leave to amend need not be given if a complaint, as amended, is subject to 22 dismissal.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). 23 / / / 24 / / / 25 / / / 26 27 1 Because the Court finds that amendment is not proper under Rule 15, it does not 28 1 2. Discussion 2 Nothing suggests Plaintiff brought the Motions to Admit New Causes of Action in 3 bad faith. The Court weighs the remaining four factors below and finds they weigh against 4 allowing Plaintiff another opportunity to amend. 5 a. Undue Delay 6 “In assessing timeliness, [the Court does] not merely ask whether a motion was filed 7 within the period of time allotted by the district court[].” AmerisourceBergen Corp. v. 8 Dialysist W., Inc., 465 F.3d 946, 953 (9th Cir. 2006). Rather, the Court “considers whether 9 the movant knew of the proposed amended facts or theories before the motion for leave to 10 amend.” Phoenix Solutions, Inc. v. Sony Elecs., Inc., 637 F. Supp. 2d 683, 691 (N.D. Cal. 11 2009) (citing AmerisourceBergen Corp., 465 F.3d at 953 (noting that “an eight month delay 12 between the time of obtaining a relevant fact and seeking a leave to amend is 13 unreasonable”). Here, Plaintiff concedes that the new causes of action are “based on 14 existing evidence” and “have happened over a long period of time.” (Doc. 88 at 1–2; 15 Doc. 89 at 2.) Indeed, Doc. 88, which contains the more detailed timeline of allegations, 16 includes incidents alleged to have occurred between March 2021 and December 2024. 17 (Doc. 88 at 3–5.) Thus, even the latest facts would have been known to Plaintiff nearly a 18 year ago, with most of the facts known to him well before then. Because he already had 19 all the relevant facts he intends to rely on to bring the new causes of action, Plaintiff should 20 have sought to include these causes of action in his First Amended Complaint or 21 Supplemental Complaint. This factor weighs against granting leave to amend. 22 b. Prejudice 23 “Undue prejudice refers to substantial prejudice or substantial negative effect on the 24 opposing party. Such prejudice may result from reopening discovery or conducting 25 supplemental discovery, which may cause delays and require the other party to consider 26 new legal theories in a short period of time.” Entangled Media, LLC v. Dropbox, Inc., 348 27 F.R.D. 649, 656 (N.D. Cal. 2025) (cleaned up). 28 1 Defendant argues it will be unduly prejudiced should the Court grant Plaintiff’s 2 “eleventh-hour attempt to assert entirely new causes of action this late in the litigation after 3 an extensive discovery period” because “Plaintiff moved for summary judgment prior to 4 filing” the Motions to Admit New Causes of Action. (Doc. 91 at 6.) As discussed above, 5 the new causes of action are “based on existing evidence” (Doc. 88 at 2; Doc. 89 at 2), so 6 it is unlikely Defendant will have to conduct additional discovery. But Defendant has 7 already engaged in three rounds of Rule 12(b)(6) motion practice (see Docs. 3, 87, 91) and 8 filed its motion for summary judgment. (Doc. 99.) Plaintiff has also filed his motion for 9 summary judgment. (Doc. 90.) All these pleadings have been fully briefed, and none of 10 them, including Plaintiff’s motion for summary judgment, discuss the proposed new causes 11 of action. (See Docs. 87, 90, 93, 96, 98, 99, 103, 104.) Therefore, the Court finds this 12 factor weighs against granting leave to amend. See Benanti v. Matevousian, Case No. 1:17- 13 cv-01556-LJO-SAB (PC), 2020 WL 58041, at *2 (E.D. Cal. Jan. 6, 2020) (finding that 14 allowing the pro se plaintiff to file a third amended complaint would prejudice Defendants 15 in part because “he has already filed a motion for summary judgment”); cf. Haines v. City 16 of Centralia, Cause No. C20-5576RSL, 2020 WL 7385736, at *1 (W.D. Wash. Dec. 16, 17 2020) (“The fact that defendants chose to file a motion for summary judgment one month 18 after removing the case to federal court and before a case management schedule was 19 established” does not mean the plaintiff’s request to amend will “prejudice defendants’ 20 ability to defend this litigation.”). 21 c. Futility of Defamation Claims 22 “The test for futility ‘is identical to the one used when considering the sufficiency 23 of a pleading challenged under Rule 12(b)(6).’” Fresno Unified Sch. Dist. v. K.U. ex. rel. 24 A.D.U., 980 F. Supp. 2d 1160, 1179 (E.D. Cal. 2013) (quoting Miller v. Rykoff-Sexton, 25 Inc., 845 F. 2d 209, 214 (9th Cir. 1998)). To survive a motion to dismiss under Rule 26 12(b)(6), “a complaint generally must satisfy only the minimal notice pleading 27 requirements of Rule 8(a)(2).” Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). A 28 complaint must contain “a short and plain statement of the claim showing that the pleader 1 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, 2 but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 3 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 4 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 5 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 6 556 U.S. at 663 (internal citation omitted). Although a plaintiff’s allegations are taken as 7 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 8 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal citation omitted). Additionally, a 9 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 10 “Defamation constitutes an injury to reputation; the injury may occur by means of 11 libel or slander.” Issa v. Applegate, 31 Cal. App. 5th 689, 696 n.2 (2019) (citing Cal. Civ. 12 Code § 44). Libel and slander “are the means by which defamation may be effected.” 13 Polygram Records, Inc. v. Super. Ct., 170 Cal. App. 3d 543, 549 (1985). The Court 14 therefore discusses Plaintiff’s proposed new causes of action for “defamation, slander, 15 libel, and defamation in the workplace” (Doc. 88 at 1) together as defamation. 16 “The elements of a defamation claim are (1) a publication that is (2) false, 17 (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or cause special 18 damage.” John Doe 2 v. Super. Ct., 1 Cal. App. 5th 1300, 1312 (2016) (internal citation 19 omitted). “It is the province of the court to determine whether a statement is actionable as 20 a statement of fact susceptible of a defamatory meaning, versus a nonactionable statement 21 of opinion privileged under the First Amendment.” Id. “Under the First Amendment there 22 is no such thing as a false idea.” Id. at 1313 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 23 323, 339 (1974)). “Thus, to be actionable, an allegedly defamatory statement must make 24 an assertion of fact that is provably false . . . in a court of law.” John Doe 2, 1 Cal. App. 25 5th at 1313. “[R]hetorical hyperbole, vigorous epithets, lusty and imaginative expressions 26 of contempt, and language used in a loose, figurative sense have all been accorded 27 constitutional protection.” Ferlauto v. Hamsher, 74 Cal. App. 4th 1394, 1401 (1999) 28 (cleaned up). 1 The alleged statements Plaintiff identifies as evidence of defamation are protected 2 opinions or not defamatory. These are the statements Plaintiff alleges he either heard 3 employees make, or “could prove through questioning of Witnesses” (Doc. 88 at 4): 4 He’s suing me. . . . Watch out for the hat-trick. . . . I don’t care about that guy. . . . Let’s teach him a lesson. . . . He should be more 5 respectful. . . . This is what happens when you sue Wal-Mart. . . . I 6 don’t think Dave is simple. . . . I’m glad you’re not a manager. . . . I heard you don’t like Dave. . . . You leave Dave alone. . . . He’s 7 too old. He’s slow. . . . He’s lazy. . . . He’s a loser. . . . He’s a 8 monster. . . . He’s always in trouble. . . . He’s not even a good person. . . . Blueprint. . . . Nasty. . . . drunk, animal, crazy. . . . Bad 9 hombre. 10 (Doc. 88 at 3–5.) 11 These statements are not “provably false . . . in a court of law.” John Doe 2, 1 Cal. 12 App. 5th at 513. Statements like “[h]e should be more respectful,” “I don’t care about that 13 guy,” and “I’m glad you’re not a manager” cannot reasonably be interpreted as stating 14 provably false factual assertions about Plaintiff. Even the more extreme statements— 15 allegedly about Plaintiff being a loser, monster, or not even a good person—are at most 16 “rhetorical hyperbole” or “vigorous epithets,” which are not actionable under a defamation 17 claim. Ferlauto, 74 Cal. App. 4th at 1401; accord Underwager v. Channel 9 Australia, 69 18 F.3d 361, 367 (9th Cir. 1995) (holding that statement that the plaintiff was “intrinsically 19 evil” was not an assertion capable of verification); Arellano v. Concord CA Police Dep’t, 20 Case No. 25-cv-03690-WHO, 2025 WL 2076638, at *3 (N.D. Cal. July 23, 2025) (“The 21 officer may have been incredibly insensitive to [the plaintiff] or intentionally rude and 22 condescending, but that intent does not make the statement defamatory.”); Reed v. 23 Gallagher, 248 Cal. App. 4th 841, 857 (2016) (Because “subjective judgments are 24 incapable of being proved true or false . . . a subjective judgment of the person making the 25 statement is not one that implies a provably false factual assertion.”) (cleaned up). 26 Accordingly, the Court finds that “[l]eave to amend need not be given” because the 27 “complaint, as amended, is subject to dismissal.” Moore, 885 F.2d at 538. 28 1 d. Futility of False Imprisonment Claim 2 “The elements of a tortious claim of false imprisonment are: (1) the nonconsensual, 3 intentional confinement of a person, (2) without lawful privilege, and (3) for an applicable 4 period of time, however brief.” Easton v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 496 5 (2000) (citation omitted). “False imprisonment requires direct restraint, via physical force, 6 or ‘any other form of unreasonable duress.’” McKinney v. Apollo Grp., Inc., CASE NO. 7 07cv2373 WQH (CAB), 2010 WL 11442914, at *11 (S.D. Cal. Jan. 28, 2010) (quoting 8 Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715 (1994)). “Where there is an employer- 9 employee relationship between plaintiff and defendant, ‘[i]n order to plead false 10 imprisonment in a civil action, a plaintiff/employee would have to allege rather specific, 11 and fairly uncommon, acts of involuntary and criminal confinement.’” McKinney, 2010 12 WL 1442914, at *11 (quoting Fermino, 7 Cal. 4th at 722–23). 13 Plaintiff alleges Defendant violated his “personal liberty by keeping the Plaintiff in 14 a remedial job without opportunity for advancement. The Plaintiff was made to work in 15 the far back corner of the store that was frequently blocked by pallets.” (Doc. 89 at 2.) 16 Plaintiff identifies the following “[i]ncidents” of false imprisonment: 17 Future Faking and others promoted leaving Plaintiff behind. . . . Plaintiff is made homeless and had to sell everything while others 18 prosper. . . . Any reasonable person would have done something. . . . 19 homeless living in truck. . . . [D]idn’t see any sense or benefit of doing the same thing over and over expecting different results. 20 21 (Doc. 89 at 4 (citing Doc. 86).) 22 Plaintiff further provides “a specific list of occurrences with specific dates:”2 23 Kim denies transfer requests. I wonder if this is to keep me hostage. . . . I feel used. . . . [F]eel like a prisoner. . . . I’m good 24 enough to help but not good enough for opportunity. . . . I feel like 25

26 27 2 The Court does not include every allegation Plaintiff makes. The following is a representative sample of the allegations Plaintiff makes in support of his false 28 1 a hostage. . . . You have been assigned over there. . . . Alone working in the corner, management watches me. . . . Working in the 2 back corner, hated. . . . Confined to the far back corner. . . . Note 3 Imprisonment. . . . Confinement, feel banished. . . . Made me a prisoner. . . . I feel like a hostage. . . . I feel like a caged animal[.] 4 5 (Doc. 89 at 4–6 (emphasis in original).) 6 These allegations do not give rise to a false imprisonment claim. Plaintiff has not 7 alleged any form of “unreasonable duress” nor any “acts of involuntary and criminal 8 confinement.” Cf. Fermino, 7 Cal. 4th at 706–07 (1994) (holding allegations in complaint 9 were sufficient to state claim for false imprisonment where “manager summoned [the 10 plaintiff] to a windowless room. . . physically compelled [her] to remain in the room for 11 more than one hour,” and denied the plaintiff’s “repeated requests to leave the room and to 12 call her mother”). Plaintiff feels personally trapped in terms of his employment conditions 13 or prospects, but these feelings are not actionable. Furthermore, to the extent Plaintiff 14 alleges he has been falsely imprisoned because he feels “like a prisoner,” “a hostage,” or 15 “a caged animal” (Doc. 5–6), those “legal conclusions are not accepted as true.” Iqbal, 16 556 U.S. at 678. Here, too, the Court finds that “[l]eave to amend need not be given” 17 because the “complaint, as amended, is subject to dismissal.” Moore, 885 F.2d at 538. 18 e. Previous Amendment 19 The Court’s “discretion to deny amendment is especially broad when the court has 20 already given a plaintiff one or more opportunities to amend.” Wizards of the Coast LLC 21 v. Cryptozoic Entm’t LLC, 309 F.R.D. 645, 654 (W.D. Wash. 2015) (citing Chodos v. W. 22 Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002)). As discussed supra II.A, the Court 23 previously allowed Plaintiff to file his First Amended Complaint and a Supplemental 24 Complaint. (Doc. 84 at 11.) Thus, this factor weighs against granting leave to amend. 25 Because four of the five factors weigh against granting leave to amend, Plaintiff’s 26 Motions to Admit New Causes of Action (Docs. 88, 89) are DENIED. 27 / / / 28 / / / 1 B. Defendant’s Ex Parte Motion to Continue Motion Filing Cutoff Date (Doc. 94) 2 Defendant moves ex parte for “an order continuing the dispositive motion deadline” 3 from August 25, 2025 “until this Court rules on [Defendant’s] Motion to Dismiss.” 4 (“Motion Filing Cutoff Motion”) (Doc. 94 at 2.) Because the Parties have both already 5 filed motions for summary judgment (see Docs. 90, 99), Defendant’s Ex Parte Motion to 6 Continue Motion Filing Cutoff Date (Doc. 94) is DENIED AS MOOT. 7 C. Plaintiff’s Motion to Re-Work Pre-Trial Order (Doc. 100) 8 Plaintiff requests the Court “allow the Plaintiff’s Pre-Trial Order to be re-worked 9 and re-submitted” because Plaintiff “is not necessarily in agreement with the document that 10 has been submitted” and believes “the Defense is leaving out his work.” (“Motion to 11 Rework Pretrial Order”) (Doc. 100 at 1.) Because the Court vacated the final pretrial 12 conference and “will reset all necessary deadlines once it has ruled on the pending motions” 13 (Doc. 106 at 1), Plaintiff’s Motion to Re-Work Pre-Trial Order (Doc. 100) is DENIED 14 WITHOUT PREJUDICE. 15 D. Defendant’s Ex Parte Application to Strike Plaintiff’s Brief Response (Doc. 105) 16 Defendant moves ex parte “to strike Plaintiff’s Brief Response to Defense 09/22/25 17 Pleading and Support to Opposition of MSJ” (“Plaintiff’s Response”) (Doc. 104). (Doc. 18 105 (“Ex Parte Motion to Strike”) at 2.) Defendant notes Plaintiff’s Response was filed 19 after the parties fully briefed Defendant’s Renewed Motion for Summary Judgment (see 20 Docs. 98, 99) and thus constitutes an impermissible sur-reply. (Doc. 105 at 2.) Defendant 21 argues that the Court should strike Plaintiff’s Response because it does not comply with 22 the undersigned’s Chambers Rules, the Court’s previous orders, or the Southern District of 23 California’s Civil Local Rules. (Doc. 105-1 at 2–4.) 24 Sur-replies “may not be filed without leave of Court.” The Hon. Ruth Bermudez 25 Montenegro Civ. Chambers R. III.D. Plaintiff has not opposed the Ex Parte Motion to 26 Strike. See id. R. VI (“Ex parte applications that are not opposed within three (3) Court 27 days may be considered unopposed and granted on that ground.”) The Court also warned 28 Plaintiff that “[f]uture non-compliant filings, including duplicative filings, will be stricken 1 from the docket.” (Doc. 84 at 11.) However, the Court is “mindful of Supreme Court 2 precedent that instructs federal courts liberally to construe the ‘inartful pleading’ of pro se 3 litigants.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (quoting Boag v. 4 MacDougall, 454 U.S. 364, 365 (1982)). 5 Plaintiff filed his first opposition (Doc. 98) to Defendant’s motion for summary 6 judgment (Doc. 99) before Defendant even filed its motion for summary judgment. In 7 Plaintiff’s Response, Plaintiff indicates: 8 The Motion cut-off was moved to be August 25, 2025. On the afternoon of that day the Plaintiff had to file the opposition to MSJ 9 as it was simply getting late and the Defense did not file until just 10 before the deadline. The Plaintiff apologizes for any pre-mature filing. 11 12 (Doc. 104 at 1.) 13 It appears Plaintiff incorrectly believed that the August 25, 2025 motion filing 14 deadline was also the deadline for him to oppose Defendant’s motion for summary 15 judgment. Thus, although Plaintiff’s Response is technically a sur-reply, it may be 16 Plaintiff’s only filing that responds to the specific arguments raised in Defendant’s motion 17 for summary judgment, rather than merely “giv[ing] a solid general outline of the Causes 18 of Action.” (Doc. 98 at 2.) 19 Therefore, although Plaintiff did not oppose Defendant’s Ex Parte Motion to Strike 20 or seek leave to file his sur-reply, the Court does not find that “striking [Plaintiff’s 21 Response] is appropriate here, considering [P]laintiff’s pro se status” and his mistaken 22 belief that he was required to oppose Defendant’s motion for summary judgment by August 23 25, 2025. Johnson v. Beard, No. 2:15-cv-1313 TLN KJN P, 2022 WL 17252451, at *7 24 (E.D. Cal. Nov. 28, 2022) (citing Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 25 2013)); Garcia v. Biter, 195 F. Supp. 3d 1131, 1134 (E.D. Cal. 2016) (“[D]istrict courts 26 have the discretion to either permit or preclude a surreply.”). Accordingly, the Court 27 DENIES Defendant’s Ex Parte Motion and will consider Plaintiff’s Brief Response. 28 l Ht. CONCLUSION 2 For the foregoing reasons, the Court ORDERS as follows: 3 1. Plaintiff's Motions to Admit New Causes of Action (Docs. 88, 89) are DENIED. 4 2. Defendant’s Motion Filing Cutoff Motion (Doc. 94) is DENIED AS MOOT. 5 3. Plaintiff's Motion to Rework Pretrial Order (Doc. 100) is DENIED WITHOUT 6 PREJUDICE. Plaintiff may file a renewed motion, if necessary, after the Court 7 rules on the pending motion to dismiss (Doc. 87) and motions for summary judgment 8 (Docs. 90, 99). 9 4. Defendant’s Ex Parte Motion to Strike (Doc. 105) is DENIED. 10 IT IS SO ORDERED. 11 ||Dated: January 28, 2026 FR Bo ? L 12 HON. RUTH BERMUDEZ MONTENEGRO 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12