Opinion
Case No. 04-1298-JTM, (consolidated with, Case No. 05-1046-JTM).
May 16, 2005
MEMORANDUM AND ORDER
Five motions are before the court in these consolidated cases. In Case No. 04-1298, plaintiff Ronald Murray has moved to remand the case to Edwards County, Kansas District Court (Dkt. No. 74) and filed a motion for preliminary injunction (Dkt. No. 88). Murray seeks to remand the case on the grounds that all defendants did not consent to the removal. The defendants have responded to the motion to remand (Dkt. No. 77); Murray has filed no reply. No party or person has filed any responsive pleading to the motion for an injunction. In Case No. 05-1046, plaintiff Murray seeks to remand that case to Edwards County, Kansas District Court (Dkt. No. 7). There is also a motion by defendant Bagby to dismiss the case (Dkt. No. 12), and a motion by Murray to stay ruling on the motion to dismiss pending further discovery (Dkt. No. 17).
The court will deny the motions to remand. With respect to Case No. 04-1298, Murray's motion is untimely. Even assuming any procedural defect existed due to the failure of defendant Greiner to contemporaneously join the removal, Murry waived any right to remand by failing to seek remand within the 30 days mandated by 28 U.S.C. § 1447(c). Here, the action was removed September 8, 2004. Greiner was served with process on November 19, 2004. Nevertheless, Murray did not seek remand until March 3, 2005. The request for remand is untimely and is denied.
Murray's motion to remand in the companion case is grounded on two arguments. First, he contends that the matter should be remanded due to the alleged defect created by the failure of defendant Bagby to contemporaneously join in the motion to remove. Second, he argues that the defendants waived any right to remove the case by their affirmative actions in the state proceedings. But while Bagby did not immediately join in the removal, she joined in the notice to remove on February 28, 2005, and thus any procedural defect was cured prior to the motion to remand. With respect to the second grounds for remand, Murray has failed to show any affirmative actions defendants took in the state proceedings, other than simply filing their answer. Such a limited response will not be deemed a waiver of the right of removal. Liebau v. Columbia Cas., 176 F.Supp. 1236 (D. Kan. 2001).
The court will also deny Murray's request for a preliminary injunction, which is directed at securing greater access to the law library at the state correctional institution where he is currently incarcerated. As noted in Murray's motion, he seeks relief against "[t]he Department of Corrections of Kansas." But Murray has not served the Kansas Department of Corrections with notice of his request for relief, and has supplied no authority that the court may grant such relief in this separate, independent action against various county officers. The court finds that such relief against an unserved, non-party is not appropriate. See Nicholson v. Murphy, No. 302-CV-1815, 2003 WL 22909876, (D. Conn. Sept. 19, 2003) (denying as improper inmate's request for preliminary injunctive relief seeking increase in his library access at one correctional facility in order to advance separate civil litigation arising from his earlier incarceration at a separate facility).
Finally, the court will deny Murray's request for stay, which simply repeats general statements of the law regarding the value of full discovery. Ordinarily, the preference is for the resolution of dispositive motions after full and complete discovery. Yet the mere invocation of the general preference for discovery is insufficient where a dispositive motion seeks relief based upon grounds which need not require additional or exhaustive discovery. Here, the defendant Bagby has raised by motion the narrow and discrete issue of how a city or its officer can be held liable for the alleged injuries sustained by Murray in a county jail, when Murray was not imprisoned under the authority of or held by any city officers. This is precisely the sort of issue which may be resolved prior to general, full discovery. Murray has not made any specific showing as to why additional time is needed to respond to Bagby's motion. Pasternak v. Lear Petroleum Exploration, 790 F.2d 828, 833 (10th Cir. 1986). The motion to stay is denied.
The court's direction staying further filings in the action remains in place. The court by future order will give leave and direction as to the filing of any responsive pleadings relating to defendant Bagby's disposition motion (Dkt. No. 12).
IT IS ACCORDINGLY ORDERED this 16th day of May, 2005, that the plaintiff's Motion to Remand and Motion for Preliminary Injunction in Case No. 04-1298-JTM (Dkt. Nos. 74, 88), and plaintiff's Motion to Remand and Motion to Stay in Case No. 05-1046 (Dkt. Nos. 7, 17) are denied for the reasons stated herein.