1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 ANA PEREZ, an individual, et al., on Case No.: 24cv333-LL-DDL behalf of herself and all others similarly 9 situated, ORDER DENYING PLAINTIFFS’ EX 10 PARTE APPLICATION TO FILE Plaintiffs, SUR-REPLY 11 v. 12 [ECF No. 51] TRAX RETAIL, INC., a Delaware

13 corporation and Does 1-50,

14 Defendants.

15

16 17 Before the Court is Plaintiffs’ Ex Parte Application for Leave to File Sur-Reply in 18 connection with Defendants’ Motion to Compel Arbitration, Dismiss Class Allegations, 19 and Stay PAGA Proceedings. ECF No. 51. The reason for Plaintiffs’ request is because 20 they will purportedly “suffer irreparable harm if they are not allowed to provide additional 21 briefing addressing the arguments presented in Defendants’ Reply regarding the operative 22 Independent Contractor Agreement and the Arbitration Agreement contained therein.” Id. 23 (citing Melmed Decl. ¶ 3). Plaintiffs state that they “timely filed their opposition [to 24 Defendants’ Motion to Compel] on February 21, 2025, but mistakenly attached the 25 outdated alleged Independent Contractor Agreement.” Id. Plaintiffs further state that 26 “Defendants filed their Reply on February 28, 2025, pointing out this error.” Id. Defendants 27 filed an Opposition to Plaintiffs’ Ex Parte Application on March 4, 2025 stating that 28 Plaintiffs’ Ex Parte Motion should be denied because: (1) Plaintiffs failed to comply with 1 Court rules for Ex Parte relief; (2) sur-replies are disfavored; (3) Plaintiffs cannot show 2 || excusable neglect; and (4) Plaintiffs will not suffer prejudice. ECF No. 52. For the reasons 3 || stated below, the Court DENIES Plaintiffs’ Ex Parte Motion. 4 Because neither the Federal Rules of Civil Procedure nor this District's Local Rules 5 || provide litigants a right to file a sur-reply, which leaves the question of whether to “permit 6 || the filing of a sur-reply within the discretion of the district court.” Whitewater W. Indus., 7 v. Pac. Surf Designs, Inc.,

, at *1 (S.D. Cal. June 26, 2019). 8 || Allowing the filing of a sur-reply is within the discretion of the district court, “but only 9 || where a valid reason for such additional briefing exists.” Nat'l Cas. Co. v. Nat’l Strength 10 Conditioning Ass’n,

, at *1 (S.D. Cal. June 4, 2020) (quoting 11 || Whitewater W. Indus.,

, at *1). 12 Here, the Court agrees with Defendant that the Reply does not raise any new facts 13 arguments, which would be one valid reason to allow a movant’s request for a surreply. 14 || See United States v. Venture One Mortg. Corp.,

, at *2 (S.D. Cal. Feb. 15 2015). Additionally, although Plaintiffs seek to supplement their briefing to address 16 specific provisions of the operative Arbitration Agreement, the Court finds that Plaintiffs 17 ||have already clarified the record to state that it is their position that even the applicable 18 || Arbitration Agreement “remains substantively and procedurally unconscionable.” ECF No. 19 at 5. Plaintiffs state that “Defendants’ Independent Contractor Agreement is Invalid, 20 || Regardless of the Version, Rendering the Arbitration Agreement Therein Unenforceable 21 Inseverable.” Jd. at 4 4. At this time, the Court finds it unnecessary to allow Plaintiffs 22 file a Sur-Reply. To the extent the Court determines that it needs additional briefing 23 || from Plaintiffs on this issue upon further review of the Motion to Compel Arbitration, the 24 || Court will order additional briefing at that time. 25 || IT ISSO ORDERED. NO 26 Dated: March 11, 2025 Ce | 27 Honorable Linda Lopez 38 United States District Judge