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Sorrell v. Regency Nursing, LLC

United States District Court, W.D. Kentucky, Louisville Division

May 28, 2014

NAOMI SORRELL, Plaintiff,
v.
REGENCY NURSING, LLC, d/b/a REGENCY CENTER, Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, Senior District Judge.

This matter is before the Court upon Defendant Regency Nursing, LLC d/b/a Regency Center's Motion to Enforce Arbitration Agreement. (Docket No. 5.) Plaintiff Naomi Sorrell has responded, (Docket No. 13), and Defendant has replied, (Docket No. 14.) Also pending before the Court are Plaintiff's Motion to Remand to State Court, (Docket No. 7), and Motion to Amend Complaint and for Expedited Trial, (Docket No.

8). These matters all are fully briefed and ripe for adjudication. For the reasons that follow, Defendant's Motion to Compel Arbitration, (Docket No. 5), will be GRANTED; Plaintiff's Motion to Remand, (Docket No. 7), will be DENIED; and Plaintiff's Motion to Amend Complaint, (Docket No. 8), will be GRANTED IN PART and DENIED IN PART.

BACKGROUND

Plaintiff Naomi Sorrell executed a durable power of attorney (POA) on December 10, 2012, designating her daughter, Cynthia Bennett, as her true and lawful attorney. (Docket No. 5-2, at 1-4.) The POA outlined a number of authorities given to Bennett, including:

To demand, sue for, collect, recover and receive all debts, monies, interest and demands whatsoever now due or that may hereafter be or become due to me (including the right to institute legal proceedings therefore).
....
To make, execute and deliver deeds, releases, mortgages, conveyances and contracts of every nature in relation to both real and personal property....

(Docket No. 5-2, at 1-2.) The POA provides additional incidental authority relating to the other authorities granted elsewhere in the POA. (Docket No. 5-2, at 2 ("To do and perform all acts necessary or incidental to the carrying out of the powers conferred....").) The POA also contains a broad "catch all" provision, which provides:

I hereby further grant unto my said attorney in fact full power in and concerning the above premises and to so any and all acts, including but not limited to the above, as fully as I could do if I were personally present, and I do ratify and confirm whatever my said attorney in fact shall lawfully do under these presents.

(Docket No. 5-2, at 3.)

On January 5, 2012, Sorrell was transferred to Defendant Regency Nursing, LLC d/b/a Regency Center f/k/a Regency Care and Rehabilitation Center (Regency). That same day, Bennett executed admission documents on behalf of Sorrell. Among those documents was a "Long Term Care Arbitration Agreement" (Arbitration Agreement). The Arbitration Agreement provides, in pertinent part:

AGREEMENT TO ARBITRATE "DISPUTES": Any and all claims or controversies arising out of or in any way relating to this Agreement, the Admission Agreement or any of the Resident's stays at this Facility, ... whether or not related to medical malpractice, including but not limited to disputes regarding the making, execution, validity, enforceability, voidability, unconscionability, severability, scope, interpretation, preemption, waiver, or any other defense to enforceability of this Agreement or the Admission Agreement, whether arising out of State or Federal law, whether existing now or arising in the future, whether for statutory, compensatory, or punitive damages and whether sounding in breach of contract, tort or beach of statutory duties, regardless of the basis for the duty or of the legal theories upon which the claim is asserted, shall be submitted to binding arbitration.

(Docket No. 5-2, at 8.) The Arbitration Agreement also provided the right to rescind the agreement by providing written notice within 30 days of admission. (Docket No. 5-2, at 10 ("RIGHT TO CHANGE YOUR MIND: This Agreement may be cancelled by written notice... from you within thirty (30) calendar days of the Resident's date of admission....").) The Arbitration Agreement recites that Bennett acknowledges having received a copy and that Bennett "has had an opportunity to read it and ask questions about it before signing." (Docket No. 5-2, at 11.) The Arbitration Agreement goes on to state:

Right to Consult with Attorney: Please read this Agreement very carefully and ask any questions that you have before signing it. Feel free to consult with an attorney of your choice before signing this Agreement. Other facilities may or may not request residents to sign such an Agreement, and you have a choice as to which facility you desire to live in.
Waiver of Trial by Judge or Jury: By signing this Agreement, the Parties are giving up and waiving their right to have any Dispute decided in a court of law before a judge and/or jury.

(Docket No. 5-2, at 11.) The Arbitration Agreement states that execution of the Arbitration Agreement is voluntary and not a condition of admission:

VOLUNTARY AGREEMENT: If you do not accept this Agreement, you will still be allowed to live in, and received ...

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