Case 2:17-cv-00218-RSM Document 125 Filed 03/07/18 Page 1 of 4 The Hon. Ricardo S. Martinez 1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 12 13 14 15 16 Case No. 2:17-cv-00218-RSM-JPD DANIEL RAMIREZ MEDINA, Plaintiff, v. DEFENDANTS’ NOTICE AND SURREPLY U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. ORAL ARGUMENT REQUESTED 17 18 19 Pursuant to Local Rule 7(g)(1), Defendants hereby provide Notice1 of Defendants’ 20 Surreply Brief with respect to Plaintiff’s Reply in Support of Motion For Preliminary Injunction. 21 Dkt. No. 124 (“Reply in Support”). SURREPLY 22 23 Pursuant to Local Civil Rule 7(g)(2), Defendants submit this Surreply requesting that the 24 Court strike the improper argument in Plaintiff’s Reply in Support. Additionally, Defendants 25 request that the Court strike Plaintiff’s Amended Proposed Order, Dkt. No. 124-2, filed at the 26 27 28 1 Local Rule 7(g)(1) requires that notice be given “as soon after receiving the reply brief as practicable.” Defendants’ notice is given at this time, in conjunction with the filing of the Surreply, because client and Department resources have been devoted to implementing the recent injunction in Inland EmpireImmigrant Youth Collective v. Nielsen, (C.D. Cal. Feb. 26, 2018), and authorization for the Surreply was only obtained today. Notice and Surreply Case No. 2:17-cv-00218-RSM-JPD 1 U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 305-4193 Case 2:17-cv-00218-RSM Document 125 Filed 03/07/18 Page 2 of 4 1 time of the Reply in Support. See Reply in Support at 11 n.11. The “additional” relief sought is 2 problematic for two reasons: (1) the relief and accompanying argument is introduced for the first 3 time in the Reply, and not in the Motion for Preliminary Injunction; and (2) the relief is 4 additional to what was requested in the complaint. 5 First, a court “need not consider arguments raised for the first time in a reply brief.” 6 Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007); Nat'l Prod., Inc. v. Aqua Box Prod., LLC, 7 No. C12-0605-RSM, 2013 WL 12106902, at *1 (W.D. Wash. Apr. 1, 2013) (Martinez, J.) (citing 8 Zamani). In Plaintiff’s Motion for Preliminary Injunction, Dkt. No. 122, (“Motion”), he argues 9 extensively that Defendants’ consideration of evidence of his gang involvement is probative of 10 whether Defendants’ decision was arbitrary and capricious. See Motion at 11-15. But Part E of 11 Plaintiff’s Reply argues for the first time that Plaintiff’s DACA be evaluated “without regard to 12 the unsupported allegation of gang affiliation . . . .” See Reply in Support at 10. Plaintiff 13 concedes in footnote 11 that this relief is “additional” to what was previously sought. See Reply 14 in Support at 11 n.11. 15 Second, Plaintiff may not request preliminary relief that is beyond what it requested in 16 the complaint. See Gray v. Sorrels, No. CV 16-145-RAW-SPS, 2017 WL 167912, at *2 (E.D. 17 Okla. Jan. 17, 2017) (“When the movant seeks intermediate relief beyond the claims in the 18 complaint, the court is powerless to enter a preliminary injunction.”) (citing Terry v. Jones, 2007 19 WL 962916 (W. D. Okla. Mar. 30, 2007) (unpublished opinion); Phelps v. Phillips, No. 14-CV- 20 00891-JPG-SCW, 2015 WL 675407, at *4 (S.D. Ill. Feb. 17, 2015) (finding that absent 21 amendment, “any equitable relief the Court could grant would be outside the scope of the 22 Complaint, and therefore, not the proper subject for an injunction”). 23 Plaintiff may not amend his complaint by way of a reply brief in support of a motion for 24 preliminary injunction, much less by way of a footnote on the final page of the reply. Because 25 the complaint makes no claim and seeks no relief with regard consideration of gang involvement 26 in the ultimate determination of his DACA, those portions of the Reply in Support that add this 27 additional relief are outside the scope of these proceedings. Both the argument and the Amended 28 Proposed Order should be stricken. Notice and Surreply Case No. 2:17-cv-00218-RSM-JPD 2 U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 305-4193 Case 2:17-cv-00218-RSM Document 125 Filed 03/07/18 Page 3 of 4 1 2 3 DATED: March 7, 2018 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General 10 /s/ Jeffrey S. Robins JEFFREY S. ROBINS Assistant Director U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 616-1246 Fax: (202) 305-7000 Email: jeffrey.robins@usdoj.gov 11 Attorneys for Defendants 4 5 6 WILLIAM C. PEACHEY Director 7 8 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice and Surreply Case No. 2:17-cv-00218-RSM-JPD 3 U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 305-4193 Case 2:17-cv-00218-RSM Document 125 Filed 03/07/18 Page 4 of 4 CERTIFICATE OF SERVICE 1 2 I HEREBY CERTIFY that on March 7, 2018, I electronically filed the foregoing 3 document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document 4 should automatically be served this day on all counsel of record via transmission of Notices of 5 6 Electronic Filing generated by CM/ECF. /s/ Jeffrey S. Robins Jeffrey S. Robins Assistant Director U.S. Department of Justice 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice and Surreply Case No. 2:17-cv-00218-RSM-JPD 4 U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 305-4193