D.C. v. County of San Diego

Opinion

D.C., a minor by and through his Case No.: 15-cv-1868-MMA (NLS) Guardian Ad Litem, Helen Garter, on behalf of himself and all others similarly ORDER GRANTING DEFENDANT’S situated, EX PARTE MOTION FOR PERMISSION TO FILE SUR-REPLY Plaintiff, [Doc. No. 115] v. COUNTY OF SAN DIEGO, et al., Defendants.

On November 11, 2020, Plaintiff filed a motion for leave to file a second amended complaint. See Doc. No. 108. Defendant County of San Diego (the “County”) opposed, to which Plaintiff replied. See Doc. Nos. 109, 113. The County now requests permission to file a sur-reply. See Doc. No. 115. Plaintiff opposes the motion. See Doc. No. 116. The Local Rules do not authorize the filing of a sur-reply. See generally CivLR 7.1. That said, District Courts have the discretion to either permit or preclude the filing of a sur-reply upon request. See Johnson v. Wennes, No. 08-CV-1798-L (JMA), 2009 U.S. Dist. LEXIS 36992, 2009 WL 1161620, at *2 (S.D. Cal. Apr. 28, 2009). Such discretion “should be exercised in favor of allowing a sur-reply only where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Estate of Alvarado v. Tackett, No. 13-CV-1202 W (JMA), 2018 U.S. Dist. LEXIS 34794, at *3 (S.D. Cal. Mar. 2, 2018). The Court finds that additional briefing is warranted. First, Plaintiff raises a new argument in his reply. Plaintiff’s motion is devoid of Rule 16. See Doc. No. 109. Instead, he strictly briefs the matter under Rule 15. See id. at 9. In reply, he argues why Rule 15, not Rule 16 applies. See Doc. No. 113 p. 3. This is anew argument. Moreover, according to the County, an incident has occurred since the briefing on Plaintiff's motion closed. See Doc. No. 115 at 2. Namely, the County’s settlement offer lapsed. See id. Whether and how this has any bearing on the merits of Plaintiff’s motion is unclear. But County should be permitted to update the Court, and its argument, accordingly. Therefore, the Court finds good cause and GRANTS the County’s motion. The County may file a three-page maximum sur-reply on or before December 14, 2020. Dated: December 10, 2020 Mika U - Ldillr HON. MICHAEL M. ANELLO United States District Judge