1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GARRETT MICHAEL GOLDUP, Case No.: 24-CV-786 JLS (AHG)
12 Plaintiff, ORDER: 13 v. (1) SUA SPONTE STRIKING 14 VALLEY VIEW CASINO & HOTEL; PLAINTIFF’S OPPOSITION TO JOHN DOE NO. 1; JOHN DOE NO. 2; 15 DEFENDANTS’ REPLY IN and BOYD LONG, SUPPORT OF MOTION TO 16 Defendants. DISMISS AND REQUEST FOR 17 DISCOVERY, AND
18 (2) GRANTING PLAINTIFF’S 19 MOTION REQUESTING ORAL ARGUMENTS 20
21 (ECF Nos. 24, 25)
22 23 Presently before the Court is Plaintiff Garrett Michael Goldup’s Motion Requesting 24 Oral Arguments (“Mot.,” ECF No. 25). Plaintiff’s Motion pertains to Defendants Valley 25 View Casino & Hotel and Boyd Long’s Motion to Dismiss Second Amended Complaint 26 (“MTD,” ECF No. 18). On October 2, 2024, the Court vacated the originally scheduled 27 October 9, 2024 hearing on the Motion to Dismiss and took the Motion to Dismiss under 28 submission. ECF No. 20. After the Motion to Dismiss became fully briefed pursuant to 1 Civil Local Rule 7.1(e), Plaintiff filed a Sur-Reply, styled an Opposition to Defendants’ 2 Reply in Support of Motion to Dismiss and Request for Discovery (“Sur-Reply,” ECF 3 No. 24), and about three months later, filed the instant Motion Requesting Oral Arguments. 4 As an initial matter, Plaintiff improperly filed the Sur-Reply without Court 5 permission. See S.D. Cal. CivLR 7.1(e). “The Local Rules in this District do not authorize 6 the filing of a sur-reply,” and Plaintiff did not seek leave of Court to do so here. Est. of 7 Alvarado v. Tackett, No. 13-CV-1202 W (JMA), 2018 WL 1141502, at *1 (S.D. Cal. 8 Mar. 2, 2018). Local Rule 7.1 is “no empty formality.” Kashin v. Kent, 9 No. 02CV2495-LAB (WMC), 2007 WL 1975435, at *1 (S.D. Cal. Apr. 26, 2007), aff’d, 10 342 F. App’x 341 (9th Cir. 2009). It facilitates the orderly administration of noticed 11 motions such that every party has an opportunity to be heard. The Court has “the discretion 12 to either permit or preclude the filing of a sur-reply,” and that discretion “should be 13 exercised in favor of allowing a sur-reply only where a valid reason for such additional 14 briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. 15 England, No. CVF05869RECTAG, 2005 WL 3031136 (E.D. Cal. Nov. 8, 2005) (quoting 16 Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005)). 17 Plaintiff’s failure to comply with the Civil Local Rules is grounds enough to reject 18 the filing. See Kashin, 2007 WL 1975435, at *2; see also S.D. Cal. CivLR 83.1(a) 19 (providing that failure to comply with the Civil Local Rules “may be grounds for 20 imposition by the Court of any and all sanctions authorized by statute or rule or within the 21 inherent power of the Court”). But Defendants’ arguments in their Reply (“Reply,” ECF 22 No. 23) also largely mimic their arguments in their Motion to Dismiss, reinforcing the 23 superfluity of the Sur-Reply.1 Accordingly, the Court sua sponte STRIKES Plaintiff’s 24
25 1 To the extent Defendants raise the new argument in their Reply—not rooted in their Motion to Dismiss— 26 that Plaintiff lacks Article III standing to sue Defendant Long, see Reply at 8–9, the Court will not consider that argument outside of the Court’s independent “duty to establish subject matter jurisdiction [which] is 27 not contingent upon the parties’ arguments.” United Invs. Life Ins. Co. v. Waddell & Reed Inc., 28 360 F.3d 960, 966 (9th Cir. 2004); see also United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) 1 Sur-Reply (ECF No. 24) and “will not consider the sur-reply brief in resolving the motion 2 to dismiss . . . .”2 Hill, 2005 WL 3031136, at *1 (“It is apparent from the sur-reply brief 3 that plaintiff is merely posing the same or additional arguments in opposition to the motion 4 to dismiss.”). 5 As to his request for a hearing on the Motion to Dismiss, Plaintiff represents that he 6 has been diagnosed with dyslexia and a learning disability, thus presenting “significant 7 challenges in written communication, including organizing and articulating complex legal 8 arguments effectively.” Mot. at 2. Citing this nation’s longstanding recognition of 9 leniency afforded pro se litigants and the United States Supreme Court’s extension of 10 Title II of the Americans with Disabilities Act (“ADA”) to judicial proceedings, see id. at 3 11 (citing Tennessee v. Lane, 541 U.S. 509 (2004)), Plaintiff essentially seeks a reasonable 12 accommodation to ensure his disabilities do not “impair his ability to communicate 13 effectively” with the Court, see id. In short, Plaintiff argues that holding an oral argument 14 would aid the Court in addressing the complex issues at the heart of this case in light of 15 Plaintiff’s struggle to communicate in writing. See id. at 4 (citing Greenwood v. Fed. 16 Aviation Admin., 28 F.3d 971 (9th Cir. 1994)). Defendants have not filed a response. 17
18 event, Plaintiff’s Sur-Reply is not responsive to Defendants’ newly raised argument, so the Sur-Reply is 19 otherwise unhelpful in assisting the Court in resolving the instant Motion to Dismiss. 20 2 In the Sur-Reply, Plaintiff also seeks jurisdictional discovery related to Valley View Casino’s “other 21 potential governmental partnerships or agreements” because they are purportedly “critical for understanding the full scope of the Casino’s obligations under federal law.” Sur-Reply at 7. This request 22 asks too much as “a mere hunch that discovery might yield jurisdictionally relevant facts, or bare allegations in the face of specific denials are insufficient reasons for a court to grant jurisdictional 23 discovery.” Smith v. Progressive Produce LLC, 2022 WL 1210647, at *4 (D. Ariz. Mar. 1, 2022) (quoting 24 LNS Enters. LLC v. Cont’l Motors, Inc., 22 F.4th 852, 864–65 (9th Cir. 2022)).
25 Plaintiff further seeks discovery related to Defendant Long’s role at Valley View Casino, see Sur-Reply at 8, but discovery is strongly disfavored, absent extraordinary circumstances, “[w]hen a case is still in 26 the pleadings stage and a motion to dismiss is pending,” Duran v. City of Porterville, No. 1:12-cv-1239-LJO BAM, 2013 WL 12430031, at *1 (E.D. Cal. Jan. 17, 2013). 27
28 Thus, even if the Court had accepted the Sur-Reply, Plaintiff’s discovery requests would have been 1 To the extent Plaintiff suggests he is entitled to an oral hearing, that suggestion is 2 misplaced. When the Court took this matter under submission without oral argument on 3 October 2, 2024, it properly exercised its discretion under the applicable rules of procedure. 4 See Fed. R. Civ. P. 78(b) (“By rule or order, the court may provide for submitting and 5 determining motions on briefs, without oral hearings.”); see also S.D. Cal. CivLR 7.1(d)(1) 6 (“A judge may, in the judge’s discretion, decide a motion without oral argument.”). So too 7 did the Court exercise its discretion within the limits of constitutional due process. See 8 Morrow v. Topping, 437 F.2d 1155, 1156–57 (9th Cir. 1971) (holding that a district court 9 that acted on a motion to dismiss without oral argument “did [not] deny plaintiff due 10 process of law” (citing Fed.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GARRETT MICHAEL GOLDUP, Case No.: 24-CV-786 JLS (AHG)
12 Plaintiff, ORDER: 13 v. (1) SUA SPONTE STRIKING 14 VALLEY VIEW CASINO & HOTEL; PLAINTIFF’S OPPOSITION TO JOHN DOE NO. 1; JOHN DOE NO. 2; 15 DEFENDANTS’ REPLY IN and BOYD LONG, SUPPORT OF MOTION TO 16 Defendants. DISMISS AND REQUEST FOR 17 DISCOVERY, AND
18 (2) GRANTING PLAINTIFF’S 19 MOTION REQUESTING ORAL ARGUMENTS 20
21 (ECF Nos. 24, 25)
22 23 Presently before the Court is Plaintiff Garrett Michael Goldup’s Motion Requesting 24 Oral Arguments (“Mot.,” ECF No. 25). Plaintiff’s Motion pertains to Defendants Valley 25 View Casino & Hotel and Boyd Long’s Motion to Dismiss Second Amended Complaint 26 (“MTD,” ECF No. 18). On October 2, 2024, the Court vacated the originally scheduled 27 October 9, 2024 hearing on the Motion to Dismiss and took the Motion to Dismiss under 28 submission. ECF No. 20. After the Motion to Dismiss became fully briefed pursuant to 1 Civil Local Rule 7.1(e), Plaintiff filed a Sur-Reply, styled an Opposition to Defendants’ 2 Reply in Support of Motion to Dismiss and Request for Discovery (“Sur-Reply,” ECF 3 No. 24), and about three months later, filed the instant Motion Requesting Oral Arguments. 4 As an initial matter, Plaintiff improperly filed the Sur-Reply without Court 5 permission. See S.D. Cal. CivLR 7.1(e). “The Local Rules in this District do not authorize 6 the filing of a sur-reply,” and Plaintiff did not seek leave of Court to do so here. Est. of 7 Alvarado v. Tackett, No. 13-CV-1202 W (JMA), 2018 WL 1141502, at *1 (S.D. Cal. 8 Mar. 2, 2018). Local Rule 7.1 is “no empty formality.” Kashin v. Kent, 9 No. 02CV2495-LAB (WMC), 2007 WL 1975435, at *1 (S.D. Cal. Apr. 26, 2007), aff’d, 10 342 F. App’x 341 (9th Cir. 2009). It facilitates the orderly administration of noticed 11 motions such that every party has an opportunity to be heard. The Court has “the discretion 12 to either permit or preclude the filing of a sur-reply,” and that discretion “should be 13 exercised in favor of allowing a sur-reply only where a valid reason for such additional 14 briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. 15 England, No. CVF05869RECTAG, 2005 WL 3031136 (E.D. Cal. Nov. 8, 2005) (quoting 16 Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005)). 17 Plaintiff’s failure to comply with the Civil Local Rules is grounds enough to reject 18 the filing. See Kashin, 2007 WL 1975435, at *2; see also S.D. Cal. CivLR 83.1(a) 19 (providing that failure to comply with the Civil Local Rules “may be grounds for 20 imposition by the Court of any and all sanctions authorized by statute or rule or within the 21 inherent power of the Court”). But Defendants’ arguments in their Reply (“Reply,” ECF 22 No. 23) also largely mimic their arguments in their Motion to Dismiss, reinforcing the 23 superfluity of the Sur-Reply.1 Accordingly, the Court sua sponte STRIKES Plaintiff’s 24
25 1 To the extent Defendants raise the new argument in their Reply—not rooted in their Motion to Dismiss— 26 that Plaintiff lacks Article III standing to sue Defendant Long, see Reply at 8–9, the Court will not consider that argument outside of the Court’s independent “duty to establish subject matter jurisdiction [which] is 27 not contingent upon the parties’ arguments.” United Invs. Life Ins. Co. v. Waddell & Reed Inc., 28 360 F.3d 960, 966 (9th Cir. 2004); see also United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) 1 Sur-Reply (ECF No. 24) and “will not consider the sur-reply brief in resolving the motion 2 to dismiss . . . .”2 Hill, 2005 WL 3031136, at *1 (“It is apparent from the sur-reply brief 3 that plaintiff is merely posing the same or additional arguments in opposition to the motion 4 to dismiss.”). 5 As to his request for a hearing on the Motion to Dismiss, Plaintiff represents that he 6 has been diagnosed with dyslexia and a learning disability, thus presenting “significant 7 challenges in written communication, including organizing and articulating complex legal 8 arguments effectively.” Mot. at 2. Citing this nation’s longstanding recognition of 9 leniency afforded pro se litigants and the United States Supreme Court’s extension of 10 Title II of the Americans with Disabilities Act (“ADA”) to judicial proceedings, see id. at 3 11 (citing Tennessee v. Lane, 541 U.S. 509 (2004)), Plaintiff essentially seeks a reasonable 12 accommodation to ensure his disabilities do not “impair his ability to communicate 13 effectively” with the Court, see id. In short, Plaintiff argues that holding an oral argument 14 would aid the Court in addressing the complex issues at the heart of this case in light of 15 Plaintiff’s struggle to communicate in writing. See id. at 4 (citing Greenwood v. Fed. 16 Aviation Admin., 28 F.3d 971 (9th Cir. 1994)). Defendants have not filed a response. 17
18 event, Plaintiff’s Sur-Reply is not responsive to Defendants’ newly raised argument, so the Sur-Reply is 19 otherwise unhelpful in assisting the Court in resolving the instant Motion to Dismiss. 20 2 In the Sur-Reply, Plaintiff also seeks jurisdictional discovery related to Valley View Casino’s “other 21 potential governmental partnerships or agreements” because they are purportedly “critical for understanding the full scope of the Casino’s obligations under federal law.” Sur-Reply at 7. This request 22 asks too much as “a mere hunch that discovery might yield jurisdictionally relevant facts, or bare allegations in the face of specific denials are insufficient reasons for a court to grant jurisdictional 23 discovery.” Smith v. Progressive Produce LLC, 2022 WL 1210647, at *4 (D. Ariz. Mar. 1, 2022) (quoting 24 LNS Enters. LLC v. Cont’l Motors, Inc., 22 F.4th 852, 864–65 (9th Cir. 2022)).
25 Plaintiff further seeks discovery related to Defendant Long’s role at Valley View Casino, see Sur-Reply at 8, but discovery is strongly disfavored, absent extraordinary circumstances, “[w]hen a case is still in 26 the pleadings stage and a motion to dismiss is pending,” Duran v. City of Porterville, No. 1:12-cv-1239-LJO BAM, 2013 WL 12430031, at *1 (E.D. Cal. Jan. 17, 2013). 27
28 Thus, even if the Court had accepted the Sur-Reply, Plaintiff’s discovery requests would have been 1 To the extent Plaintiff suggests he is entitled to an oral hearing, that suggestion is 2 misplaced. When the Court took this matter under submission without oral argument on 3 October 2, 2024, it properly exercised its discretion under the applicable rules of procedure. 4 See Fed. R. Civ. P. 78(b) (“By rule or order, the court may provide for submitting and 5 determining motions on briefs, without oral hearings.”); see also S.D. Cal. CivLR 7.1(d)(1) 6 (“A judge may, in the judge’s discretion, decide a motion without oral argument.”). So too 7 did the Court exercise its discretion within the limits of constitutional due process. See 8 Morrow v. Topping, 437 F.2d 1155, 1156–57 (9th Cir. 1971) (holding that a district court 9 that acted on a motion to dismiss without oral argument “did [not] deny plaintiff due 10 process of law” (citing Fed. Commc’ns Comm’n v. WJR, The Goodwill Station, Inc., 11 337 U.S. 265, 272–85 (1949))). And despite Plaintiff’s invocation of the ADA, “[i]t is 12 well-settled . . . that the federal government, including its district courts, is exempted” from 13 coverage under Title II of the ADA. Patrick v. U.S. Postal Serv., 14 No. CV-10-0650-PHX-ECV, 2010 WL 4879161, at *2 (D. Ariz. Nov. 23, 2010) (first 15 citing Cellular Phone Taskforce v. Fed. Commc’ns Comm’n, 217 F.3d 72, 73 (2d Cir. 16 2000); then citing Thomas v. Nakatani, 128 F. Supp. 2d 684, 691 (D. Haw. 2000); and then 17 citing Turgeon v. Brock, No. CIV. 94-269-SD, 1994 WL 803506, at *1 (D.N.H. 1994)). 18 Nevertheless, “[t]he Judicial Conference of the United States has long supported full 19 access to judicial proceedings by all segments of the disabled community.” Id. at *4. To 20 that end, the Judicial Conference has “adopted a policy that all federal courts should 21 provide reasonable accommodations to persons with communications disabilities.” Report 22 of the Proceedings of the Judicial Conference 75 (Sept. 1995); see also Guide to Judiciary 23 Policy (the “Guide”), Vol. 5, Ch 2, § 255 (requiring courts to “provide sign language 24 interpreters or other auxiliary aids and services to participants in federal judicial 25 proceedings who are deaf, hearing impaired, or have communication disabilities”).3 Thus, 26
27 3 The Guide, available only to the federal judiciary at http://jnet.ao.dcn/Guide/Index.html, “is the official 28 medium by which direction as to courtroom procedures and other information are provided to the Federal 1 || although the Court finds that the written materials Plaintiff has filed with the Court are 2 coherent and clearly articulate Plaintiff's arguments as they pertain to Defendants’ Motion 3 ||to Dismiss, it is in the interests of justice, because of Plaintiff's purported dyslexia and 4 ||learning disabilities, to permit Plaintiff an opportunity to orally express to the Court his 5 || positions as they relate to Defendants’ Motion to Dismiss. However, “to secure the just, 6 speedy, and inexpensive determination of [this] proceeding,” Fed. R. Civ. P. 1, the Court 7 || will not require the Parties to appear in person and will only allow each side a modest ten 8 ||(10) minutes to make their presentation. 9 Accordingly, Plaintiff's Motion Requesting Oral Arguments (ECF No. 25) is 10 GRANTED. The Court SETS a telephonic hearing for Defendants’ Motion to Dismiss 11 || ECF No. 18) for February 20, 2025, at 10:00 a.m. PST. The Parties SHALL CONTACT 12 ||the Courtroom Deputy by e-mail at Adrianna_Garcia@casd.uscourts.gov □ for 13 || teleconferencing access information in advance of the hearing. 14 IT IS SO ORDERED. 13 |! Dated: January 31, 2025 tt 16 jen Janis L. Sammartino 7 United States District Judge 18 19 20 21 22 23 24 25 26 2T YO 9g || by [the] Director of the Administrative Office (“AO”) and approved by the Judicial Conference of the United States.” Kitzmiller v. Dover Area Sch. Dist., 388 F. Supp. 2d 484, 486-87 (M.D. Pa. 2005).