Opinion
Case No. 05-4048-RDR.
May 11, 2005
MEMORANDUM AND ORDER
This is an action alleging violations of the Kansas Consumer Protection Act, K.S.A. 50-623 et seq. and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. This action was originally filed in the state district court for Geary County, Kansas. It has been removed to this court, pursuant to 28 U.S.C. § 1441(b). This case is now before the court upon plaintiffs' motion for remand.
The motion for remand acknowledges that this court has jurisdiction to consider this action due to the claims plaintiffs are making under federal law. Plaintiffs assert, however, that this court is not compelled to retain this matter because the state court is competent to decide the federal claims and because there are "more important" state law issues.
The court does not believe remand is proper simply because the state court has the authority to decide the federal claims in this action. See Cheney v. J.N. Studstrup, 32 F.Supp.2d 1278, 1279-80 (D.Utah 1998). Nor is this a situation in which plaintiffs' federal claims are separate and independent from the state law claims and remand is proper under 28 U.S.C. § 1441(c). Finally, while plaintiffs assert that their state claims are "more important," they do not claim that the state claims predominate in this matter. Our inspection of the petition indicates that the state claims do not predominate this matter.
It appears undisputed that defendants have the right to remove this case to this court, and there is no claim that removal was improperly done. The court is unpersuaded by plaintiffs' arguments for remand and, therefore, the motion for remand shall be denied.
Plaintiffs ask in the alternative that the court set deadlines for defendants to file answers to the first amended complaint and to the discovery requests that have been served. Plaintiffs also seek a deadline for defendants' initial Rule 26 disclosures. The deadline for defendants to file an answer is established in FED.R.CIV.P. 81(c):
In a removed action in which the defendant has not answered, the defendant shall answer or present the other defenses or objections available under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after the service of summons upon such initial pleading, then filed, or within 5 days after the filing of the petition for removal, which period is longest.
The court shall decline to establish the discovery deadlines requested by plaintiff. But, the court shall refer this matter to Magistrate Judge Sebelius for the prompt arrangement of the discovery procedures called for under FED.R.CIV.P. 26.
The hearing previously set to consider plaintiffs' motion for remand is hereby cancelled.
IT IS SO ORDERED.