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Topic:

Civil Law (Research Paper Sample)

Instructions:

Can NPI successfully dismiss Sally’s motion pursuant to Fed. R. Civ. P. 23. citing statute of limitation problem?

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Content:

Civil Law
Question 3
Issue
Whether the plaintiff can remand the civil case removed to the federal district court by the defendant to recover damages according to the 2010 Georgia Code 51-1-6 and to establish whether the defendant is vicariously liable for Dan’s (defendant’s employee) negligent act.
Rule
The defendant owed the plaintiff duty of care according to the Georgia Code 51-1(6). Based on the ‘respondeat superior’ doctrine, a hospital is vicariously liable for its agent’s negligent activities, if the employee acted within his/her employment scope when the event occurred.
Application
In the current matter, the defendant had a duty to offer dental care to the plaintiff regardless of the disability. The Americans with Disabilities Act (‘the ADA’) prohibits discrimination towards disabled individuals in the conferment of services. The defendant’s agent was bound by ADA and Georgia statute 51-1-6, hence the agent committed a tort by failing to provide dental services to the plaintiff. The plaintiff can only recover damages if the claim is instituted by the federal government since ADA does not provide victims with such a remedy. The plaintiff is eligible to recover damages from the defendant in a state court according to the Georgia statute stated. Even though the defendant has removed the case to the federal district in Georgia, the case may be remanded to the state court since its removal towards the federal court is inappropriate.
Assuming that I am the federal district court judge handling the case, I would grant the motion for remand pursuant to 28 U.S.C. section 1447(c). The defendant violated ADA § 12182(a) which prohibits discrimination of any personality based on disability in regards to enjoyment of facilities, services, goods, accommodations, or advantages in any facility of public accommodation. The plaintiff can only recover damages if the civil case is filed by the government, heard and decided in a state court based on ADA violation claims. My decision to further grant the motion for remand
Assuming that I denied the motion for remand and that Dentists ‘R Us has filed a third-party complaint seeking indemnification from Dan according to Fed. R. Civ. P. 14(a) and Dr. Dana has objected the patient’s decision to amend his complaint to include a claim against Dr. Dan based on a state tort theory. Dan’s objection is invalid since the federal district in Georgia has jurisdiction to hear the civil case. The federal district court can hear cases arising from United States laws and apply these legal principles to decide a case. As held in Doe v. Guthrie Clinic, Ltd. 2014, Dr. Dan was personally liable for negligence since he acted outside the scope of his employment. According to Fed. R. Civ. P. 14(a) Dentist’s R Us is indemnified from their agent’s misconduct which the federal district court has jurisdiction over the matter. Dan’s objection is null and void and the plaintiff can seek to recover damages from him under the federal district court in Georgia based on state tort theory.
Conclusion
Dan was acting independently and outside the scope of his employment, so he is personally liable for the damages caused to the plaintiff. The plaintiff can recover damages suffered through the state court or seek injunctive relief under the federal district court in Georgia.
Question 4
Issue
Can NPI successfully dismiss Sally’s motion pursuant to Fed. R. Civ. P. 23. citing statute of limitation problem?
Rule
Tolling is a legal principle that enables the delaying or pausing the running of the time period established by a statute of limitation, thus allowing a case to the filed even after the lapse of the statute of limitation. Erie doctrine requires that when a federal court is invited to solve a dispute requiring application of supplemental jurisdiction and not uprightly connecting a federal issue, the court must leverage the state substantive law.
Application
The ‘discovery rule’ refers to an exemption concerning the statute of limitations that encompasses lodging a lawsuit depending on the time take to notice damages, condition, injury, or discover misconduct. For instance, the plaintiff (Sally Smith) began consuming Nutri-plus in early 1994 and later in the year discovered injury (unexplained physical symptoms: swollen legs and arms, joint and muscle pain, and fatigue). Assuming that Sally’s cause of action accrued in 1994, the deadline for lodging a case would be 1996, or two years after the incidence occurred. However, if Sally sustained injuries after the filing deadline had elapsed and a medical report revealed that the injuries are connected to the consumption of the Nutri-plus supplement, the ‘discovery rule’ applies allowing her to file a case based on the date the injury was discovered.
NPI argues that Sally’s suit is invalid due to the statute of limitations problems. Sally, on the other hand, argues that the statutory limitations was tolled and did not being to run from the date the incident occurred. Tolling was developed in Crown, Cork & Seal and the American Pipe cases, whereby the Supreme Court noted that the introduction of tolling was essential to accomplish one of

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