United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
LINDSAY, MAGISTRATE JUDGE.
matter was referred to the undersigned Magistrate Judge to
determine whether discovery is needed before the pending
Motion to Compel Arbitration (DN 5) can be resolved.
(See DN 22 [referral order].) To that end, the
undersigned will consider only the issue of whether discovery
should be permitted, not whether any agreement to arbitration
is valid or enforceable.
to the complaint filed in Jefferson Circuit Court, Franklin
Grimes (“Grimes”) was a resident of defendant
GGNSC Louisville Hillcreek, LLC d/b/a Golden Living Center -
Hillcreek (“defendant” or
“GLC-Hillcreek”) when he died on June 11, 2015.
(DN 1-1 at 3-4.) GLC-Hillcreek is a long-term nursing care
facility. On or about July 13, 2016, plaintiff Doris
Campagna, executrix of the Estate of Franklin Grimes
(“plaintiff”), filed suit in Jefferson Circuit
Court. (DN 1-1 at 2.)
August 5, 2016, defendant removed this matter to this Court.
On the same date, defendant filed a “Motion to Compel
Arbitration and Stay the Lawsuit Pending Alternative Dispute
Resolution Proceedings” (“Motion to Compel
Arbitration”) (DN 5). In the Motion to Compel
Arbitration, defendant argues that two alternative dispute
resolution (“ADR”) agreements - dated February
19, 2013 and March 26, 2013, respectively - were signed by
Grimes and demonstrate that plaintiff must be compelled to
arbitration. (DN 5-1 at 2, 3 n.1, 9-12 [Ex. A, 2/19/13 ADR
Agreement]; 13-16 [Ex. B, 3/26/2013 ADR Agreement].)
September 7, 2016, plaintiff filed a response (DN 14) to the
Motion to Compel Arbitration. In her response, plaintiff
requests, among other things, that she be permitted to take
discovery on the execution of the ADR agreements. (DN 14 at
11.) Plaintiff states that Grimes was admitted to
GLC-Hillcreek on or about January 12, 2010. (Id. at 3;
DN 14-2 at 2.) Plaintiff states that, prior to filing the
lawsuit, she obtained from defendant what defendant purported
to be all the records pertaining to the care and treatment of
Grimes at GLC-Hillcreek. (DN 14 at 3.) According to
plaintiff, there is no record of an ADR agreement being
signed by Grimes for the January 12, 2010 admission.
(Id.) Grimes was discharged from GLC-Hillcreek on or
about November 8, 2010. (DN 14-2 at 2-3.) Grimes was admitted
to GLC-Hillcreek again from approximately February 16, 2013
to March 8, 2013. (DN 14-3 at 2.) According to plaintiff,
defendant claims that the February 19, 2013 ADR agreement was
signed as part of this admission process. (DN 14 at 3;
see also DN 5-1 at 1, 9-12.)
was admitted to GLC-Hillcreek again from approximately March
21, 2013 to March 23, 2013. (DN 14-4 at 2.) Grimes was then
admitted to GLC-Hillcreek again on or about March 25, 2013.
(DN 14-5 at 2.) According to plaintiff, defendant claims that
the March 26, 2013 ADR agreement was signed by Grimes as part
of this admission process. (DN 14 at 3-4; see also
DN 5-1 n.1, 13-16.) Grimes was subsequently discharged and
readmitted to GLC-Hillcreek several more times.
asserts that certain pages of the ADR agreements - produced
by defendant and relied upon by defendant in its Motion to
Compel Arbitration - were interspersed with pages from other
documents. (See DN 14-10 [out-of-sequence 3/26/13
ADR agreement]; DN 14-13 [out-of-sequence 2/19/13 ADR
agreement].) Plaintiff argues that these circumstances,
namely “the selective agreements on only two admissions
and the manner in which those agreements are interspersed
with the other admission documents in the records of
[GLC-]Hillcreek, raise an inference that the agreements do
not comport with legitimate contract formation and were
obtained either through procedural unconscionability or
fraud.” (DN 14 at 11.) Consequently, plaintiff requests
discovery on the execution of the two ADR agreements.
September 7, 2016, plaintiff filed a “Motion to Defer
Ruling on Defendant's Motion to Compel Arbitration and
Stay the Lawsuit Pending Alternative Dispute Resolution
Proceedings” (“Motion to Defer Ruling”) (DN
15). In the Motion to Defer Ruling, plaintiff again requests
that she be permitted to take discovery on the execution and
formation of the two ADR agreements executed by Grimes;
plaintiff specifically incorporates her response to the
Motion to Compel Arbitration.
September 26, 2016, defendant filed a reply (DN 16) in
further support of its Motion to Compel Arbitration. Along
with the reply, defendant filed, for the first time, a signed
“Resident and Facility Arbitration Agreement” (DN
16-1) dated January 11, 2010. Defendant argues that the
January 11, 2010 arbitration agreement also encompasses
plaintiff's claims in this lawsuit and should be
enforced. (DN 16 at 3.)
also submitted with its reply an affidavit and supplemental
affidavit (DN 16-2) from Alisha Duvall
(“Duvall”), former Admissions Director for
GLC-Hillcreek. In her affidavit, Duvall attests that she has
no independent recollection of the specifics of Grimes's
admission or residency at GLC-HillCreek location, nor does
she remember the specifics of the presentation of the March
26, 2013 ADR agreement to Grimes. (DN 16-2 at 1.) However,
because Duvall's signature was on the March 26, 2013 ADR
agreement, she asserts that she presented it to Grimes.
(Id.) Duvall describes her “standard
process” for presenting ADR agreements to residents.
(Id. at 1-2.) This standard procedure includes
explaining the ADR agreement, including the fact that it is
not a precondition to admission at GLC-Hillcreek and is
revocable up to thirty days. (Id.) In her
supplemental affidavit, Duvall states that she reviewed
Exhibit 10 (DN 14-10), the out-of-sequence March 26, 2013 ADR
agreement filed by plaintiff, and she would not have
presented the admissions papers in this order. (Id.
at 3.) Duvall also states that reviewed Exhibit 11 (DN
14-11), the consecutively-paginated March 26, 2013 ADR
agreement, and that it is organized in the order that she
would have presented it to Grimes. (Id.) Defendant
avers that Duvall's testimony is uncontroverted, and that
plaintiff has produced no evidence that the manner in which
the ADR agreements were apparently retained by
GLC-Hillcreek have anything to do with the manner in which
they were presented to Grimes. (DN 16 at 5, 7.)
October 3, 2016, defendant filed a response (DN 17) to the
Motion to Defer Ruling; defendant incorporates its reply (DN
16) in further support of its Motion to Compel Arbitration.
October 24, 2016, plaintiff filed a reply (DN 20) in further
support of the Motion to Defer Ruling. Among other things,
plaintiff takes issue with defendant's inclusion of the
January 11, 2010 arbitration agreement and affidavits of
Duvall in its reply.
April 25, 2017, the undersigned conducted a telephonic
conference in this matter. During the telephonic conference,
plaintiff requested and was granted permission to file a
sur-reply to ...