Nursing Home Cases: Motions for Default

Rucker v. Indianola Health & Rehab. Ctr. 2006 U.S. Dist. LEXIS 71192 (D. Miss. 2006). Plaintiff filed wrongful death action against a nursing home alleging personal service on February 18, 2005. Default was entered on March 24, 2005. The case was removed to federal court on April 4, 2005. On April 13, 2005, default judgment was entered in State court. Plaintiff then filed a motion for default in federal court, which was denied due to defective service. On July 20, 2006, the nursing home filed a motion to set aside the default in State Court. The motion was granted. It was undisputed that the person served was not a registered agent authorized to accept service and that the named defendant was a mere trade name. Since there was no proof of service in compliance with Miss. R. Civ. P. 4, there could be no default.

Beverly Enterprises-Arkansas, Inc. v. Jarrett, 2007 Ark. App. LEXIS 100 (Ark. Ct. App. 2007). Plaintiff filed suit for medical malpractice, negligence, violations of the Residents’ Rights Act and wrongful death. The complaint was personally served on Defendant’s agent on February 9, 2005. Defendant had 30 days to file an Answer. Without filing a request for extension, Defendant filed its answer 30 days too late. Plaintiff moved to strike the answer and for default. After hearing, the trial court found no justifiable excuse for failure to file a timely answer, granted the motion to strike and entered default judgment. “Appellant argues that the trial court abused its discretion in granting appellee’s motions because the late answer was the result of excusable neglect. Appellant admits that its agent for service of process forwarded the complaint to its legal department, where its receipt was verified, but argues that it was “unaware” of the lawsuit because the complaint was misplaced by appellant’s clerical help and was never received by appellant’s in-house counsel.” The argument was rejected. The court found that Beverly’s argument, even if its legal department was busy, could be viewed as negligent failure to secure adequate help rather than excusable neglect. See also Beverly Enters. – Ark., Inc. v. Jarrett, 2007 Ark. App. LEXIS 20 (Ark. Ct. App. 2007) (affirming judgment).

 

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