Opinion
Case No. 2:13-cv-00853-GMN-PAL
07-25-2013
KYLE ZABELNY, an individual AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. CASHCALL, INC., a foreign corporation, DOES I through X; and ROE Corporations I through X, inclusive, Defendants.
LIONEL SAWYER & COLLINS Malani L. Kotchka Esra A. Hudson Justin C. Johnson MANATT, PHELPS AND PHILLIPS, LLP Attorneys for Defendant
Malani L. Kotchka
Nevada Bar No. 283
mkotchka@lionelsawyer.com
LIONEL SAWYER & COLLINS
300 South 4th Street, Suite 1700
Las Vegas, NV 89101
Telephone: (702) 383-8888
Facsimile: (702) 383-8845
Esra A. Hudson (Pro Hac Vice)
California Bar No. 202881
ehudson@manatt.com
Justin C. Johnson (Pro Hac Vice)
California Bar No. 252175
jjohnson@manatt.com
MANATT, PHELPS AND PHILLIPS, LLP
11355 West Olympic Boulevard
Los Angeles, CA 90064
Telephone: (310) 312-4381
Facsimile: (310) 914-5744
Attorneys for Defendant
CASHCALL, INC.
DEFENDANT'S REQUEST TO FILE
A RESPONSE TO PLAINTIFF'S SUR-
REPLY IN SUPPORT OF ITS
MOTION TO COMPEL
ARBITRATION; PROPOSED ORDER
THEREON
On June 24, 2013, Defendant CashCall, Inc. ("CashCall") filed a Notice of New Authority attaching the opinion in American Express Co. v. Italian Colors Restaurant, 2013 U.S. LEXIS 4700 ("American Express") (Doc 24), which was issued after the briefing was completed on CashCall's Motion to Compel Arbitration (Doc 6). In two paragraphs, the Notice of New Authority simply recited the holding in American Express without any argument or application to the facts of this case. On July 12, 2013, the Court granted Plaintiff's request to file a Sur-Reply to address the American Express case. (Doc 30). On July 23, 2013, Plaintiff filed his five-page Sur-Reply. (Doc 31.) By this motion, CashCall respectfully requests leave to file a response to Plaintiff's Sur-Reply, that will not exceed five pages, within five days of any Court order granting such leave.
Such leave is appropriate in the interest of fairness, and pursuant to local rules that afford the moving party the right to submit the final briefing on motions. Specifically, CashCall has not yet had the opportunity to address American Express's implications to the facts of this case. Rather, CashCall merely filed the Notice of New Authority that did not contain any argument or analysis. CashCall intentionally filed a non-argumentative notice out of fairness and in an attempt to foreclose further briefing. However, now that Plaintiff has been afforded the opportunity to address the implications of this new authority to the circumstances of this case, CashCall should be afforded the like opportunity.
Such a result comports with Local Rule 7-2, which affords the moving party the opportunity to submit the final briefing on a motion. Authorizing CashCall to file a brief response to Plaintiff's Sur-Reply will restore the briefing order contemplated by Local Rule 7-2.
In addition, Plaintiff has expanded the opportunity granted by the Court to file a Sur-Reply for the limited purpose of addressing American Express, to argue separate and distinct points based on new authority that neither party had previously cited. For example, in a non-sequitur to distinguishing American Express, Plaintiff devotes a substantial portion of the Sur-Reply to reargue that the FLSA creates non-waivable statutory rights, and cites numerous cases that Plaintiff did not previously cite in his Opposition brief to support this argument. See Doc 31 at 3:24-5:7. Permitting Plaintiff to interject new argument and authority in support of his Opposition under the guise of a Sur-Reply that was granted for the narrow purpose of permitting Plaintiff to address the American Express case, when such authority was available when Plaintiff filed his Opposition, would afford Plaintiff an undue advantage to CashCall's prejudice.
For all of the foregoing reasons, CashCall respectfully requests the opportunity to file a brief response to Plaintiff's Sur-Reply. If the Court grants such relief, CashCall will file its response, not to exceed five pages, within five days of the Court's order.
Respectfully submitted,
LIONEL SAWYER & COLLINS
By: ______________________
Malani L. Kotchka
Esra A. Hudson
Justin C. Johnson
MANATT, PHELPS AND PHILLIPS, LLP
Attorneys for Defendant
ORDER
IT IS SO ORDERED that Defendant's Motion to File a Response to Plaintiff's Sur-Reply (Dkt. #33) is GRANTED.
______________________
Peggy A. Leen
United States Magistrate Judge