Plaintiff originally filed a complaint in federal court alleging negligence that resulted in pressure ulcers and amputation of Plaintiff’s right leg. Manor Care later filed a third party complaint, after which, Plaintiff filed a separate action in State court against the third party defendants in the federal case. Manor Care moved the court to abstain […]

Defendants in a State court action filed a declaratory judgment action in federal court seeking a declaration as to the validity of an arbitration agreement. The resident’s sister had signed the Agreement for Arbitration. The court found it clear that resident could not have signed the agreement herself due to HIV, CVA with right-side hemiparis, […]

Defendant sought dismissal of Plaintiff’s case due to plaintiff’s failure to file an expert report within 120 days as provided in the Texas statute. The magistrate recommended denial of Defendant’s motion. The magistrate found that the Texas disclosure rule was a discovery rule and that in a diversity case, the federal rules of discovery applied.

Plaintiff filed its action on April 13, 2004. Plaintiff was a resident at the defendant nursing home from January 8, 2002 through March 4, 2002. The applicable statute of limitations was two years from the date of discovery. The court found that Plaintiff should have known of the resident’s injuries not later than March 4, […]

Plaintiff filed suit, settled for $87,487.85 , and then secured a final judgment in State Court. Later, when plaintiff sought to garnish the insurance policy, the insurer removed the action to federal court. Plaintiff sought to remand the case to State court, citing 28 U.S.C. § 1332(c)(1), which provides that in a direct action against […]

Defendant moved to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 4. Under 5th Circuit precedent, the court must first determine whether the parties agreed to arbitrate and whether the dispute in question falls within the scope of the agreement. Here, the resident’s daughter signed the arbitration agreement without a power of […]

This is a reinsurance case involving Laurier, an insurer of Extendicare, and its reinsurance carrier, Employers. In 2002 Laurier, Extendicare’s insurer, settled a wrongful death case and allocated $2.5 million to alleged negligence at Extendicare’s Alpine location during 1996. Laurier sought indemnification from Employers which was denied. Employers claimed Laurier’s failure to give prompt notice […]

A wrongful death case was removed to federal court on diversity grounds. Defendants alleged fraudulent joinder. Plaintiff’s motion to remand was granted. The court found that the removing party bears the burden of showing fraudulent joinder. In particular, Defendant argued there was no reasonable possibility that Plaintiff could recover against the Mississippi defendant, citing the […]

Plaintiff filed a State court action alleging nursing home negligence at a home controlled by JPMorgan. When admitted, Plaintiff’s mother filed a conspicuous arbitration clause, introduced in bold-faced font stating “ARBITRATION – PLEASE READ CAREFULLY.” After the State court action was filed, JPMorgan filed a federal action to compel arbitration. The only argument considered was […]

On November 7, 2002, when resident was admitted to a nursing home, her daughter signed an agreement for arbitration. On August 23, 2004, a nursing home negligence case was filed in State court. Mariner then filed a federal action to compel arbitration. Fifth circuit precedent indicates the court should determine (1) whether there is a […]

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