LESLIE H. SOUTHWICK, Circuit Judge: The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R.APP. P. AND 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED. Voting against en banc rehearing were: Chief Judge Edith H. Jones, Judge Carolyn Dineen King, Judge E. Grady Jolly, Judge W. Eugene Davis, Judge Jerry E. Smith, Judge Emilio M. Garza, Judge...
DeMOSS, Circuit Judge: Appellant Jete Crosby appeals the district court's summary judgment on her Employee Retirement Income Security Act of 1974 (ERISA) claim to recover denied health care benefits and the magistrate judge's decision to limit discovery. The challenges raised by Crosby require us to determine the scope of admissible evidence and permissible discovery in an ERISA action to recover benefits under 29 U.S.C. 1132(a)(1)(B). Because the court too narrowly defined the scope of...
EMILIO M. GARZA, Circuit Judge: Karen Martin sued her former employer, PepsiAmericas, Inc. ("Pepsi"), to recover unpaid overtime wages allegedly due under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 201 et seq. The district court granted Pepsi's motion to dismiss for lack of subject matter jurisdiction after finding that Martin's maximum potential recovery was less than the value of her severance package from Pepsi, which the district court determined should be set-off against any...
REAVLEY, Circuit Judge: Appellants CHRISTUS Spohn Health System Corp., CHRISTUS Spohn Health System Corp. d/b/a CHRISTUS Spohn Hospital Corpus Christi-Memorial, and CHRISTUS Health (collectively "CHRISTUS") appeal the district court's denial of their Rule 12(b)(1) motion to dismiss Appellee Susanna Hinojosa Rodriguez's state law claims based on government immunity. The primary issue on appeal is whether Rodriguez's claims fall under the Texas Tort Claims Act. If so, defendant CHRISTUS is...
PRADO, Circuit Judge: This case presents a narrow legal dispute between a healthcare provider, Quality Infusion Care, Inc. ("QIC"), and an insurance company, Healthcare Service Corp., d/b/a Blue Cross and Blue Shield of Texas ("BCBS"). BCBS overpaid QIC for certain patient claims and then set off the overpayments by underpaying subsequent patient claims, without regard to whether the subsequent claim was from the same patient or under the same insurance plan. QIC argues that BCBS's setoffs...
BY THE COURT: A member of the court having requested a poll on the petition for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor, It is ordered that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
KING, Circuit Judge: Larry M. Gentilello, M.D., a tenured professor at the University of Texas Southwestern Medical Center, brought suit under 42 U.S.C. 1983 against his supervisors, alleging that he was wrongfully demoted without due process of law in violation of the Fourteenth Amendment. The district court granted the Defendants' motion for judgment on the pleadings and denied Gentilello leave to file an amended or supplemental complaint. Because we agree with the district court that...
PRADO, Circuit Judge: Plaintiff-appellant Ber'Neice Harris appeals the district court's dismissal of her Title VII action for failure to timely file her complaint. Harris argues that the ninety-day filing period for her religious discrimination action should be equitably tolled because the delay was caused not by the plaintiff but by a clerical error made by her attorney's paralegal. We agree with the district court that equitable tolling does not apply to normal situations of attorney...
PER CURIAM: The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R.APP. P. AND 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED. Voting against en banc rehearing were: Chief Judge Edith H. Jones, Judge Carolyn Dineen King, Judge E. Grady Jolly, Judge W. Eugene Davis, Judge Jerry E. Smith, Judge Emilio M. Garza, Judge Carl E. Stewart, Judge...
GARWOOD, Circuit Judge: Plaintiffs-appellees brought a 42 U.S.C. 1983 claim against City of Laredo Police Officers Juan Villarreal and Jose D. Rubio to recover damages for the death of Zachary Kovacic. The issue on appeal is whether the defendants-appellants are entitled to summary judgment on the defense of qualified immunity. For the reasons stated below, we find that Officers Rubio and Villarreal are entitled to summary judgment and reverse the district court's order denying it. STANDARD...
KING, Circuit Judge: Appellants, objecting members of a proposed settlement class of plaintiffs damaged or injured by Hurricanes Katrina or Rita, seek review of the district court's certification of a limited fund mandatory class under Federal Rule of Civil Procedure 23(b)(1)(B) and its approval of a final class settlement. We hold that the Supreme Court's opinion in Ortiz v. Fibreboard Corp., 527 U.S. 815 , 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999), requires decertification of the mandatory...
EDITH H. JONES, Chief Judge: Appellant Bell challenges the dismissal with prejudice of his case following the district court's denial of his requests either to substitute a new "bellwether" 1 plaintiff or to continue the scheduled trial date. The court's actions were taken in the course of its management of thousands of similar MDL-consolidated suits for allegedly injurious formaldehyde exposure in FEMA trailers following Hurricanes Katrina and Rita. After reviewing all the factors that...
PER CURIAM: Petitioner James Carey ("Carey") seeks review of a Benefits Review Board ("BRB") order denying him attorney's fees under 28(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. 901 et seq. 1 We GRANT the petition for review, VACATE the decision of the BRB, and REMAND for further proceedings consistent with this opinion. FACTS AND PROCEEDINGS Carey was injured while working as a longshoreman for Respondent Ormet Primary Aluminum Corporation ("Ormet")...
EDITH H. JONES, Chief Judge: The Association of American Physician and Surgeons ("AAPS") sued the Texas State Board of Medical Examiners ("the Board") under 42 U.S.C. 1983 for declaratory and injunctive relief against alleged constitutional violations including the Board's use of anonymous complaints and retaliatory actions against physicians. The district court dismissed the case based on AAPS's lack of standing, noting an absence of "Fifth Circuit authority directly on point for the types...
CARL E. STEWART, Circuit Judge: We are asked in this appeal to consider whether a prescriptive statute in Louisiana retroactively applies to Plaintiff-Appellee Eric Holt's cause of action. Holt's home in New Orleans, Louisiana suffered extensive fire damage in January 2007, and he sought to recover payment under his homeowners policy with Defendant-Appellant State Farm Fire & Casualty Company (State Farm). Dissatisfied with State Farm's response to his claim, Holt filed suit against the...
JENNIFER WALKER ELROD, Circuit Judge: We WITHDRAW our previous opinion in this matter and substitute the following. This appeal arises from the district court's denial of Lynn Swanson and Jackie Bomchill's (Appellants) Second Motion to Dismiss based on qualified immunity. Appellants argue, as they did below, that the First Amendment does not apply to elementary school students. Because it has been clear for over half a century that the First Amendment protects elementary school students from...
EDITH H. JONES, Chief Judge: Alphamate Commodity GMBH sought and obtained a Rule B maritime attachment in New Orleans, Louisiana, on a shipment of corn that had been loaded on the M/V GOLDEN STAR bound for Green Valley for Animal Feed Libya ("AFL") 1 in Tripoli, Libya. Alphamate was owed money by AFL. Immediately following this ex parte order, the corn seller, CHS, Inc., and its affiliate, CHS Europe (collectively, "CHS" or "Appellees"), intervened and moved to vacate the attachment. 2...
LESLIE H. SOUTHWICK, Circuit Judge: Physicians enrolled in the Louisiana Patient's Compensation Fund challenge the constitutionality of a state statute denying abortion providers the benefits of participation in the Fund. They seek to enjoin the Patient's Compensation Fund Oversight Board from using that statute to prevent processing and paying of abortion-related claims. The district court determined that the members of this Board were entitled to Eleventh Amendment immunity because they...
W. EUGENE DAVIS, Circuit Judge: In this battle between two insurers, State National Insurance Company ("SNIC") and Seabright Insurance Company ("Seabright"), we must determine which insurer had the obligation to defend Horizon, a defendant in an underlying tort action. We conclude that Seabright had no obligation to defend Horizon based on an exclusion in its policy that excluded coverage if its insured maintained a Protection and Indemnity policy that covered injuries to its crew. It is...
PER CURIAM: The defendant appeals from the district court's order denying his motion to dismiss on double jeopardy grounds. The defendant, an attorney, represented clients bringing silicosis claims against insureds of The Hartford Financial Services Group. He was indicted for wire fraud and mail fraud after he made several payments to employees of The Hartford out of the proceeds from settlements with The Hartford. During the course of a six-week trial, the government abandoned an honest...
