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Campagna v. GGNSC Louisville Hillcreek, LLC

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

August 13, 2017

DORIS CAMPAGNA, Plaintiff,
v.
GGNSC LOUISVILLE HILLCREEK, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          COLIN LINDSAY, MAGISTRATE JUDGE.

         This 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.

         I. BACKGROUND[1]

         According 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.)

         On 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].)

         On 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[2], 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.)

         Grimes 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.

         Plaintiff 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. (Id.)

         Also on 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.

         On 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.)

         Defendant 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.)

         On 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.

         On 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.

         On 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 ...


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