Opinion
Case No. 03-4126-SAC
November 17, 2003
MEMORANDUM AND ORDER
This case comes before the court on a motion to dismiss the United States Department of Housing and Urban Development ("HUD") as a party defendant. Because plaintiff failed to file any response to HUD's motion to dismiss, the court previously ordered plaintiff to "show good cause, in writing to this court, on or before November 7, 2003, why the defendant's . . . motion to dismiss (Dk. 12) should not be granted as uncontested pursuant to D. Kan. Rule 7.4." (Dk. 14). Plaintiff has failed to file any response to the court's show cause order.
D. Kan Rule 7.4 states:
If a respondent fails to file a response within the time required by Rule 6.1(e), the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice.
Nonetheless, in an abundance of caution, this court attempted to give defendant further notice via its show cause order.
The court is aware that its show cause order was returned as undeliverable, stating that plaintiff had been released from imprisonment, and that the mail was not forwarded. (Dk. 15). Nonetheless, it is plaintiff's duty to inform this court in a timely manner of his change of address.
The court, having reviewed HUD's motion to dismiss it from the case, finds that the motion should be granted. Because HUD has not been shown to have waived its sovereign immunity, it is not a proper party to this case, and the sole purported basis for this court's jurisdiction no longer exists. See Dk. 1, Notice of Removal, p. 2, ¶ 5; 28 U.S.C. § 1346. Accordingly, the case shall be remanded to the state court.
IT IS THEREFORE ORDERED that HUD's motion to dismiss it as a party defendant (Dk. 12) is granted, and this case is remanded to the state court.