United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE
the Court are (1) the motion to dismiss of Starks Hathcock
and Steven Hayne, Doc.#7; (2) Michael Hayes' motion to
remand, Doc. #11; and (3) the Report and Recommendation of
United States Magistrate Judge Jane M. Virden, which
recommends that the motion to dismiss be granted, Doc. #23.
about June 16, 2016, Michael Hayes filed a 42 U.S.C. §
1983 complaint in the Circuit Court of Bolivar County,
Mississippi, against Raymond Wong, Steven Hayne, and Starks
Hathcock challenging the validity of his
conviction. Doc. #2; Doc. #8-1 at 1. On January 5,
2017, Hathcock, with Hayne's consent, removed the case to
this Court on the basis of federal question jurisdiction.
Doc. #1. In the notice of removal, Hathcock asserts that
Wong's consent is unnecessary because he was fraudulently
joined. Id. at 2.
January 9, 2017, Hathcock and Hayne (“removing
defendants”) filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). Doc. #6. On or
about February 1, 2017, Hayes filed “Plaintiff's
Response to Defendant's Notice of Removal, ” which
in substance is a motion to remand; and a “Motion to
Dismiss Defendants' Motion on Behalf for/of Plaintiff,
” which is Hayes' response to the removing
defendants' motion to dismiss. Doc. #9.
February 15, 2017, the removing defendants filed a reply in
support of their motion to dismiss. Doc. #10. One week later,
on February 22, 2017, the removing defendants filed a
response in opposition to the motion to remand. Doc. #15.
about March 31, 2017, Hayes filed “Plaintiff's
Response to Defendant's Reply Memorandum in Support of
the Defendants' Motion to Dismiss Complaint, ” Doc.
#17; and a “Motion to Bar Respondents Opposition Motion
to Complaint, ” Doc. #18, which is a reply in support
of his motion to remand. On April 20, 2017, Hayes filed a
“Motion Supplementing Response to Defendants'
Opposition Motion and Request to Dismiss Complaint, ”
which is a second reply in support of his motion to remand.
Doc. #20. On May 4, 2017, the removing defendants filed a
motion to strike the April 20 reply. Doc. #21.
18, 2017, United States Magistrate Judge Jane M. Virden
issued a Report and Recommendation recommending that the
removing defendants' motion to dismiss be granted and
that Hayes' claims be dismissed for failure to state a
claim. Doc. #23. Hayes acknowledged receipt on July 21, 2017,
Doc. #24; and, on or about August 3, 2017, requested an
extension to file his objections, Doc. #25. On August 8,
2017, Judge Virden granted Hayes twenty-one (21) days to file
objections. Doc. #26.
about September 8, 2017, Hayes filed objections to the Report
and Recommendation. Doc. #28. On September 21, 2017, Judge
Virden denied the removing defendants' motion to strike.
motion seeks remand on the grounds that the notice of removal
was untimely and is in violation of the rule of unanimity.
Because “[d]istrict courts have no power to overlook
procedural errors relating to the notice of removal,
” the Court will first address Hayes'
motion to remand.
Removing Defendants' Motion to Strike
removing defendants moved to strike Hayes' April 20,
2017, filing as an “unauthorized sur-reply.” Doc.
#21 at 2. While Judge Virden issued an order denying the
motion, this Court “possesses the inherent procedural
power to reconsider, rescind, or modify an interlocutory
order for cause seen by it to be sufficient.” S.
Snow Mfg. Co., Inc. v. SnoWizard Holdings, Inc., 921
F.Supp.2d 548, 564 (E.D. La. 2013). This power may be
exercised sua sponte. Fayetteville Inv'rs v.
Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir.
Rule 7 only authorizes the filing of a motion, a response,
and a reply. See L.U. Civ. R. 7(b). Because Hayes
did not seek the Court's permission to file another
reply, the Court concludes that the interest of enforcing the
Local Rules warrants rescinding Judge Virden's order
denying the motion ...