Rusoff v. The Happy Group, Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JONATHAN RUSOFF, et al., Case No. 21-cv-08084-AMO

8 Plaintiffs, ORDER RE OBJECTIONS TO NEW 9 v. EVIDENCE AND REQUEST FOR LEAVE TO FILE SUR-REPLY; 10 THE HAPPY GROUP, INC., VACATING HEARING ON MOTION FOR CLASS CERTIFICATION Defendant. 11 Re: Dkt. No. 81

13 On July 28, 2023, The Happy Group filed “Objections to New Evidence and Request for 14 Leave to File Sur-Reply.” ECF No. 81. In the filing, The Happy Group objects to new evidence 15 submitted for the first time with Rusoff’s reply in support his motion for class certification,1 16 moves to strike the evidence pursuant to Fed. R. Civ. P. 37(c), or alternatively, seeks leave to file a 17 sur-reply. Id. The proposed four-page sur-reply is attached to The Happy Group’s filing, together 18 with a five-page “Response to new material by Joy Mench, D. Phil” and 271 pages of exhibits. 19 ECF 81-1, 81-2. 20 On July 31, 2023, Rusoff filed a response to The Happy Group’s filing. ECF 82. Rusoff 21 argues, among other things, that the documents in dispute are publicly available, and that there is 22 no obligation to produce publicly-available documents that are equally available to the opposing 23 party. ECF 82 at 2. Rusoff also points out that The Happy Group’s request to strike was not filed 24 as a properly-noticed motion pursuant to Fed. R. Civ. P. 37. Id. at 2 n.1. 25 Other than the objections to reply evidence, the parties’ filings are not properly before the 26 27 1 Court. With the exception of a statement of recent decision or an objection to reply evidence, 2 “To|nce a reply is filed, no additional memoranda, papers or letters may be filed without prior 3 Court approval[.]” Civil L.R. 7-3(d). “[A] motion brought under [Local] Rule 7-11 is an 4 || appropriate vehicle for seeking” such approval. Michael Taylor Designs, Inc. v. Travelers Prop. 5 Cas. Co. of Am., 761 F. Supp. 2d 904, 909 (N.D. Cal. 2011), aff'd, 495 F. App’x 830 (9th Cir. 6 || 2012). 7 Neither party has filed an administrative motion seeking leave of Court. For that reason, 8 || the Court has not considered the substance of the parties’ non-compliant filings beyond what is 9 || necessary to provide the guidance set forth in this Order. To the extent The Happy Group seeks 10 || relief under Fed. R. Civ. P. 37(c), it shall file a properly-noticed motion in compliance with Civil 11 Local Rule 7-2. Rusoff may respond to that motion in accordance with Civil Local Rule 7-3. 12 Prior to filing the motion, the parties must meet and confer in accordance with the District 5 13 Guidelines for Professional Conduct. As relevant here, the Guidelines provide: “Motions should 14 || be filed or opposed only in good faith and when the issue cannot be otherwise resolved.” 3 15 Guidelines for Prof’| Conduct 4 10. If, after meeting and conferring in good faith, the parties 16 || reach a resolution, such as permitting the filing of the proposed sur-reply and the filing of a 3 17 response thereto, they may submit a stipulation and proposed order for the Court’s consideration. 18 The hearing on the motion for class certification, currently set for August 31, 2023, is 19 || vacated pending receipt of the parties’ forthcoming filings. 20 IT IS SO ORDERED. 21 Dated: August 25, 2023 22 nace. Mit ARACELI MARTINEZ-OLGUIN United States District Judge 25 26 27 28