Howell v. Leprino Foods Company

5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA ANDREW HOWELL, on behalf of CASE NO. 1:18-cv-01404-AWI-BAM himself and on behalf of all other similarly situated individuals ORDER ON DEFENDANTS’ REQUEST 10 Plaintiff FOR LEAVE TO FILE SUR-REPLY IN OPPOSITION TO MOTION FOR 11 v. CLASS CERTIFICATION, OR ALTERNATIVELY, REQUEST FOR LEPRINO FOODS COMPANY, a ORAL ARGUMENT Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; (Doc. No. 98) and DOES 1–50, inclusive, 15 Defendants 17 Before the Court is Defendants Leprino Foods Company and Leprino Foods Dairy Products Company’s (collectively, “Leprino”) request for leave to file a sur-reply or present oral argument in support of their Opposition to Plaintiff Andrew Howell’s (“Howell”) Motion for Class Certification.

20 The Court generally views motions for leave to file sur-replies with disfavor. Camposeco v. Boudreaux, 2021 U.S. Dist. LEXIS 195447, *12 (E.D. Cal. Oct. 7, 2021); Willard v. Neibert, 2016 22 U.S. Dist. LEXIS 166201, *4 (E.D. Cal. Dec. 1, 2016). Neither the Local Rules nor the Federal Rules provide the right to file a sur-reply. Pontius v. IRS, 2014 U.S. Dist. LEXIS 60109, *2 (E.D.

24 Cal. Apr. 4, 2014). However, District courts have the discretion to either permit or preclude a sur- reply. Willard, 2016 U.S. Dist. LEXIS at *4. This discretion should be exercised in favor of allowing a sur-reply “only where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. England, 2005 U.S. Dist. LEXIS 29357, *2 (E.D. Cal. Nov. 8, 2005). een SO SEI IID 1 Leprino claims it is entitled to file a sur-reply because Howell’s Reply brief presents, for the 2 time, certain issues and evidence that ask the Court to strike or view with skepticism certain | declarations and testimony presented by Leprino. Howell claims Leprino’s request should be denied | because Howell’s Reply brief does not present any new arguments or evidence.

5 The Court has addressed a materially similar circumstance in Perez v. Leprino Foods Co., |2021 U.S. Dist. LEXIS 2165, *53 (E.D. Cal. Jan. 6, 2021). As in Perez, the Court will decline | Howell’s invitation to strike or otherwise disregard any of the challenged declarations and testimony | presented by Leprino.' See id. Accordingly, Leprino’s request to file a sur-reply will be denied.

10 ORDER | Accordingly, IT IS HEREBY ORDERED that Defendants’ request to file a sur-reply (Doc. No. 98) |is DENIED.

4 IT IS SO ORDERED.

15 |Dated: _ February 24, 2022 7 Zz : Z Cb Led -_-SENIOR DISTRICT JUDGE |! The Court recognizes that presenting new arguments and evidence in a Reply brief is improper. If Howell presented truly new arguments or evidence in his Reply brief, then the Court will not consider them. JG v. Douglas Cty. Sch. Dist., [552 F.3d 786, 805 (9th Cir. 2008) (district court did not abuse discretion in denying leave to file sur-reply where it did not consider new evidence in reply).