McIntyre v. Aurora Cares, LLC. et al

Filing 59

Order granting in part and denying in part 57 MOTION to Enforce Settlement Motion to Reinstate and Enforce Mediation Agreement filed by Carol McIntyre. The 57 Motion is GRANTED as to the motion to reinstate and DENIED as to the motion to enforce mediation agreement. Granting 58 MOTION to Supplement Notice of Supplemental Filing filed by Carol McIntyre. Pretrial Conference set for 9/28/2011 at 12:00 Noon in US Courthouse, Judge's Chambers, 113 St. Joseph Street, Mobile , AL 36602 before Judge Kristi K. DuBose. Joint Pretrial Document due by Noon on 9/27/2011. Jury Selection set for 10/4/2011 at 08:45AM and for trial during the month of October, 2011, in Mobile, Alabama. Signed by Judge Kristi K. DuBose on 9/22/2011. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CAROL McINTYRE,
Plaintiff,
vs.
AURORA CARES, LLC, d/b/a/ TARA
CARES and MOBILE NURSING AND
REHABILITATION CENTER, LLC.,
Defendants.

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CIVIL ACTION NO. 10-00208-KD-C

ORDER
This action is before the Court on the motion to reinstate and enforce mediation
agreement filed by Plaintiff Carol McIntyre (doc. 57).1 Upon consideration, and for the reasons
set forth herein, the motion is GRANTED as to the motion to reinstate and DENIED as to the
motion to enforce mediation agreement.
This action having been reinstated to the active docket of this Court, the Rule 16(b)
Scheduling Order (doc. 24) is amended as follows:
8. Final Pretrial Conference. This action shall be pretried by Judge Kristi DuBose on
Wednesday, September 28, 2011 at 12:00 noon, in Mobile, Alabama.
The Joint Pretrial Document required by the Order Governing Final Pretrial Conference
shall be due on or before 12:00 Noon, Tuesday, September 27, 2011 (doc. 24-1, ¶ 1.).
9. Trial Date. This action will be set for jury selection on Tuesday, October 4, 2011 at
8:45 a.m. and for trial during the month of October, 2011, in Mobile, Alabama, the specific date
to be set once the total number of actions to be tried that month is determined. The parties have
1

Plaintiff’s motion to supplement (doc. 58) is GRANTED.

estimated that this action will require 2-3 trial days.
Motion to reinstate
According to the Order entered on September 1, 2011, this action was dismissed with
prejudice subject to the right of either party to reinstate the action within thirty (30) days of the
date of the Order should the settlement agreement not be consummated (doc. 56). The thirty
day time period will expire on October 1, 2011. Therefore, the motion is timely.
Motion to enforce settlement agreement
This Court does not have inherent power to enforce a settlement agreement solely on the
basis that the agreement was reached in connection with a civil action before this Court. In
Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375 (1994), the Supreme Court explained
that enforcement of a settlement agreement “is more than just a continuation or renewal of the
dismissed suit, and hence requires its own basis for jurisdiction.” Id. at 378. The “enforcement
of the settlement agreement is for state courts, unless there is some independent basis for federal
jurisdiction.” Id. at 382. Thus, this Court must have either ancillary jurisdiction because “the
parties’ obligation to comply with the terms of the settlement agreement had been made part of
the order of dismissal” or “some independent basis for federal jurisdiction” exists. Id. at 380-382.
The settlement agreement was not made part of this Court’s Order of dismissal. Thus,
ancillary jurisdiction does not exist. Also, the information provided is not sufficient for the
Court to determine whether an independent basis of jurisdiction, such as diversity jurisdiction,
exists over the settlement agreement.
DONE and ORDERED this 22nd day of September, 2011.

s / Kristi K DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE