Opinion
1:13-CV-0084 AWI BAM
04-12-2013
CARLOSE SILVEIRA, GEOREGETTE PICKETT, and CHARLES HUGHES, as individuals and on behalf of all others similarly situated, Plaintiffs, v. JEFFREY A. BEARD, in his official capacity as the Secretary of the California Department of Corrections and Rehabilitation, and DOES 2 through 10, inclusive Defendants.
ORDER ON PLAINTIFFS' EX
PARTE APPLICATION TO
FILE A SURREPLY
(Doc. No. 26)
On April 11, 2013, the Court vacated a hearing on Defendants' motion to dismiss. The same day, Plaintiffs' filed an ex parte application to file a sur-reply. See Doc. No. 26. The sur-reply is attached as an exhibit to the application itself. Plaintiffs sur-reply is limited to addressing a Ninth Circuit case that was decided on April 4, 2013, and that was cited in Defendants' April 8, 2013, reply. The case, North East Med'l Servs., Inc. v. California Dept. of Health Care Servs., 11-16759 (9th Cir. Apr. 4, 2013), was decided after Plaintiffs filed their opposition. Plaintiffs indicate that they contacted Defendants about filing a sur-reply, but that defense counsel stated in an e-mail that he would oppose the request to file a sur-reply.
In an e-mail to the courtroom deputy, Defendant has indicated that he wishes to oppose Plaintiffs' application and asks for two days to file their opposition. Additionally, Defendants request time to file a reply to the sur-reply.
The e-mail is in the nature of a procedural inquiry. It informs the Court that Defendant wishes to file an opposition, and then asks how Defendant should request permission to respond to the sur-reply. Neither the merits of the request to file a sur-reply nor the motion to dismiss are discussed.
Defendants will not be permitted to file an opposition to the application. Plaintiffs' application is modest and reasonable. Permitting time for the parties to file briefing on North East will not cause a material delay in resolving the motion to dismiss. Because of the weight of the Court's docket, no decision on the motion should be expected for several weeks in any event. Given that the North East case is so new, Plaintiffs' request will be granted and Defendants will be allowed to file a response to the sur-reply.
Therefore, IT IS HEREBY ORDERED that: 1. Plaintiffs' ex parte request to file a sur-reply is GRANTED; 2. Plaintiffs' sur-reply, which is Doc. No. 26-2, is considered FILED and the Court will consider that document in resolving the motion to dismiss; and 3. Defendants may file a response to the sur-reply no later than April 19, 2013. IT IS SO ORDERED.
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SENIOR DISTRICT JUDGE