Filed: Mar. 27, 2018
Latest Update: Mar. 27, 2018
Summary: ORDER GRANTING LEAVE TO FILE SURREPLY TO DEFENDANTS FILIPPINI AND MORONES' MOTION TO DISMISS UNDER RULE 12(B)(6) (Doc. No.'s 13, 20) ANTHONY W. ISHII , District Judge . Plaintiff has filed two claims under 28 U.S.C. 1983 against Defendants Filippini, Morones and Miller, claiming Defendants violated her First and Fourteenth Amendment rights. See Doc. No. 1. Defendants Filippini and Morones have moved to dismiss all claims against them under rule 12(b)(6). See Doc No. 13-1. In their in
Summary: ORDER GRANTING LEAVE TO FILE SURREPLY TO DEFENDANTS FILIPPINI AND MORONES' MOTION TO DISMISS UNDER RULE 12(B)(6) (Doc. No.'s 13, 20) ANTHONY W. ISHII , District Judge . Plaintiff has filed two claims under 28 U.S.C. 1983 against Defendants Filippini, Morones and Miller, claiming Defendants violated her First and Fourteenth Amendment rights. See Doc. No. 1. Defendants Filippini and Morones have moved to dismiss all claims against them under rule 12(b)(6). See Doc No. 13-1. In their ini..
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ORDER GRANTING LEAVE TO FILE SURREPLY TO DEFENDANTS FILIPPINI AND MORONES' MOTION TO DISMISS UNDER RULE 12(B)(6)
(Doc. No.'s 13, 20)
ANTHONY W. ISHII, District Judge.
Plaintiff has filed two claims under 28 U.S.C. § 1983 against Defendants Filippini, Morones and Miller, claiming Defendants violated her First and Fourteenth Amendment rights. See Doc. No. 1. Defendants Filippini and Morones have moved to dismiss all claims against them under rule 12(b)(6). See Doc No. 13-1. In their initial motion, Defendants raise issues regarding Plaintiff's complaint that primarily concern the failure to identify a constitutionally protected activity. See Id. Plaintiff responded to these allegations, to which Defendants filed a reply. See Doc. No.'s 17, 20. However, in the reply brief, Defendants raise an additional issue of whether Plaintiff has properly stated a claim against Morones under Monell v. Department of Social Serv., 436 U.S. 658 (1978). See Doc. No. 20, at pp. 5-6.
The general rule is that appellants cannot raise a new issue for the first time in their reply briefs. Thompson v. C. I. R., 631 F.2d 642, 649 (9th Cir. 1980); Pena v. Taylor Farms Pac., Inc., 305 F.R.D. 197, 206 (E.D. Cal. 2015) ("It is generally improper for a moving party to introduce new facts or different legal arguments in a reply brief."). However, given the importance of the issue, and given that Plaintiff has not had a chance to respond, the Court will exercise its discretion and grant Plaintiff additional time to file a surreply to specifically address this Monell issue. Brady v. Grendene USA, Inc., 2015 WL 6828400, at *3 (S.D. Cal. Nov. 6, 2015) ("A decision to grant or deny leave to file a surreply is generally committed to the "sound discretion" of the court"); Ctr. for Envtl. Sci., Accuracy & Reliabilit v. Cowin, 2015 WL 5430350, at *3 (E.D. Cal. Sept. 14, 2015) ("The Court grants Plaintiff's request to file a surreply on the basis that Defendant only raised the issues of the scope of the notice letter and its addressees in its Reply.").
ORDER
Accordingly, IT IS HEREBY ORDERED that Plaintiff shall file, by April 2, 2018, a surreply to respond to the specific issue first raised in Defendants' reply concerning lack of supervisory liability against Defendant Morones. See Doc. No. 20, Section B3.
IT IS SO ORDERED.
