Opinion
Case No.: 3:18-cv-840-GPC-BGS
01-28-2019
IN RE OUTLAW LABORATORY, LP LITIGATION
ORDER GRANTING EX PARTE MOTION TO FILE SUR-REPLY
[ECF No. 48]
Defendant/Counterclaimant Roma Mikha, Inc., and Third-Party Plaintiffs NMRM, Inc. and Skyline Market, Inc. (collectively, "Counterclaimants") have filed an ex parte motion for leave to file a sur-reply in opposition to Plaintiff/Counterdefendant Outlaw Laboratory, LP's ("Outlaw") motion to dismiss their amended first and second counterclaims. (ECF No. 48).
Counterclaimants seek leave to file a "short" sur-reply to address a case which Counterclaimants indicate was cited for the first time by Outlaw in its reply brief. (ECF No. 48-1. at 3.) Specifically, Counterclaimaints argue that Outlaw mischaracterized the legal holding of the court in In re Neurotin Marketing, 712 F.3d 51, 56-61 (1st Cir. 2013). Counsel for Outlaw has advised Counterclaimants that Outlaw opposes a sur-reply.
Although the Local Civil Rules do not provide for the filing of sur-replies, district courts have the discretion to permit or preclude such a filing. See, e.g., United States ex rel Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009). Such discretion should be exercised in favor of allowing a movant's request for a surreply only where a valid reason for additional briefing exists, such as where the non-moving party presented new arguments within their reply. See United States v. Venture One Mortg. Corp., No. 13-CV-1872 W (JLB), 2015 WL 12532139, at *2 (S.D. Cal. Feb. 26, 2015); see also Hammett v. Am Bakers Ins. Co., 203 F.R.D. 690, 695 n.1 (S. D. Fla. 2001) ("Because Plaintiff presented new arguments and a new theory for certification in her Reply the Court will grant Defendants' Motion for Leave to File a Sur-Reply.")
Because Counterclaimants seek to file a sur-reply for the limited purpose of addressing a case newly raised in Outlaw's reply, their motion is granted. Counterclaimants may file a "short" sur-reply no longer than 3 pages in length; such sur-reply must be submitted no later than January 31 , 2019 .
IT IS SO ORDERED. Dated: January 28, 2019
/s/_________
Hon. Gonzalo P. Curiel
United States District Judge