Kim C Kristoff v. Ryan Thornell, et al.

• Court: District Court, D. Arizona
• Decided: May 12, 2026
• Docket: 2:24-cv-03395
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kim C Kristoff, No. CV-24-03395-PHX-DWL

10 Petitioner, ORDER

11 v.

12 Ryan Thornell, et al.,

13 Respondents. 14 15 On February 6, 2026, Magistrate Judge Boyle issued a Report and Recommendation 16 (“R&R”) recommending that the Petition for Writ of Habeas Corpus be denied and 17 dismissed with prejudice and that a pending motion to stay be denied. (Doc. 20.) 18 On March 20, 2026, following a deadline extension (Doc. 22), Petitioner filed an 19 objection to the R&R. (Doc. 23.) 20 On April 29, 2026, Petitioner filed a notice of supplemental authority, stating that 21 “[o]n April 20, 2026, the United States Supreme Court denied the petition for writ of 22 certiorari in Thornell v. Bieganski, No. 25-690,” such that “[t]he Ninth Circuit’s decision 23 in Bieganski v. Shinn, 149 F.4th 1055 (9th Cir. 2025), is now final and binding precedent 24 in this Circuit.” (Doc. 26.) 25 On May 4, 2026, following a deadline extension (Doc. 25), Respondents filed a 26 response to the objection. (Doc. 27.)1 27 On May 8, 2026, Petitioner filed a motion for leave to file a reply brief, asserting

28 1 Both the objection and the response were oversized, although leave to file an oversized brief was sought only by Respondents. (Doc. 29.) 1 that “Respondents’ Response raises at least four categories of argument that did not appear 2 in the R&R and to which Petitioner had no opportunity to respond in the Objections” and 3 identifying the four arguments. (Doc. 30.) The proposed reply was attached as Exhibit A 4 to the motion for leave to file. (Doc. 30-1.) 5 On May 11, 2026, Respondents filed a motion to strike Petitioner’s motion for leave 6 to file a reply. (Doc. 31.) 7 I. Motion To Strike 8 “Unless made at trial, a motion to strike may be filed only if it is authorized by 9 statute or rule, such as Federal Rules of Civil Procedure 12(f), 26(g)(2) or 37(b)(2)(A)(iii), 10 or if it seeks to strike any part of a filing or submission on the ground that it is prohibited 11 (or not authorized) by a statute, rule, or court order.” LRCiv 7.2(m). Respondents’ motion 12 to strike notes that the rules do not authorize a reply in support of objections to an R&R. 13 But Petitioner did not file a reply—Petitioner filed a motion acknowledging that the rules 14 do not authorize a reply and seeking relief from the Court in the form of leave to file what 15 would, without leave, be an unauthorized reply. The Court is aware of no rule prohibiting 16 Petitioner from requesting leave to file an otherwise unauthorized reply. See, e.g., Warren 17 v. City of Chico, 2024 WL 4803960, *1 (E.D. Cal. 2024) (“[N]othing in the Federal Rules 18 of Civil Procedure prevents the court from granting a party leave to file [an otherwise 19 unauthorized brief].”). 20 Thus, Respondents’ motion to strike is denied, and the arguments therein are 21 construed as Respondents’ response to Petitioner’s motion for leave. 22 II. Motion For Leave To File Reply 23 Because a reply in support of an objection to an R&R is not authorized by the rules, 24 Petitioner’s proposed reply “is functionally a sur-reply.” Tounget v. Valley-Wide 25 Recreation & Park Dist., 2020 WL 8410456, *2 (C.D. Cal. 2020). “A decision to grant or 26 deny leave to file a sur-reply is generally committed to the sound discretion of the court.” 27 Id. Courts sometimes grant leave to file a sur-reply “in order to consider evidence or 28 arguments that give a more complete picture of the issues in need of resolution.” Id.; cf. 1 Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (district court erred in considering 2 evidence raised in reply brief without affording opponent an opportunity to respond). 3 Specifically, leave to file a sur-reply is often granted when an additional briefing 4 opportunity is needed to address new arguments set forth for the first time in what would 5 otherwise be the final brief in the normal briefing schedule. See, e.g., Swartzmiller Assocs. 6 Inc. v. Das Holz Haus LLC, 2025 WL 317598, at *1 n.1 (D. Ariz. 2025) (“Because 7 [Plaintiff] raised additional arguments in its reply . . . , the Court concludes, in its 8 discretion, that Defendants should be allowed to file their proposed sur-reply, which 9 provides additional information bearing on that issue.”); Fitzhugh v. Miller, 2020 WL 10 1640495, 9 (D. Ariz. 2020) (“Although the Court may in its discretion allow the filing of 11 a surreply, this discretion should be exercised in favor of allowing a surreply only where a 12 valid reason for such additional briefing exists, such as where the movant raises new 13 arguments in its reply brief.”); Paradise Ent. Ltd. v. Empire Tech. Grp. Ltd., 2025 WL 14 3004664, *1 (D. Nev. 2025) (granting leave to file sur-reply where moving party raised 15 new matters for the first time in a reply brief). 16 Petitioner identifies four new arguments Respondents advanced for the first time in 17 the response to the objection. (Doc. 30 at 3-4.) Respondents do not deny that they 18 advanced four new arguments. Respondents’ main rejoinder is that affording Petitioner “a 19 fair opportunity to reply to the arguments Respondents raised” could “permit briefing to 20 go on forever” because “Respondents could just as easily respond that they should also be 21 given permission to file a Sur-Reply in light of the new arguments he raises in his Reply.” 22 (Doc. 31 at 3.) The Court is not overly concerned about this slippery slope contention, as 23 it has no plans to allow “an endless volley of briefs” and is capable of determining when 24 allowing another brief is “appropriate.” Warren, 2024 WL 4803960 at *2. At any rate, 25 Respondents have not requested leave to file a sur-reply. 26 The Court, in its discretion, will permit a reply from Petitioner. The objection to 27 the R&R will be resolved in a future order, in due course. 28 Accordingly, 1 IT IS ORDERED that: 2 1. The referral to the magistrate judge as to Respondents’ motion to strike (Doc. 3 || 31) and Petitioner’s motion for leave to file a reply (Doc. 30) is withdrawn. 4 2. Respondents’ motion to strike (Doc. 31) is denied. 5 3. Petitioner’s motion for leave to file a reply (Doc. 30) is granted. The Clerk 6 || of Court shall file the reply (Doc. 30-1) as a standalone docket entry. 7 Dated this 12th day of May, 2026. 8 9 =) 10 f t _o——— Dominic W, Lanza 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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