Opinion
Case No: 4:12-CV-00054-SA-JMV
02-26-2013
THE ESTATE OF JAMES CROWDER BY AND THROUGH CATHERINE WARD, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES CROWDER, AND ON BEHALF OF AND FOR THE USE AND BENEFIT OF THE WRONGFUL DEATH BENEFICIARIES OF JAMES CROWDER Plaintiff, v. CRYSTAL HEALTH & REHAB OF GREENWOOD, LLC d/b/a CRYSTAL HEALTH & REHAB OF GREENWOOD, COVENANT DOVE, LLC, COVENANT DOVE HOLDING COMPANY, LLC, ARK MISSISSIPPI HOLDING COMPANY, LLC, JUDY ULLERY, JOSHUA BATCHELOR, UNIDENTIFIED ENTITIES 1-10, AND JOHN DOES 1-10 (AS TO THE CRYSTAL HEALTH & REHAB FACILITY) Defendants.
ORDER GRANTING MOTION FOR LEAVE TO AMEND
Consistent with the court's oral ruling made during a telephonic hearing held this day, Plaintiff's second Motion for Leave to File First Amended Complaint [51] is GRANTED. Specifically, as in the court's prior Order [36] denying Plaintiffs' motion for leave to amend without prejudice, the court has applied the factors in Hensgens v. Deere & Co., 833 F.2d 1179 (5th Cir. 1987). While the court's findings with regard to the Hensgens factors are largely consistent with the court's prior findings, the court should note that it is even more convinced that the potential for prejudice to Plaintiff will be significant if the amendment is not allowed— considering that the court is bound by the Mississippi Court of Appeals' holding in Sykes v. Home Health Care Affiliates, Inc., No. 2011-CA-00913-COA, 2012 WL 4497362 (Miss. Ct. App. Oct. 2, 2012) and Miss. Code Ann. 11-7-13's providing that "there shall be but one (1) suit for the same death." Furthermore, Plaintiff has now complied with the notice requirement of Miss. Code Ann. § 15-1-36(15) with respect to the putative defendants. As such, the court can find no factor weighing heavily against allowing the proposed amendment and is of the opinion that the proposed amendment should be allowed.
THEREFORE, IT IS ORDERED that Plaintiff's Motion for Leave to Amend is granted, and Plaintiff must file its amended complaint by 5:00 p.m. today. Additionally, considering that the amendment will destroy diversity, Plaintiff must file a motion to remand by 5:00 p.m. on February 27, 2013.
Jane M. Virden
UNITED STATES MAGISTRATE JUDGE