* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30205

EDUCATION MANAGEMENT, INC.

Plaintiff - Appellant

v.

SCOTTSDALE INSURANCE COMPANY

Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

(2:06-cv-05846-HGB-DEK)

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

In December 2002, Plaintiff-Appellant Education Management, Inc.

(“EMI”) was sued by numerous individuals in Mississippi state court for

emotional and psychological harm assertedly incurred in EMI’s “re-birthing”

workshops. Defendant-Appellee Scottsdale Insurance Company (“Scottsdale”),

which provided Commercial General Liability Insurance to EMI, defended EMI

in this suit under a reservation of rights. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 31, 2008

Charles R. Fulbruge III

Clerk
No. 07-30205

1 Scottsdale and EMI have reached a settlement on Scottsdale’s declaratory judgment

action and the district court has dismissed that case. 

2 Fed. R. Civ. P. 13(a). 

2

In April 2004, Scottsdale filed suit in the Eastern District of Louisiana

seeking a declaratory judgment that its Policy No. CLS705445, which covered

EMI for the period from August 26, 2000 to August 26, 2001, did not require it

to defend and indemnify EMI against the state claims. EMI responded with a

counterclaim that this policy did cover the state claims against it.1

In September 2006, EMI filed the instant suit, claiming that its Policy No.

CLS626016, which covered EMI for the period from August 26, 1999 to August

26, 2000, entitled it to defense and indemnification from Scottsdale for the state

claims, and that Scottsdale had violated various insurance laws by refusing

coverage. Scottsdale filed a motion for summary judgment, which the district

court granted on the basis that EMI’s claims under Policy No. CLS626016 should

have been raised as compulsory counterclaims in Scottsdale’s earlier declaratory

judgment action. EMI timely filed a notice for appeal. 

We are convinced that the district court correctly barred EMI from

bringing its claims under Policy No. CLS626016. Pursuant to Federal Rule of

Civil Procedure 13, EMI must have raised its claims under Policy No.

CLS626016 as compulsory counterclaims in Scottsdale’s 2004 declaratory

judgment action as they “arise[] out of the transaction or occurrence that [was]

the subject matter”2of that suit, viz., incidents occurring at EMI’s “re-birthing”

classes. Although several of the state court plaintiffs were injured during the

period covered by Policy No. CLS626016, EMI did not assert claims for coverage

under this policy in the counterclaim it filed in response to Scottsdale’s 2004

declaratory judgment action. Neither did EMI submit a supplemental

memorandum therein as to whether Policy No. CLS705445 was a renewal of

Policy No. CLS626016 when the district court requested briefing on this issue.
No. 07-30205

3

As EMI’s claims under Policy No. CLS626016 arose out of the same transaction

or occurrence as those addressed in the earlier suit, such claims are compulsory

counterclaims. EMI thus waived these compulsory counterclaims when it failed

to assert them in Scottsdale’s 2004 lawsuit. As such, EMI’s claims are deemed

to have been adjudicated in a prior final judgment and are therefore barred by

res judicata. The judgment of the district court is AFFIRMED.