Kristoff v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kim C Kristoff,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-24-03395-PHX-DWL
ORDER
On February 6, 2026, Magistrate Judge Boyle issued a Report and Recommendation
(“R&R”) recommending that the Petition for Writ of Habeas Corpus be denied and
dismissed with prejudice and that a pending motion to stay be denied. (Doc. 20.)
On March 20, 2026, following a deadline extension (Doc. 22), Petitioner filed an
objection to the R&R. (Doc. 23.)
On April 29, 2026, Petitioner filed a notice of supplemental authority, stating that
“[o]n April 20, 2026, the United States Supreme Court denied the petition for writ of
certiorari in Thornell v. Bieganski, No. 25-690,” such that “[t]he Ninth Circuit’s decision
in Bieganski v. Shinn, 149 F.4th 1055 (9th Cir. 2025), is now final and binding precedent
in this Circuit.” (Doc. 26.)
On May 4, 2026, following a deadline extension (Doc. 25), Respondents filed a
response to the objection. (Doc. 27.)1
On May 8, 2026, Petitioner filed a motion for leave to file a reply brief, asserting
1 Both the objection and the response were oversized, although leave to file an
oversized brief was sought only by Respondents. (Doc. 29.)
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that “Respondents’ Response raises at least four categories of argument that did not appear
in the R&R and to which Petitioner had no opportunity to respond in the Objections” and
identifying the four arguments. (Doc. 30.) The proposed reply was attached as Exhibit A
to the motion for leave to file. (Doc. 30-1.)
On May 11, 2026, Respondents filed a motion to strike Petitioner’s motion for leave
to file a reply. (Doc. 31.)
I. Motion To Strike
“Unless made at trial, a motion to strike may be filed only if it is authorized by
statute or rule, such as Federal Rules of Civil Procedure 12(f), 26(g)(2) or 37(b)(2)(A)(iii),
or if it seeks to strike any part of a filing or submission on the ground that it is prohibited
(or not authorized) by a statute, rule, or court order.” LRCiv 7.2(m). Respondents’ motion
to strike notes that the rules do not authorize a reply in support of objections to an R&R.
But Petitioner did not file a reply—Petitioner filed a motion acknowledging that the rules
do not authorize a reply and seeking relief from the Court in the form of leave to file what
would, without leave, be an unauthorized reply. The Court is aware of no rule prohibiting
Petitioner from requesting leave to file an otherwise unauthorized reply. See, e.g., Warren
v. City of Chico, 2024 WL 4803960, *1 (E.D. Cal. 2024) (“[N]othing in the Federal Rules
of Civil Procedure prevents the court from granting a party leave to file [an otherwise
unauthorized brief].”).
Thus, Respondents’ motion to strike is denied, and the arguments therein are
construed as Respondents’ response to Petitioner’s motion for leave.
II. Motion For Leave To File Reply
Because a reply in support of an objection to an R&R is not authorized by the rules,
Petitioner’s proposed reply “is functionally a sur-reply.” Tounget v. Valley-Wide
Recreation & Park Dist., 2020 WL 8410456, *2 (C.D. Cal. 2020). “A decision to grant or
deny leave to file a sur-reply is generally committed to the sound discretion of the court.”
Id. Courts sometimes grant leave to file a sur-reply “in order to consider evidence or
arguments that give a more complete picture of the issues in need of resolution.” Id.; cf.
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Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (district court erred in considering
evidence raised in reply brief without affording opponent an opportunity to respond).
Specifically, leave to file a sur-reply is often granted when an additional briefing
opportunity is needed to address new arguments set forth for the first time in what would
otherwise be the final brief in the normal briefing schedule. See, e.g., Swartzmiller Assocs.
Inc. v. Das Holz Haus LLC, 2025 WL 317598, at *1 n.1 (D. Ariz. 2025) (“Because
[Plaintiff] raised additional arguments in its reply . . . , the Court concludes, in its
discretion, that Defendants should be allowed to file their proposed sur-reply, which
provides additional information bearing on that issue.”); Fitzhugh v. Miller, 2020 WL
1640495, 9 (D. Ariz. 2020) (“Although the Court may in its discretion allow the filing of
a surreply, this discretion should be exercised in favor of allowing a surreply only where a
valid reason for such additional briefing exists, such as where the movant raises new
arguments in its reply brief.”); Paradise Ent. Ltd. v. Empire Tech. Grp. Ltd., 2025 WL
3004664, *1 (D. Nev. 2025) (granting leave to file sur-reply where moving party raised
new matters for the first time in a reply brief).
Petitioner identifies four new arguments Respondents advanced for the first time in
the response to the objection. (Doc. 30 at 3-4.) Respondents do not deny that they
advanced four new arguments. Respondents’ main rejoinder is that affording Petitioner “a
fair opportunity to reply to the arguments Respondents raised” could “permit briefing to
go on forever” because “Respondents could just as easily respond that they should also be
given permission to file a Sur-Reply in light of the new arguments he raises in his Reply.”
(Doc. 31 at 3.) The Court is not overly concerned about this slippery slope contention, as
it has no plans to allow “an endless volley of briefs” and is capable of determining when
allowing another brief is “appropriate.” Warren, 2024 WL 4803960 at *2. At any rate,
Respondents have not requested leave to file a sur-reply.
The Court, in its discretion, will permit a reply from Petitioner. The objection to
the R&R will be resolved in a future order, in due course.
Accordingly,
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IT IS ORDERED that:
1. The referral to the magistrate judge as to Respondents’ motion to strike (Doc.
31) and Petitioner’s motion for leave to file a reply (Doc. 30) is withdrawn.
2. Respondents’ motion to strike (Doc. 31) is denied.
3. Petitioner’s motion for leave to file a reply (Doc. 30) is granted. The Clerk
of Court shall file the reply (Doc. 30-1) as a standalone docket entry.
Dated this 12th day of May, 2026.
Case 2:24-cv-03395-DWL Document 32 Filed 05/12/26 Page 4 of 4