Free Response to Motion - District Court of Federal Claims - federal

Case 1:98-cv-00726-EJD

Document 164

Filed 05/12/2005

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS GRASS VALLEY TERRACE, A CALIFORNIA LIMITED PARTNERSHIP, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 98-726C, 98-726-2C through 98-726-14C and 04-1299C & 04-1317C (Consolidated) (Chief Judge Damich)

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE SUR-REPLY Plaintiffs asserts that they should be permitted to file a sur-reply in response to the reply brief that we filed in support of our pending motion to dismiss certain claims in this action, because "[p]laintiffs believe that defendant's reply presents certain issues beyond the scope of its original motion . . . ." Motion for Leave 1. To the extent that plaintiffs mean only that our reply is not a mere repetition of our moving brief, we agree. This fact is not, however, a reason for permitting a sur-reply. Any reply brief worth filing says something new. Yet, in responsive briefing, one side must eventually have the last word if the briefing is ever to end. That side is, ordinarily, the movant, not necessarily the last party to run out of arguments. The Court's rules provide, after all, for the routine filing of replies but not sur-replies. Plaintiffs do not assert that our reply raises new grounds for dismissal that were not raised in our motion to dismiss, and a reading of our moving brief and our reply demonstrates that no new grounds have been raised. Our reply does discuss certain discovery material that was not mentioned in our moving brief but that was cited and relied upon by plaintiffs in their response. By so doing, however, we did not raise new issues; we simply responded to plaintiffs' assertions. That is the purpose of a reply brief; it is not a reason to permit a sur-reply.

Case 1:98-cv-00726-EJD

Document 164

Filed 05/12/2005

Page 2 of 2

In the alternative to filing a sur-reply, plaintiffs request that the Court schedule oral argument on our motion to dismiss. The scheduling of oral argument is a matter entirely within the Court's discretion, and, as we stated in the May 5, 2005 status conference in this case, we neither request nor oppose the scheduling of oral argument. There is no basis, however, for the filing of a sur-reply. For the foregoing reasons, plaintiffs' motion for leave to file a sur-reply should be denied. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director Filed electronically OF COUNSEL: Kenneth S. Kessler Michael S. Dufault Commercial Litigation Branch Civil Division Department of Justice s/Shalom Brilliant SHALOM BRILLIANT Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Telephone: (202) 305-7561 Facsimile: (202) 305-7643 Attorneys for Defendant May 12, 2005

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