United States District Court, D. Arizona
S. WILLETT United States Magistrate Judge
Asia Lynn Sebert, who is represented by counsel, filed an
original Complaint and Amended Complaint in the Maricopa
County Superior Court (Doc. 1, Att. 3, 4). On February 6,
2016, Defendant Arizona Department of Corrections filed a
Notice of Removal (Doc. 1), paid the filing fee, and removed
the action to this Court. On February 12, 2016, Defendant
Arizona Department of Corrections filed an Unopposed Motion
to Extend Responsive Pleading Deadline (Doc. 4), which was
granted in an Order filed on February 16, 2016 (Doc. 5). On
February 19, 2016, Plaintiff filed a Second Amended Complaint
(Doc. 6). On February 22, 2016, Defendants Wexford Health
Sources, Inc. and Caron Grant-Ellis filed an Answer to the
First Amended Complaint (Doc. 7). On February 22, 2016,
Defendants Corizon Health Inc., Corizon Inc., Corizon LLC,
and Corizon Health of New Jersey LLC filed an Answer to the
First Amended Complaint (Doc. 10). The Arizona Department of
Corrections ("ADOC"), State of Arizona, and ADOC
Director Charles Ryan (collectively "State
Defendants") filed a Motion to Dismiss all claims (Doc.
13). Defendant Villavicencio filed a Motion to Dismiss and
Joinder with the State Defendants' Motion to Dismiss
(Doc. 14). Defendants Wexford Health Sources, Inc. and Caron
Grant-Ellis filed a Motion for Judgment on the Pleadings as
to Plaintiff's First Amended Complaint (Doc. 17).
has filed a Supplemental Response to State Defendants'
and Villavicencio's Motions to Dismiss, or in the
Alternative, Separate Motion for F.R.C.P. 56(d) Relief (Doc.
26). State Defendants filed a Motion to Strike (Doc. 28) the
Court has considered all non-dispositive, pending motions and
sets forth its ruling herein.
to Strike (Doc. 28)
Defendants move to strike Plaintiff's Supplemental
Response to State Defendants' and Villavicencio's
Motions to Dismiss (Doc. 26) pursuant to LRCiv 7.2(m) because
Plaintiff's Supplemental Response was not solicited by
the Court or authorized under LRCiv 7.2(c). Plaintiff's
Supplemental Response was filed after Defendants' Reply
briefs (Docs. 24, 25) and is deemed a sur-reply. The Court
has discretion to permit the filing of a sur-reply. In
determining whether to allow a sur-reply, a "district
court should consider whether the movant's reply in fact
raises arguments or issues for the first time, whether the
nonmovant's proposed surreply would be helpful to the
resolution of the pending motion, and whether the movant
would be unduly prejudiced were leave to be granted."
Doe v. Exxon Mobil Corporation, 69 F.Supp.3d 75, 85
(D.D.C. 2014) (citation and internal quotation marks
issue is raised in the State Defendants' Reply. The State
Defendants assert that "Because Plaintiff submitted
exhibits [with Plaintiff's Response to the Motion to
Dismiss], this Court may properly deem the motion as
converted into one for summary judgment." (Doc. 24 at
3). In the Ninth Circuit, "a motion to dismiss is not
automatically converted into a motion for summary judgment
whenever matters outside the pleading happen to be filed with
the court and not expressly rejected by the court."
North Star Int'l v. Arizona Corporation
Comm'n, 720 F.2d 578, 582 (9th Cir. 1983) (holding
that district court properly treated motion as motion to
dismiss, despite presence of affidavits, where there was no
indication of the court's reliance on outside materials
and the court expressly stated that it was dismissing for
failure to state a claim upon which relief could be granted);
Keams v. Temple Technical Institute, Inc. , 110 F.3d
44, 46 (9th Cir. 1997) ("12(b)(6) motion need not be
converted into a motion for summary judgment when matters
outside the pleading are introduced, provided that
‘nothing in the record suggest[s] reliance' on
those extraneous materials"). Rather, "a district
court must take some affirmative action to effectuate
conversion." Swedberg v. Marotzke, 339 F.3d
1139, 1142 (9th Cir. 2003).
the State Defendants' Reply raises the issue as to
whether the Court should convert the Motion to Dismiss to a
motion for summary judgment, it is appropriate to allow the
filing of a sur-reply. Moreover, the State Defendants have
replied to the Supplemental Response and fully articulated
their position in opposition to Plaintiffs Supplemental
Response. The Court does not find that permitting the
Supplemental Response would be unduly prejudicial to
Defendants. Therefore, the Motion to Strike will be denied.
reasons set forth herein, IT IS ORDERED denying Motion to
Strike (Doc. 28).
FURTHER ORDERED withdrawing the reference to the Magistrate
Judge on the following fully briefed dispositive motions:
State Defendants' Motion to Dismiss (Doc. 13); Defendant
Villavicencio's Motion to Dismiss and Joinder with the
State Defendants' Motion to Dismiss (Doc. 14); and
Defendants Wexford Health ...