Fryar v. Beverly Enterprises, Inc.

Full title: ERSELL FRYAR, INDIVIDUALLY AND FOR AND ON BEHALF OF THE WRONGFUL DEATH…

Court: United States District Court, N.D. Mississippi, Western Division

Date published: Jul 19, 2006

Civil Action No. 3:04CV215-P-A (N.D. Miss. Jul. 19, 2006)

Opinion

Civil Action No. 3:04CV215-P-A.

July 19, 2006

ORDER

W. PEPPER JR., District Judge

This cause is before the Court on the plaintiff's Motion to Remand [15-1]. The Court, having reviewed the motion, the briefs, the authorities cited and being otherwise fully advised in the premises, finds as follows, to-wit:

Pursuant to the Fifth Circuit's decision in Gray v. Beverly Enterprises-Mississippi, Inc., 390 F.3d 400 (5^th Cir. 2004), the motion to remand is well-taken and should be granted. Essentially, the Court in Gray held that, contrary to the defendants' argument for removal in this case, "it is at least reasonable to expect that a Mississippi court might find that the allegations of the in-state defendants' malfeasance and nonfeasance are sufficient to state a claim under state law."Id. at 410. Thus, pursuant to Travis v. Irby, 326 F.3d 644, 647 (5^th Cir. 2003), the plaintiff has demonstrated that there is a reasonable basis for predicting that he will recover against the Mississippi administrator-defendants in state court. Accordingly, the defendants cannot meet their burden of proving improper joinder.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the plaintiff's Motion to Remand [15-1] is well-taken and should be, and hereby is, GRANTED. IT IS FURTHER ORDERED that this cause is hereby remanded to the Circuit Court of Tippah County, Mississippi.

SO ORDERED.