McFerrin v. United Speciality Insurance Company et al
ORDER REGARDING PLAINTIFF'S MOTION TO STAY BRIEFING 40 . Signed by Magistrate Judge Timothy J. Cavan on 12/29/2016. (JDR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
CARMEN L. McFERRIN,
DEC 2 9 2016
Clerk, U S District Court
District Of Montana
UNITED SPECIALTY INSURANCE
COMPANY, a Foreign Corporation,
BISHOP BARRY, a Professional Law
Corporation, ANDREW A. GOODE,
REBECCA B. AHERNE and
PARKER, HEITZ & COSGROVE,
PPLC, a Professional Limited Liability
PLAINTIFF'S MOTION TO
Presently before the Court is Plaintiff's Motion to Stay Briefing and Any
Ruling on Defendants' Motions to Dismiss. (Doc. 40.) Defendants have filed an
opposition (Doc. 42), and Plaintiff has replied. (Doc. 43.) Having considered the
parties' submissions, Plaintiff's motion is GRANTED in part, as set forth below.
On September 26, 2016, this action was removed to the United States
District Court for the District of Montana by Defendant Parker, Heitz & Cosgrove
("Parker"). 1 (Doc. 1.) Subsequently, Plaintiff filed two separate Motions to
On October 12, 2016 Defendants United Specialty Insurance Company ("USIC"), Bishop
Barry, Andrew A. Goode ("Goode"), and Rebecca B. Aheme ("Aheme") filed a Notice of
Remand (Docs. 4 and 21 ), Defendant Parker filed a Motion to Dismiss for Failure
to State a Claim (Doc. 6), Defendants Bishop Barry, Goode, and Aheme filed a
Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim (Doc. 35),
and Defendant USIC filed a Motion to Dismiss for Failure to State a Claim. (Doc.
38.) Defendants have also filed a Motion for Leave to file a Sur-Reply Brief
relating to Plaintiffs second Motion to Remand (Doc. 32), and Defendant Parker
filed a Motion for Judicial Notice that is associated with its Motion to Dismiss for
Failure to State a Claim. (Doc. 8.)
Both of Plaintiffs Motions to Remand, Defendant Parker's Motion to
Dismiss, and the related Motion for Judicial Notice, are fully briefed and ripe for
the Court's review. (See Docs. 16, 20, 24, 27, 30, 31, 19, and 29.) Briefing is not
complete on Defendants Bishop Barry, Goode, and Aheme's Motion to Dismiss
for Lack of Jurisdiction and Failure to State a Claim, Defendant USIC's Motion to
Dismiss for Failure to State a Claim, or Defendants' Motion to file a Sur-Reply.
Plaintiff requests the Court stay all outstanding briefing and ruling on any
issues other than remand. (Doc. 40, 41.) Defendants concede that the Court
should decide the Motions to Remand first, but argue the Court should allow
briefing to proceed on their Motions to Dismiss and Motion to File a Sur-Reply.
(Doc. 42.) Defendants also argue the Court should decide Defendant Bishop
Removal and Joinder in Parker's Notice of Removal. (Doc. 12.)
Barry, Goode, and Aheme's Motion to Dismiss, as well as Defendant Parker's
Motion for Judicial Notice, and their Motion to File a Sur-Reply, because those
motions do not address the merits. (Doc. 42.)
The Court declines to enter a formal stay of any ruling on the fully briefed
motions in this action. Nevertheless, the Court agrees with the parties that the
Motions to Remand should be addressed first, and thereupon finds good cause to
suspend briefing on Defendants Bishop Barry, Goode, and Aheme's Motion to
Dismiss and Defendant USIC's Motion to Dismiss, until after the Motions to
Remand are decided. The Court finds suspending completion of briefing on these
two motions promotes the interests of judicial economy, as well as conserves the
parties' resources. Further, the Court does not find Defendants will be prejudiced
by temporarily delaying briefing on the motions until after the Court has resolved
whether this action should be remanded to state court.
With regard to Defendants' Motion to File a Sur-Reply, however, the Court
will require briefing to proceed because the motion relates to Plaintiffs second
Motion to Remand. The Court notes that Plaintiff failed to oppose Defendants'
Motion to File a Sur-Reply within the time set forth by the Local Rules. Typically,
this failure would be deemed an admission that the motion is well-taken. See L.R.
7. l(d)(l )(B)(ii). But given that Plaintiff filed the instant Motion to Stay prior to
her opposition deadline, the Court finds good cause to briefly extend the time for
Plaintiff to oppose.
Accordingly, IT IS ORDERED:
No further briefing on Defendants Bishop Barry, Goode, and
Aheme's Motion to Dismiss (Doc. 35), or Defendant USIC's Motion to Dismiss
(Doc. 38), shall be required until after the Court issues a ruling on Plaintiffs
Motions to Remand. The Court will issue a briefing schedule for the Motions to
Dismiss following resolution of the Motions to Remand, if necessary.
If Plaintiff wishes to oppose Defendants' Motion to File a Sur-Reply
Brief relating to Plaintiffs second Motion to Remand (Doc. 32), the opposition
shall be filed no later than January 6, 2017. Defendants may file a Reply by
January 13, 2017.
The Court will address the fully briefed motions in this action in due
DATED this 29th day of December, 2016.
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