Rhodes v. Mariner Health Care (In re Rhodes), 2007 U.S. Dist. LEXIS 32486 (S.D. Miss. 2007)

Plaintiff filed suit on August 25, 2004 against Mariner Health Care, Inc. ; National Heritage Realty, Inc.; Grancare, Inc. ; Evergreen Healthcare, Inc. ; J.D. Lee; Boyd Gentry; Roy Dumas; Lisa Collins; George D. Morgan; Sydney K. Boone, Jr.; Angela Kuntz; James F. Craven; Unidentified Entities 1-10; and John Does 1-10 (As to Yazoo City Health and Rehabilitation). All of the individual defendants were either administrators or licensees of Yazoo City Health and Rehabilitation, a nursing home in Yazoo City, Mississippi. In light of Howard, the Defendants filed motions to dismiss. Plaintiffs filed a motion to remand.

The defendants argued that Howard prevents any recovery from the in-state defendants. Consequently, the defendants argued that the non-diverse defendants were improperly joined, the action became removable after Howard was decided. Plaintiff responded that Section 1446(b) provides that an action may not be removed on the basis of diversity jurisdiction more than one year after the commencement of the state court action.

The court found that a change in the law does not invoke equitable tolling of Section 1446(b) where the Plaintiffs did not manipulate the federal rules to improperly join a defendant.

Decided April 30, 2007

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