Howell v. Leprino Foods Company

Opinion

ANDREW HOWELL, on behalf of CASE NO. 1:18-cv-01404-AWI-BAM himself and on behalf of all other similarly situated individuals ORDER ON DEFENDANTS’ REQUEST Plaintiff FOR LEAVE TO FILE SUR-REPLY IN OPPOSITION TO MOTION FOR v. CLASS CERTIFICATION, OR ALTERNATIVELY, REQUEST FOR LEPRINO FOODS COMPANY, a ORAL ARGUMENT Colorado Corporation; LEPRINO COMPANY, a Colorado Corporation; (Doc. No. 98) and DOES 1–50, inclusive,

Defendants

Before the Court is Defendants Leprino Foods Company and Leprino Foods Dairy Products Company’s (collectively, “Leprino”) request for leave to file a sur-reply or present oral argument in support of their Opposition to Plaintiff Andrew Howell’s (“Howell”) Motion for Class Certification. The Court generally views motions for leave to file sur-replies with disfavor. Camposeco v. Boudreaux, 2021 U.S. Dist. LEXIS 195447, *12 (E.D. Cal. Oct. 7, 2021); Willard v. Neibert, 2016 U.S. Dist. LEXIS 166201, *4 (E.D. Cal. Dec. 1, 2016). Neither the Local Rules nor the Federal Rules provide the right to file a sur-reply. Pontius v. IRS, 2014 U.S. Dist. LEXIS 60109, *2 (E.D. Cal. Apr. 4, 2014). However, District courts have the discretion to either permit or preclude a sur- reply. Willard, 2016 U.S. Dist. LEXIS at *4. This 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.” Hill v. England, 2005 U.S. Dist. LEXIS 29357, *2 (E.D. Cal. Nov. 8, 2005). een SO SEI IID

Leprino claims it is entitled to file a sur-reply because Howell’s Reply brief presents, for the time, certain issues and evidence that ask the Court to strike or view with skepticism certain declarations and testimony presented by Leprino. Howell claims Leprino’s request should be denied because Howell’s Reply brief does not present any new arguments or evidence. The Court has addressed a materially similar circumstance in Perez v. Leprino Foods Co., 2021 U.S. Dist. LEXIS 2165, *53 (E.D. Cal. Jan. 6, 2021). As in Perez, the Court will decline Howell’s invitation to strike or otherwise disregard any of the challenged declarations and testimony presented by Leprino.' See id. Accordingly, Leprino’s request to file a sur-reply will be denied. Accordingly, IT IS HEREBY ORDERED that Defendants’ request to file a sur-reply (Doc. No. 98) is DENIED. Dated: _ February 24, 2022 7 Zz : Z Cb Led -_-SENIOR DISTRICT JUDGE 97 ! The Court recognizes that presenting new arguments and evidence in a Reply brief is improper. If Howell presented truly new arguments or evidence in his Reply brief, then the Court will not consider them. JG v. Douglas Cty. Sch. Dist., [552 F.3d 786, 805 (9th Cir. 2008) (district court did not abuse discretion in denying leave to file sur-reply where it did not consider new evidence in reply).