APPLICATION TO STRIKE SUPPLEMENT112345678910111213141516171819202122232425262728
MEMORANDUM OF POINTS AND AUTHORITIESI. INTRODUCTION
On March 18, 2011, without leave of the Court, the government improperlyfiled what amounts to a sur-reply to Defendants’ Motion to Dismiss the FirstSuperseding Indictment.
Supplement to the Government’s Opposition to theDefendant’s Motion to Dismiss the First Superseding Indictment; Declaration of Clifton M. Johnson (Docket No. 296) (“Supplement and Declaration”);
Defendants’ Notice of Motion and Motion to Dismiss the First SupersedingIndictment (Docket No. 220) (“Def. Mot.”). The government’s Supplement andDeclaration fail to satisfy local and federal rules limiting the submission of sur-replies. They also proffer irrelevant arguments and authorities.For these reasons, defendants Lindsey Manufacturing Company, Keith E.Lindsey, and Steve K. Lee request that the Court strike the supplement anddeclaration or, in the alternative, order that the declarant on whose sworn statementthe sur-reply is based appear at the hearing on defendants’ motion to dismiss.
A. The Supplement and Its Accompanying Declaration is an ImproperSur-Reply
The government styles its filing as a “supplement.” In actuality, it is aninappropriate sur-reply brief filed without leave of court and in a manner thatdeprives defendants of the ability to analyze all responses. Local Civil Rule 7-10provides that “[a]bsent prior written order of the Court, the [party opposing amotion] shall not file a response to the reply.” L. R. Civ. 7-10.
L. Crim. R. 57-1(“When applicable directly or by analogy, the LocalRules of the Central District of California shall govern the conduct of criminalproceedings before the District Court, unless otherwise specified.”). Thegovernment attempts to deflect attention from Rule 7-10 by reminding the Courtthat “it noted” its plan to file this paper in its opposition to defendants’ motion, butits having so noted does not nullify Rule 7-10.
Supplement and Declaration at1-2.
Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 3 of 9 Page ID #:6565