Opinion
Civil Action No. 1:19-cv-03465-SKC
08-05-2020
DESCHENES CONSULTING LLC, and JOSHUA DESCHENES, Plaintiffs, v. NU LIFE MARKET LLC, and EARL ROEMER, Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE A SUR-REPLY IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT [#48]
This Order addresses Plaintiffs' Motion for Leave to File a Sur-Reply in Opposition to Defendants' Motion to Dismiss First Amended Complaint [#48] ("Motion"). The Court reviewed the Motion, all related briefing, the entire record, and applicable law. No hearing is necessary. For the following reasons, the Motion is DENIED.
The Court uses "[#___ ]" to refer to entries in the CM/ECF Court filing system.
DISCUSSION
Plaintiffs seek leave to file a sur-reply "with respect only to Defendants' arguments [in their briefing on their Motion to Dismiss [#29]] that Defendant Roemer should be dismissed from the case because he did not . . . direct any tortious conduct toward Plaintiffs in Colorado." [#48 at p.2.] This alleged tortious conduct includes Defendants' repeated "threats" of criminal arrest and prosecution directed at Plaintiff Joshua Deschenes. [#20 at ¶140.] Plaintiffs argue new evidence Defendants produced in discovery, specifically a police report filed by Defendant Earl Roemer, "directly contradicts Defendants' statements . . . regarding Defendant Roemer's personal involvement in directing [threats of criminal arrest and prosecution] toward Plaintiffs." [See generally #48.]
The Court has discretion to permit a nonmoving party to submit a sur-reply to respond to new material raised in a reply. Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005); see also Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998). Here, Plaintiffs do not seek leave to file the sur-reply to respond to new material raised in Defendants' reply. Instead, they seek leave to file a sur-reply to further respond to Defendants' personal jurisdiction argument raised in their Motion to Dismiss [#29]. [See generally #48.] Moreover, the new material (the police report) was not raised in Defendants' reply, but rather, was uncovered through discovery. [Id. at p. 1.] A sur-reply is not warranted under these circumstances. See Green, 420 F.3d at 1196.
To the extent Plaintiffs' argue the sur-reply is necessary to correct the record, the Court disagrees. The existence of a police report, alone, has no bearing on whether Defendant Roemer, in fact, threatened arrest and prosecution toward Plaintiffs in Colorado. Thus, the report is of no consequence to the Court's personal jurisdiction analysis; specifically, whether Defendants directed tortious conduct, i.e. threats, toward Plaintiffs in Colorado. --------
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Accordingly, IT IS ORDERED that the Motion for Sur-reply is DENIED.
DATED: August 5, 2020.
BY THE COURT:
/s/_________
S. Kato Crews
U.S. Magistrate Judge