United States District Court, D. Colorado
GEORGINA SANTICH, JANEL ANDERSON, JESSICA SAULTERS ARCHULETTA, ADRIANNE AXELSON, EMILY BACHELDER, ALENA BAILEY, RACHEL BERRY, NICOLE BUJOK, BRANDI CAMPBELL, TALITA CATTO, MELISSA CHAVEZ, ARIEL CLINE, MEGAN FITZGERALD, AMANDA GABRIEL, AMY GLINES, JOHANNA GRISSOM, AMANDA LIVINGSTON, ARIELLE MANSFIELD, CHADA MANTOOTH, KARLA MARTINEZ, CHRISTINA MASSARO, ALEXIS NAGLE, LAPORTIA OAKLEY, GALE RAFFAELE, AMRICA TERRELL, PENNY WATKINS, CASANDRA WINDECKER, MELANIE TRACY, PORSCHA GREEN, AMANDA SHAFER, ASHLEY WOZNEAK, REBECCA RAIL, ANDREA ABBOTT, and KIMBERY HALE, all individually and on behalf of all others similarly situated, Plaintiffs,
VCG HOLDING CORP., LOWRIE MANAGEMENT, LLLP, TROY LOWRIE, MICHAEL OCELLO, DENVER RESTAURANT CONCEPTS LP d/b/a PTs Showclub, KENKEV II, INC. d/b/a PTs Showclub Portland, INDY RESTAURANT CONCEPTS, INC. d/b/a PTs Showclub Indy, GLENARM RESTAURANT, LLC d/b/a Diamond Cabaret, GLENDALE RESTAURANT CONCEPTS, LP d/b/a The Penthouse Club, STOUT RESTAURANT CONCEPTS, INC. d/b/a La Boheme, and VCG RESTAURANTS DENVER, INC. d/b/a PT's All Nude, Defendants.
Michael E. Hegarty United States Magistrate Judge.
seek permission to file a surreply to Defendants' Reply
in Support of its Motion to Dismiss and Compel Arbitration.
ECF No. 132. Additionally, Plaintiffs argue they need
additional discovery to properly respond to Defendants'
reply. Because Defendants' reply makes arguments and
presents evidence that directly rebuts the arguments
Plaintiffs assert in their response, the Court denies
adult dancers-initiated this collective action on March 10,
2017. Compl., ECF No. 1. In an Amended Complaint, Plaintiffs
assert that Defendants improperly treated them as independent
contractors in violation of the Fair Labor Standards Act and
various state wage acts. Am. Compl. ¶¶ 125-94, ECF
No. 65. Defendants responded to the Amended Complaint by
filing a Motion to Dismiss and Compel Arbitration, ECF No.
74. According to Defendants, each Plaintiff signed binding
arbitration agreements containing collective action waivers.
Id. at 2.
2, 2017, Plaintiffs filed a Motion to Defer Consideration on
Defendants' Motion to Compel, ECF No. 46. Plaintiffs
asserted they needed additional discovery before being able
to respond to Defendants' motion. Id. at 8. At a
Discovery Conference on May 4, 2017, the Court granted in
part and denied in part Plaintiffs' motion. Courtroom
Minutes, ECF No. 53. Specifically, the Court ordered that
Plaintiffs must file a response to Defendants' motion to
compel arbitration without the requested discovery. However,
the Court permitted Plaintiffs to file a surreply if they
learned relevant information from Defendants' discovery
filed their response on June 19, 2017. ECF No. 105.
Plaintiffs assert that the Court, not an arbitrator, should
determine whether this case is arbitrable. Id. at
7-8. Additionally, Plaintiffs contend the agreements between
the parties are unenforceable due to procedural and
substantive unconscionability. Id. at 8-19.
Plaintiffs submitted affidavits in support of their
procedural unconscionability argument. Id. at 9-14.
These affidavits allege, inter alia, managers rushed
Plaintiffs through the agreements, Defendants presented the
agreements as “take it or leave it, ” and
Plaintiffs were forced to sign the agreements after they had
been drinking and while they were working. Id. at
9-11. Plaintiffs contend the agreements are substantively
unconscionably, because they require Plaintiffs to split fees
and costs with Defendants. Id. at 14-19. Plaintiffs
also assert the arbitration clause's class action waiver
is illegal under the NLRA and FLSA and that the non-signatory
Defendants cannot enforce the arbitration provision.
Id. at 4-6, 24-28.
filed a reply brief on July 10, 2017. ECF No. 120. Defendants
argue that the arbitrator must decide whether this case is
arbitrable, because Plaintiffs' challenges relate to the
agreements as a whole. Id. at 2-4. Additionally,
Defendants rebut Plaintiffs' argument that the agreements
are unconscionable by attaching affidavits of current and
former employees. Id. at 12-18.
21, 2017, Plaintiffs filed the present Motion for Leave to
File Surreply. ECF No. 132. According to Plaintiffs, the
Court should permit them to submit a surreply, because they
have not previously seen the affidavits or videos Defendants
attached to the reply brief. Id. at 4. Additionally,
Plaintiffs argue they need additional discovery before they
can file a surreply. Id. at 4-6. Specifically, they
request depositions of a sample of Defendants' declarants
and video recordings for every Plaintiff who has signed a
contract within the last three years. Id. Plaintiffs
also seek all contracts that show the dancers had an ability
to negotiate terms. Id. at 5. Defendants respond
that the evidence attached to their reply rebuts arguments
Plaintiffs made in their response. Resp. to Mot. for Surreply
2-3, ECF No. 133.
a moving party advances in a reply new reasons and evidence
in support of its motion, ” courts can either grant the
nonmoving party an opportunity to respond or decline to rely
on the new material when deciding the motion. Beaird v.
Seagate Tech., Inc., 145 F.3d 1159, 1164-65 (10th Cir.
1998). However, a surreply is improper when arguments made in
a reply brief respond directly to arguments the opposing
party asserted in its response brief. Altamirano v. Chem.
Safety & Hazard Investigation Bd., 41 F.Supp.3d 982,
993-94 (D. Colo. 2014).
the Court denies Plaintiffs' request for a surreply,
because Defendants' arguments and evidence respond
directly to the arguments Plaintiffs make in their response.
First, the Court notes that Plaintiffs do not seek a surreply
to incorporate information learned through their recent
discovery requests. Therefore, although the Court
contemplated a surreply during the May 4, 2017 Discovery
Conference, Plaintiffs do not seek a surreply for the reasons
discussed at the hearing.
each of Defendants' argument sections in their reply
brief specifically rebuts arguments Plaintiffs made in their
response. Defendants' contention that the arbitrator must
decide arbitrability was first addressed by Plaintiffs on
pages seven and eight of the response. Defendants'
assertion that most Plaintiffs have not challenged the making
of the agreements responds to the affidavits Plaintiffs
attached to their response. Defendants' contention that
the arbitration clause is not unconscionable rebuts
Plaintiffs' argument that it is. Similarly, Plaintiffs
first discussed who can enforce the arbitration clause and
the illegality of the class action waiver.
that Defendants submitted new evidence to rebut
Plaintiffs' affidavits does not entitle Plaintiffs to a
surreply. “[W]here the reply affidavit merely responds
to matters placed in issue by the opposition brief and does
not spring upon the opposing party new reasons for [granting
the motion], reply papers-both briefs and affidavits-may
properly address those issues.” Altamirano, 41
F.Supp.3d at 993 (quoting Beck v. Univ. of Wis. Bd. of
Regents, 75 F.3d 1130, 1134 n.1 (7th Cir. 1996)).
Indeed, permitting a surreply to respond to rebuttal evidence
would create endless briefing where each party would get
another opportunity to respond to the opposing party's
recently submitted evidence.
cite Doebele v. Sprint/United Management Co., 342
F.3d 1117 (10th Cir. 2003) to support their argument. Mot.
for Surreply 4. There, the Tenth Circuit recognized that a
party opposing a motion has the right to respond to new
materials attached only to a reply brief. Doebele,
342 F.3d at 1139 n.3. However, the new material in that case
supported the defendant's pretext argument, which the
defendant made in its motion. Id. Here, the
affidavits do not support arguments Defendants made in their
motion; instead, they rebut arguments Plaintiffs made in
their response brief. For example, Defendants do not argue in
their motion that the arbitration clause is not
unconscionable. Plaintiffs raise this argument for the first
time in their response brief. Accordingly, the Tenth
Circuit's concern that an opposing party would not have
an opportunity ...