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).

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