Echard et al v. West Virginia Veteran's Nursing Facility et al

Filing 12

MEMORANDUM OPINION AND ORDER granting 10 MOTION by Dana Echard to remand this action to Kanawha County Circuit Court. Signed by Judge John T. Copenhaver, Jr. on 11/6/2017. (cc: counsel of record; any unrepresented parties) (taq)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON DANA ECHARD, individually and on behalf of the wrongful death beneficiaries of LESLIE EUBANK, Plaintiff, v. Civil Action No. 2:17-cv-03530 WEST VIRGINIA VETERANS NURSING FACILITY and JAMES B. HILL, Defendants. MEMORANDUM OPINION AND ORDER Pending is Dana Echard’s (“Ms. Echard”) motion to remand, filed October 10, 2017. Ms. Echard initiated this action in Kanawha County Circuit Court on April 17, 2017. She alleges that the West Virginia Veteran’s Nursing Facility (“WVVNF”) and Dr. James B. Hill (“Dr. Hill”) negligently cared for the deceased, Leslie Eubank, resulting in his death. Because Dr. Hill is an employee of the Federal Veteran’s Administration, the United States removed the action to this court on July 6, 2017, pursuant to 28 U.S.C. §§ 2679, 1442, and 1446. On August 23, 2017, the court dismissed Dr. Hill from the action according to an agreed order. Ms. Echard now seeks to remand the action to state court for lack of SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON THOMAS PARKER, subject Plaintiff, matter jurisdiction. The WVVNF does not object to v. remand. Civil Action No. 15-14025 THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM, an Employee Welfare Benefits Plan, Subject matter jurisdiction in the United States LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, a Massachusetts Corporation, through either federal question or district courts can arise and DOES 1 THROUGH 10, inclusive, diversity. See 28 U.S.C. § 1331, 1332 (2015). For cases Defendants. removed from a state court to a district court, “[i]f at any ORDER AND NOTICE time before final judgment it appears that the district court Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the following dates are hereby fixed as the time by or on which lacks subject matter jurisdiction, the case shall be remanded.” certain events must occur: Id. § 1447(c). The under remaining claim in this case is a 01/28/2016 Motions only F.R. Civ. P. 12(b), together with supporting briefs, memoranda, affidavits, or other state-law negligence actionsupport thereof. (All motions such matter in against the WVVNF, a state agency. unsupported by memoranda will be denied without Accordingly,prejudice pursuant to L.R. Civ. P. 7.1 (a)). over the court lacks subject matter jurisdiction the action, Last the action must be remanded. and day for Rule 26(f) meeting. 02/08/2016 02/15/2016 Last day to file Report of Parties= Planning Meeting. See it Civ. P. 16.1. For this reason,L.R. is ORDERED that Ms. Echard’s motion to 02/22/2016 remand this action to Kanawha County at the Robert C. Scheduling conference at 4:30 p.m. Circuit Court be, Byrd United States Courthouse in Charleston, before and hereby is, granted. the undersigned, unless canceled. Lead counsel directed to appear. 02/29/2016 Entry of scheduling to forward copies of this The Clerk is directed order. 03/08/2016 opinion and order to all counselP of record disclosures. Last day to serve F.R. Civ. 26(a)(1) and any written The Clerk is requested to transmit this Order and unrepresented parties. Notice to all counsel of record and to any unrepresented parties. ENTER: November 6, 2017 DATED: January 5, 2016 John T. Copenhaver, Jr. United States District Judge 2

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