Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hayes v. Wong

United States District Court, N.D. Mississippi, Greenville Division

September 22, 2017

MICHAEL HAYES PLAINTIFF
v.
RAYMOND WONG; STEVEN HAYNE, M.D.; and STARKS HATHCOCK DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         Before 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.

         I

         Relevant Procedural History

         On or 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.[1] 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.

         On 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;[2] and a “Motion to Dismiss Defendants' Motion on Behalf for/of Plaintiff, ” which is Hayes' response to the removing defendants' motion to dismiss.[3] Doc. #9.

         On 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.

         On or 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.

         On July 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.

         On or about September 8, 2017, Hayes filed objections to the Report and Recommendation.[4] Doc. #28. On September 21, 2017, Judge Virden denied the removing defendants' motion to strike. Doc. #30.

         II

         Motion to Remand

         Hayes' 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, ”[5] the Court will first address Hayes' motion to remand.

         A. Removing Defendants' Motion to Strike

         The 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. 1991).

         Local 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.