Casias v. Wal-Mart Stores, Inc. et al Doc. 11 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JOSEPH CASIAS, Plaintiff, v. WAL-MART STORES, INC., et al. Defendants. Case No.: 1:10-cv-781 Hon. Robert J. Jonker Removed from Calhoun County Circuit Court - Case No. 2010-2067-CZ AGREED MOTION TO STAY DEADLINE TO ANSWER OR OTHERWISE PLEAD TO PLAINTIFF S COMPLAINT UNTIL COURT RULES ON PLAINTIFF S MOTION TO REMAND Defendant Wal-Mart Stores East, L.P., improperly named in the Complaint as Wal-Mart Stores, Inc. ( Wal-Mart ), and Defendant Troy Estill (collectively Defendants ), by their respective counsel, and with the agreement of Plaintiff, move the Court to stay the deadline for Defendants to answer Plaintiff s Complaint or otherwise plead until fourteen (14) days after the Court rules on Plaintiff s Motion to Remand. In support of the Motion, Defendants state as follows: 1. On June 29, 2010, Plaintiff initiated this action by filing a Complaint in the Circuit Court for the County of Calhoun, State of Michigan. 2. On August 5, Defendants timely removed the action to this Court pursuant to 28 U.S.C. 1332 and 1441. [Docket #1.] Defendants assert that diversity jurisdiction exists because Wal-Mart (the only properly joined Defendant) and Plaintiff Joseph Casias are citizens of different states, and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. More specifically, Defendants asserted that Estill has been fraudulently joined to this action, and thus his citizenship should be disregarded for purposes of establishing diversity 1 Dockets.Justia.com
jurisdiction. See e.g., Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999) (Mich.) (denying motion to remand based on fraudulent joinder). 3. On August 16, Plaintiff filed a Motion to Remand, challenging this Court s subject matter jurisdiction over this action by arguing that Estill is a proper Defendant. [Docket # 9.] 4. Defendants intend to file a response in opposition to Plaintiff s Motion to Remand within the time period prescribed by the Court (i.e., September 2, 2010). 5. The deadline for Defendants to answer or otherwise plead to Plaintiff s Complaint is August 24, 2010. [Docket # 8.] 6. Defendants intend to file a motion to dismiss Plaintiff s Complaint in its entirety under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. This Court, however, cannot entertain a motion to dismiss until the Court decides whether it has subject matter jurisdiction over this case. See Godsey v. Miller, 9 Fed. Appx. 380, 384, 2001 WL 523433, *5 (6th Cir. 2001) ( It is a well settled principle that the district court must be certain that federal subject matter jurisdiction is proper before entertaining a motion by defendant under Federal Rule 12 to dismiss the plaintiff s complaint for failure to state a claim upon which relief may be granted. ) (quoting 14C Charles Alan Wright, et al., Federal Practice and Procedure 3739 (3d. ed. 1998)). Any motion to dismiss will be moot if this Court remands the case back to state court. Godsey, 9 Fed. Appx. at 385. 7. Accordingly, Defendants move this Court to stay the deadline for Defendants to answer Plaintiff s Complaint or otherwise plead until the Court rules on Plaintiff s pending Motion to Remand. 8. "[T]he power to stay proceedings is incidental to the power inherent in every 2
court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. Landis v. North Am. Co., 299 U.S. 248, 254-55 (U.S. 1936) (citations omitted); see Adams Respiratory Therapeutics, Inc. v. Perrigo Co., 2007 WL 4284877, *1 (W.D. Mich. 2007) (reciting same standard). The decision to stay proceedings ordinarily rests with the sound discretion of the District Court. Ohio Envtl. Council v. U.S. Dist. Court, S. Dist. Of Ohio, E. Div., 565 F.2d 393, 396 (6th Cir.1977); 9. Here, staying the deadline for Defendants to file their Rule 12(b)(6) motion will promote judicial economy and preserve the parties respective resources. For example, a stay will allow the parties to delay briefing on a motion to dismiss until the Court determines whether it has subject matter jurisdiction and may consider such a motion. Without a stay, the parties will need to prepare simultaneously their respective briefs in opposition to and replies in support of the pending Motion to Remand and Defendants Rule 12(b)(6) motion. Due to the nature of Plaintiff s claims, this briefing will be substantial and, consequently, expend resources of the parties that could be preserved until the Court determines whether subject matter jurisdiction exists. 10. Moreover, granting a stay will not prejudice Plaintiff because he too will benefit if his attorneys are not required to expend the time and resources necessary to brief Defendant s motion to dismiss until the Court determines if it has jurisdiction. The Court has not yet set a dispositive motion deadline in this matter; this matter is not yet scheduled for trial; and modifying the deadlines in this case will not prejudice either party. 3
11. Pursuant to Local Rule 7.1(a), one of Defendants attorneys, Michael Palmer, conferred with one of Plaintiff s attorneys, Daniel Grow, regarding the nature of this motion and legal basis. Plaintiff consented to the Motion. WHEREFORE, Defendants, with Plaintiff s agreement, respectfully request the Court enter an order staying Defendants deadline to answer or otherwise plead in response to Plaintiff s Complaint until fourteen (14) days after the Court rules on Plaintiff s Motion to Remand. Respectfully submitted, BARNES & THORNBURG LLP Date: August 19, 2010 BY: /s/ Kelly A. Powis Michael P. Palmer (P71753) 600 1st Source Bank Center 100 North Michigan Street South Bend, IN 46601-1632 Telephone: (574) 233-1171 E-mail: michael.palmer@btlaw.com Kelly A. Powis (P71876) 171 Monroe Ave., N.W., Suite 1000 Grand Rapids, MI 49503 Telephone: (616) 742-3930 E-mail: kelly.powis@btlaw.com ATTORNEYS FOR DEFENDANTS 4
CERTIFICATE OF SERVICE The undersigned attorney, Kelly A. Powis, hereby certifies that a copy of the foregoing Agreed Motion to Stay Deadline to Answer or Otherwise Plead to Plaintiff s Complaint Until Court Rules on Plaintiff s Motion to Remand has been served this 19th day of August, 2010, to the following counsel of record, via the court s ECF electronic filing system, with a copy also being served via first class, U.S. Mail, postage prepaid: Daniel W. Grow DANIEL W. GROW, PLLC 515 Ship St., Suite 208 St. Joseph, MI 49085 Scott Michelman American Civil Liberties Union Foundation 1102 Pacific Ave., Suite 333 Santa Cruz, CA 95060 Daniel S. Korobkin Michael J. Steinberg Kary L. Moss American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 /s/ Kelly A. Powis 5