Gray v. Mariner Health Cent., Inc., 2006 U.S. Dist. LEXIS 65725 (D. Miss. 2006)

Annie Pickens resided at Defendants’ nursing home from October 8, 2002 until April 19, 2003, dying the next day. A wrongful death action was filed in State court on August 30, 2004; defendants removed it to federal court on January 10, 2005. Defendants moved to dismiss and on February 7, 2005, Plaintiffs agreed to dismiss without prejudice to allow them to comply with the medical malpractice act by giving 60 days notice of intent to sue and by certifying that a medical expert was consulted before filing suit. On October 17, 2005, the action was refilled in federal court. Defendants moved for summary judgment, arguing that the two year statute of limitations barred the action. The Court rejected Plaintiff’s “discovery” arguments and its argument that Miss. Code Ann. § 15-1-69 gave Plaintiff an additional year to re-file after dismissing a claim. Nonetheless Defendant’s motion was denied because filing the original action tolled the Statute of limitations; when Plaintiff dismissed the original action, the clock resumed clicking with 233 days remaining. The new action was filed within that time period.