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Benjamin Bassi, Trustee of the Marsha A. Bassi Revocable v. Christopher John Krochina

May 3, 2012

BENJAMIN BASSI, TRUSTEE OF THE MARSHA A. BASSI REVOCABLE TRUST
v.
CHRISTOPHER JOHN KROCHINA



The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge

Opinion No. 2012 DNH 079

ORDER

Benjamin Bassi, Trustee of the Marsha A. Bassi Revocable Trust, brought a petition to quiet title in Belknap County Superior Court in September of 2011. After the non-diverse parties were dismissed from the action and the state court denied his request for a jury trial, defendant Christopher Krochina, proceeding pro se, removed the action to this court. Bassi moves to remand, and Krochina objects to the motion.

Bassi filed a reply, and Krochina filed a surreply. Bassi moves to strike the surreply on the grounds that it is untimely and extraordinary circumstances are lacking. Krochina objects.

I. Motion to Strike

Bassi contends that Krochina's notice of intent to file a

surreply and the surreply were not timely filed under the local rules. Bassi also contends that Krochina's surreply does not meet the required extraordinary circumstances. Krochina defends the timeliness and substance of his surreply.

A. Timeliness

Bassi filed a reply on March 21, 2012. Krochina provided oral notice of his intent to file a surreply on March 28, 2012, and his written notice was filed on March 30, 2012. Krochina filed the surreply, without first seeking leave to do so, on April 6, 2012.

A pro se party, such as Krochina, is required to comply with applicable procedural rules. Eagle Eye Corp. v. U.S. Dep't of Commerce, 20 F.3d 503, 506 (1st Cir. 1994); McGee v. Benjamin, 2012 WL 959377, at *11 n.12 (D. Mass. Mar. 20, 2012); Horstkotte v. Comm'r, N.H. Dep't of Corrs., 2009 WL 4907025, at *6 (D.N.H. Dec. 11, 2009). Under the local rules of this district, written or oral notice of an intent to file surreply must be provided to the court and opposing counsel within three days of service of the objection. LR 7.1(e)(1) & (3). The time is enlarged to six days under Federal Rule of Civil Procedure 6(a) & (d) to provide time for service of the reply. LR 6.1. Oral notice provided by Krochina on March 28 was one day late, and written notice filed on March 30 was three days late.

A motion for leave to file a surreply, with the proposed surreply attached, must be filed within fourteen days of service of the reply. LR 7.1(3). Krochina filed a surreply on April 6 without a separate motion for leave, although the surreply begins with a request that the court accept it. Even if the surreply were deemed to include a motion for leave to file, it was filed two days late.

Although the reply was filed on March 21 with a certification that a copy had been sent to Krochina by first class mail, Krochina represents that he did not receive Bassi's reply until March 27.*fn1 Krochina argues that because he was not served with the reply until March 27, his notice and surreply were timely. Krochina also argues that he satisfied the requirement of seeking leave to file a surreply by asking the court to accept the surreply without a separate motion. As presented, Krochina has not shown that he complied with the local rules pertaining to filing a surreply.

B. Substance

Bassi also argues that Krochina's surreply does not present extraordinary circumstances as required by LR 7.1(d)(3). In support of the surreply, Krochina asserts that Bassi's reply includes "several misstatements and/or distortions of the factual record" and that the surreply is necessary "to address and correct the plaintiff's misstatements." In addition, Krochina accuses Bassi of not being honest with the court and labels the motion to strike as "just another ...


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