United States District Court, D. Nevada
before the court is plaintiffs Joseph Todd Dunlap and Mona
Dunlap's (collectively “the Dunlaps”) motion
to remand. (ECF No. 9). Defendants Track Marine Group;
Tracker Marine LLC; and Tracker Marine Retail, LLC
(collectively “Tracker”) filed a response (ECF
No. 12), to which the Dunlaps replied (ECF No. 17).
before the court is Tracker's motion for leave to file
surreply. (ECF No. 25).
action arises from an alleged boating injury that took place
at Lake Mead in Clark County, Nevada. (ECF No. 1-2 at 11).
September 2016, Mr. Dunlap traveled from his home in Oregon
to Nevada to participate in the three-day WON Bass Pro/Am
fishing tournament (“Tournament”) held on
September 12-14, 2016, at Lake Mead. Id. Mr. Dunlap
and defendant Dominic Amato (“Amato”) competed
together in the Tournament with a boat that Amato owned and
operated. Id. Tracker and defendant White River
Marine Group (“White River”) designed,
manufactured, and distributed the boat. Id. at 12.
September 13, 2016, the winds at Lake Mead were approximately
thirty-five to forty miles per hour (“mph”), with
gusts up to fifty mph. Id. The high winds caused
four to six-foot waves. Id. At approximately 2:45
p.m., Mr. Dunlap and Amato prepared to return to the dock to
weigh their fish. Id. at 13. Amato became worried
that the two would not meet the Tournament deadline to weigh
their fish, so he began driving the boat at a high rate of
speed. Id. Mr. Dunlap allegedly asked and then
demanded Amato to slow down, but Amato refused. Id.
Dunlap alleges that because of the weather conditions, the
boat's high rate of speed, and the boat's allegedly
flawed safety handles, he was thrown out of his seat, into
the air, and back down onto his seat. Id. As a
result, Mr. Dunlap suffered an anterior compression fracture
located at L-2 vertebra of his spine. Id. at 15.
Dunlaps filed a complaint in state court alleging negligence,
gross negligence, negligence per se, strict products
liability, intentional infliction of emotional distress,
negligent infliction of emotional distress, and loss of
consortium. Id. at 16-21. On February 1, 2019,
Tracker removed the case to federal court based on both
diversity jurisdiction and federal question jurisdiction.
(ECF No. 1). Now, the Dunlaps move to remand and Tracker
moves for leave to file surreply. (ECF Nos. 9, 25-1).
Motion for leave to file surreply
Rule LR 7-2 provides that surreplies “are not permitted
without leave of court[.]” LR 7-2(b). “[M]otions
for leave to file a surreply are discouraged.”
Id. Courts in this district have held that the
“[f]iling of surreplies is highly disfavored, as it
typically constitutes a party's improper attempt to have
the last word on an issue . . .” Smith v. United
States, No. 2:13-cv-039-JAD-GWF, 2014 WL 1301357 at *5
(D. Nev. Mar. 28, 2014) (citing Avery v. Barsky, No.
3:12-cv-00652-MMD, 2013 WL 1663612 (D. Nev. Apr. 17, 2013)).
Only the most exceptional or extraordinary circumstances
warrant permitting a surreply to be filed. See Sims v.
Paramount Gold & Silver Corp., No. CV
10-356-PHX-MHM, 2010 WL 5364783 at *8 (D. Ariz. 2010)
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock West, Inc. v. Confederated Tribes
of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
notice of removability, a defendant has thirty days to remove
a case to federal court once he knows or should have known
that the case was removable. Durham v. Lockheed Martin
Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citing 28
U.S.C. § 1446(b)(2)). Defendants are not charged with
notice of removability “until ...