Opinion
Case No.: 2:08-cv-00968-RLH-RJJ.
February 7, 2011
ORDER (Motion to Strike — #126)
Before the Court is Defendants/Counter-Plaintiffs Ellen Strickland and E.B. Designworks Co., Inc.'s Motion to Strike (#126), filed February 4, 2011. Defendants ask the Court to strike Plaintiff World Market Center Venture, LLC's Replies (Dkt. ## 120, 123) because they were filed after the two-week time period set out in old Federal Rule of Civil Procedure 56(c)(1)(c), which was superseded as of December 1, 2010. Defendants timely filed their Responses (Dkt. ## 111, 113) on January 14, 2011. Therefore, the two week rule would have required Plaintiff to reply by January 28, 2011. Plaintiff's filing on February 3 was, therefore, almost one week late. However, the Court finds that this delay was not prejudicial to Defendants and therefore denies Defendants' motion.
Further, Defendants alternatively request the opportunity to file sur-reply briefs to address new issues and evidence that Plaintiff proffers in its Replies (Dkt. ## 120, 123). However, the Court determines that in lieu of allowing sur-reply briefing, it will simply not consider any new issues or evidence that Plaintiff presented improperly in its Replies (Dkt. ## 120, 123). See JG v. Douglas Cty. Sch. Dist., 552 F.3d 786, 803 n. 14 (9th Cir. 2008) (holding that rather than granting a party a chance to file a sur-reply, a district court may simply not consider the newly proffered material.)
Accordingly, and for good cause appearing,
IT IS HEREBY ORDERED that Defendants Motion to Strike is DENIED.
Dated: February 7, 2011.