Owen v. FDA Office of Generic Drugs

W.D. North Carolina

Owen v. FDA Office of Generic Drugs

CourtDistrict Court, W.D. North Carolina

DecidedMarch 30, 2021

Docket1:20-cv-00098

StatusUnknown

This text of Owen v. FDA Office of Generic Drugs (Owen v. FDA Office of Generic Drugs) is published on Counsel Stack Legal Research, covering District Court, W.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Owen v. FDA Office of Generic Drugs, (W.D.N.C. 2021).

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THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION CIVIL CASE NO. 1:20-cv-00098-MR

TED JACKSON OWEN, ) ) Plaintiff, ) ) vs. ) O R D E R ) FDA OFFICE OF GENERIC DRUGS, ) et al., ) ) Defendants. ) ____ ) THIS MATTER is before the Court on the pro se Plaintiff’s letter, which the Court construes as a Motion to File an Ex Parte Surreply. [Doc. 18]. The Plaintiff seeks leave to file a surreply ex parte in opposition to the Defendants’ Motion to Dismiss. [Doc. 18]. Nothing in the Court’s standard Pretrial Order and Case Management Plan authorizes the filing of a surreply brief. Further, surreplies are not allowed by the Local Civil Rules. See Miller v. Ingles, No. 1:09cv200, 2009 WL 4325218, at *16 (W.D.N.C. Nov. 24, 2009) (Howell, M.J.); see also LCvR 7.1(E) (discussing time frames for filing responses and replies with no reference to surreplies). Thus, the Plaintiff may file a surreply brief only with leave of Court. See Miller, 2009 WL 4325218, at *16. “Generally, courts allow a party to file a surreply only when fairness dictates based on new arguments raised in the previous reply.”

DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C. 2010). The Court does not find that fairness so dictates here. The Plaintiff argues that a surreply is warranted because he has not had “an opportunity

to present [his] case.” [Doc. 18 at 1]. However, the purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of the allegations of the Complaint, not to afford the parties the opportunity to prove the merits of their claims. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)

(noting that Rule 12(b)(6) motion “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses”). Here, the Plaintiff does not identify any new arguments asserted in the Defendants’

reply brief that he has not yet had an opportunity to address. Moreover, the Defendants’ motion has been exhaustively briefed, and the Court is more than capable of discerning the positions of the parties from the briefs that have already been filed. For all these reasons, the Plaintiff’s request to file

a surreply brief is denied.1

1 The Court further notes that the Plaintiff’s request to file any further briefing ex parte is wholly improper. 2 IT IS, THEREFORE, ORDERED that the pro se Plaintiff's letter, which the Court construes as a Motion to File an Ex Parte Surreply [Doc. 18], is DENIED. Signed: March 29, 2021 IT IS SO ORDERED. wi Martiff Reidinger ey Chief United States District Judge MS

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THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION CIVIL CASE NO. 1:20-cv-00098-MR

TED JACKSON OWEN, ) ) Plaintiff, ) ) vs. ) O R D E R ) FDA OFFICE OF GENERIC DRUGS, ) et al., ) ) Defendants. ) ____ ) THIS MATTER is before the Court on the pro se Plaintiff’s letter, which the Court construes as a Motion to File an Ex Parte Surreply. [Doc. 18]. The Plaintiff seeks leave to file a surreply ex parte in opposition to the Defendants’ Motion to Dismiss. [Doc. 18]. Nothing in the Court’s standard Pretrial Order and Case Management Plan authorizes the filing of a surreply brief. Further, surreplies are not allowed by the Local Civil Rules. See Miller v. Ingles, No. 1:09cv200, 2009 WL 4325218, at *16 (W.D.N.C. Nov. 24, 2009) (Howell, M.J.); see also LCvR 7.1(E) (discussing time frames for filing responses and replies with no reference to surreplies). Thus, the Plaintiff may file a surreply brief only with leave of Court. See Miller, 2009 WL 4325218, at *16. “Generally, courts allow a party to file a surreply only when fairness dictates based on new arguments raised in the previous reply.”

DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C. 2010). The Court does not find that fairness so dictates here. The Plaintiff argues that a surreply is warranted because he has not had “an opportunity

to present [his] case.” [Doc. 18 at 1]. However, the purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of the allegations of the Complaint, not to afford the parties the opportunity to prove the merits of their claims. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)

(noting that Rule 12(b)(6) motion “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses”). Here, the Plaintiff does not identify any new arguments asserted in the Defendants’

reply brief that he has not yet had an opportunity to address. Moreover, the Defendants’ motion has been exhaustively briefed, and the Court is more than capable of discerning the positions of the parties from the briefs that have already been filed. For all these reasons, the Plaintiff’s request to file

a surreply brief is denied.1

1 The Court further notes that the Plaintiff’s request to file any further briefing ex parte is wholly improper. 2 IT IS, THEREFORE, ORDERED that the pro se Plaintiff's letter, which the Court construes as a Motion to File an Ex Parte Surreply [Doc. 18], is DENIED. Signed: March 29, 2021 IT IS SO ORDERED. wi Martiff Reidinger ey Chief United States District Judge MS

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