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Lasko v. American Board of Surgery

United States District Court, District of Nevada

January 12, 2015

KEITH ALAN LASKO, Plaintiffs,
v.
AMERICAN BOARD OF SURGERY, et al., Defendants. Nos. 183, 184

ORDER

NANCY J. KOPPE United States Magistrate Judge

Pending before the Court is Defendant American Board of Internal Medicine’s (“ABIM) Motion to Strike Plaintiff’s Two Unauthorized Supplemental Responses and Motion for Sanctions. Docket Nos. 183 and 184.[1] Defendant asks the Court to strike the documents at Docket Nos. 178 and 182 as unauthorized supplemental responses, and to sanction Plaintiff for continuing to violate Court orders. The Court has considered Defendant’s motions and Plaintiff’s Response. Docket Nos. 183, 184, 185. No Reply was filed. See Docket. The Court finds this motion appropriately resolved without oral argument. Local Rule 78-2.

I. BACKGROUND

On October 20, 2014, Defendant filed a Motion to Dismiss Keith Alan Lasko’s Second Amended Complaint (“Motion to Dismiss”). Docket No. 168. On October 24, 2014, Plaintiff filed a response to Defendant’s motion and, on November 3, 2014, Defendant filed a reply to Plaintiff’s response. Docket Nos. 171, 177. Thereafter, on November 5, 2014, Plaintiff filed a second response to Defendant’s motion. Docket No. 178.[2] Further, on November 17, 2014, Plaintiff filed yet another response to Defendant’s motion. Docket No. 182.[3]

Defendant seeks to strike Plaintiff’s supplemental responses on the grounds that they are untimely and improper under the Federal Rules. Docket No. 183.

II. DISCUSSION

A. Striking of Filings

The docket entry for Defendant’s Motion to Dismiss clearly states: “Responses due by 11/6/2014.” Docket No. 168. Plaintiff complied with this deadline by filing his response on October 24, 2014. Docket No. 171. That docket entry clearly states: “Replies due by 11/3/2014.” Id. Defendant complied with this deadline by filing its reply on November 3, 2014. Docket No. 177. The deadlines set on the docket comply with the Court’s Local Rules regarding the timing for filing responses and replies to motions. LR 7-2. Therefore, if Plaintiff intended the filings at Docket Nos. 178 and 182 to be supplemental responses to Defendant’s motion, his responses were untimely.

Further, if Plaintiff intended his filings at Docket Nos. 178 and 182 to be surreplies to Defendant’s reply, they are procedurally improper. As the Court has explained to Plaintiff in more than one Order, because Defendant did not raise any new issues in its reply to the Motion to Dismiss, and because Plaintiff did not request or obtain leave of court, Plaintiff is not permitted to file a surreply.

[I]f Plaintiff intended for his second response to be a surreply, it is also improper. Local Rule 7–2(a)–(c) allows a motion, a response and a reply. No provision is made for the filing of a surreply. “A surreply may only be filed by leave of court, and only to address new matters raised in a reply to which a party would otherwise be unable to respond.Spartalian v. Citibank, N.A., 2013 WL 593350, at *2 (D. Nev. Feb. 13, 2013) (citing Kanvick v. City of Reno, 2008 WL 873085, at *n.1 (D.Nev. March 27, 2008)(emphasis in original)). Here, Plaintiff did not request leave to file a surreply nor are there new matters raised in the reply to which Plaintiff would otherwise be unable to respond. Accordingly, even if Plaintiff intended his second response to be a surreply, it is improper.

Docket No. 60, at 2; Docket No. 72, at 3. See also Docket No. 107, at 4.

Plaintiff’s surreplies, then, are procedurally improper. Accordingly, they shall be stricken.

B. Sanctions

Defendant asks the Court to impose sanctions for Plaintiff’s continued violation of the Court’s Orders and the ...


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