Byard v. Verizon Communications Inc. et al

Filing 47

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND [DKT. NO. 26] AND DENYING AS MOOT DEFENDANTS' MOTIONS TO DISMISS [DKT. NOS. 3, 29, 32]: denying as moot 29 Motion to Dismiss; 32 Motion to Dismiss; 3 Motion to Dismiss and granting 26 Motion to Remand to State Court. Signed by District Judge Irene M. Keeley on 7/29/11. (mh) Modified on 7/29/2011 to add certified copy of this order, along with certified copy of docket sheet mailed to the Circuit Court of Harrison County, WV and editing the title of this docket entry. NEF regenerated. (mh).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA CHARLES R. BYARD, Plaintiff, v. // CIVIL ACTION NO. 1:11CV83 (Judge Keeley) VERIZON COMMUNICATIONS, INC., VERIZON WEST VIRGINIA, INC., ANDREA L. CUSTIS, VICTORIA L. BOSTON, CORBY MILLER and MARY FREDERICK, Defendants. ORDER GRANTING PLAINTIFF’S MOTION TO REMAND [DKT. NO. 26], AND DENYING AS MOOT DEFENDANTS’ MOTIONS TO DISMISS [DKT. NOS. 3, 29, 32] The defendants, Andrea L. Custis and Victoria L. Boston, removed this case from the Circuit Court of Harrison County, West Virginia, on the grounds that the claims of the plaintiff, Charles R. Byard (“Byrad”), are completely preempted by the Labor Management Relations Act of 1947, 29 U.S.C. § 185 (“LMRA”), and the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. (“ERISA”). Byard moved to remand this case on the grounds that his claims are not completely preempted. In a Memorandum Opinion and Order entered this date in the case of Brosius v. Verizon Communications Inc., et al., No. 11CV38 (N.D.W. Va.), the Court explains its BYARD V. VERIZON COMMUNICATIONS, INC., ET AL. 1:11CV83 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND [DKT. NO. 26], AND DENYING AS MOOT DEFENDANTS’ MOTIONS TO DISMISS [DKT. NOS. 3, 29, 32] reasons for remanding that case to the Circuit Court of Harrison County, West Virginia. Other than the identity of the plaintiff and the inclusion of a claim for fraud, the material considerations of this case are indistinguishable from the material considerations addressed in Brosius. The legal principles set forth in Brosius compel the Court to conclude that, at bottom, none of Byrad’s claims is preempted either by the LMRA or ERISA. Accordingly, the Court GRANTS Byard’s motion to remand (dkt. no. 26), DENIES AS MOOT the defendants’ motions to dismiss (dkt. nos. 3, 29, 32), and REMANDS this case to the Circuit Court of Harrison County, West Virginia. It is so ORDERED. The Court directs the Clerk to transmit copies of this Order to counsel of record, and to mail a copy to the Circuit Court of Harrison County, West Virginia. DATED: July 29, 2011. /s/ Irene M. Keeley IRENE M. KEELEY UNITED STATES DISTRICT JUDGE