Brinker v. Axos Bank
3:22-cv-00386
S.D. Cal.
May 27, 2025
Check Treatment
Docket

JENNIFER BREAR BRINKER v. AXOS BANK, et al.

Case No. 22-cv-0386-MMA (DDL)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

May 27, 2025

PageID.14397

JENNIFER BREAR BRINKER, Plaintiff, v. AXOS BANK, et al., Defendants.

AXOS BANK, et al., Counter-Claimants, v. JENNIFER BREAR BRINKER, Counter-Defendant.

ORDER DENYING PLAINTIFF‘S EX PARTE MOTION FOR LEAVE TO FILE SUR-REPLY

[Doc. No. 248]

On March 14, 2025, Defendant filed its motion for summary judgment. Doc. No. 201. Plaintiff subsequently filed her opposition, to which Defendant filed a reply. Doc. Nos. 234, 239. Plaintiff now requests permission to file a sur-reply. See Doc. No. 248. Plaintiff contends that Defendant improperly raised two new arguments for the first time in its reply brief: (1) that , establishes that an employer has absolute immunity to terminate a whistleblower so long as the termination is part of a layoff; and (2) that case law analyzing “pretext” under other anti-discrimination statutes is inapplicable to retaliation claims brought under SOX, as Plaintiff does not need to show pretext for a SOX claim. Id. Plaintiff also claims that Defendant has misrepresented the law. Id. Defendant opposes the motion. See Doc. No. 253.

The Local Rules do not authorize the filing of a sur-reply. See generally CivLR 7.1. That said, district courts have the discretion to either permit or preclude the filing of a sur-reply upon request. See . Such discretion “should be exercised in favor of allowing a sur-reply only where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” .

At the outset, the Court notes that Plaintiff neither attached the proposed sur-reply to the motion nor indicated when it would be filed if leave were granted. Moreover, the motion was filed well after the close of briefing, almost a week and a half after Defendant filed its reply brief. Plaintiff has not provided any explanation for the delay nor any indication of diligence, especially since Plaintiff never renewed her motions to file under seal.

Looking at Defendant‘s summary judgment motion and reply brief, the Court finds that Defendant did not raise new arguments that would warrant granting Plaintiff leave to file a sur-reply. Regarding Plaintiff‘s first point, Defendant‘s actual position in its summary judgment motion is that part of the same-action defense under the AIR-21 burden-shifting framework inquires as to whether the employer would have taken the same adverse action absent the protected activity. See Doc. No. 201-1 at 38. Plaintiff seemed to challenge this argument in her opposition. See Doc. No. 234 at 31-38 (“Axos cannot establish, by clear and convincing evidence, that Ms. Brinker would have suffered the same unfavorable action in the absence of her protected activities.“). Defendant appears to address this issue in greater depth in response to Plaintiff‘s opposition. See Doc. No. 239 at 18–19. While the reply appears to expand on this defense by referencing in greater detail and responding to Plaintiff‘s arguments regarding retaliatory intent and pretext, that additional discussion does not constitute a new legal theory.

Regarding Plaintiff‘s second point, Defendant did not raise the pretext issue for the first time in its reply. Defendant made clear in its summary judgment motion that the relevant causation and burden-shifting standard arises under AIR-21 and argued that the plaintiff must show that the protected activity was a contributing factor. Doc. No. 201-1 at 38. Defendant maintained that an employer may avoid liability if it proves, by clear and convincing evidence, that it would have taken the same action absent the protected conduct. Id. Plaintiff‘s opposition, in contrast, relied on arguing pretext to rebut the same-action defense. See Doc. No. 234 at 31-38. Again, Defendant seems to address the pretext issue in more detail in its reply because of Plaintiff‘s arguments raised in her opposition. Doc. No. 239 at 17–19.

Ninth Circuit courts have made it clear that reply briefs may address points raised in opposition. See (“[M]ultiple courts in the Ninth Circuit have held that arguments submitted in a reply are not ‘new’ when they directly rebut issues raised in the non-movant‘s opposition to a motion.“); (“Although courts generally do not review issues raised for the first time in a reply brief, they may consider them if the new issue argued is offered in response to an argument raised in the opposition brief.“). Accordingly, the Court finds that the reply brief does not raise any new arguments.

Finally, Plaintiff‘s disagreement with Defendant‘s case law interpretation does not, without more, entitle her to a sur-reply. As courts have noted, “an alleged mischaracterization of the law alone cannot justify supplemental briefing, or every party would be entitled to the last word.” See, e.g., .

Accordingly, for these reasons, the Court DENIES Plaintiff‘s motion for leave to file a sur-reply.

IT IS SO ORDERED.

Dated: May 27, 2025

HON. MICHAEL M. ANELLO

United States District Judge

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