Emericare, Inc. et al v. Calvin

Filing 27

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kathleen M. Tafoya on 3/6/2018. This court RECOMMENDS that Plaintiffs 1 petition to compel arbitration be GRANTED; Defendant be ENJOINED from further pursuing the underlying Denver District Court action: Calvin v. Watermark Order, 2016-CV-34673; The federal case be stayed; The court direct the Clerk of the Court to ADMINISTRATIVELY CLOSE the case pursuant to D.C.COLO.LCivR 41.2, pending completion of arbitration pursuant to the Parties Arbitration Agreement; and the court, following any final order of arbitration, permit the Parties to move to re-open the case upon good cause, including to enforce the arbitration award. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17–cv–00446–RM–KMT
WATERMARK HARVARD SQUARE, LLC a Delaware limited liability company,
WATERMARK HARVARD SQUARE AP, LLC, a Delaware limited liability company,
WATERMARK HARVARD SQUARE OWNER, LLC, a Delaware limited liability company,
WATERMARK RETIREMENT COMMUNITIES, INC., an Arizona corporation,
WATERMARK SERVICES I, LLC, a Delaware limited liability company, and
WATERMARK SERVICES IV, LLC, a Delaware limited liability company,
Plaintiffs,
v.
WILLIE LEE CALVIN,
Defendant.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Kathleen M. Tafoya
This case was initiated by way of a complaint filed on February 17, 2017. (See Doc. No.
1 [Compl.].) Embedded within the complaint is a petition seeking relief, inter alia, to compel
arbitration. Defendant filed a response to the complaint on April 21, 2017. (Doc. No. 17
[Resp.]). Two replies were filed on May 5, 2017. Because several parties have since been
dismissed through stipulation,1 only one reply remains relevant—i.e., the reply filed by the
Watermark Plaintiffs. (Doc No. 20 [Reply].) No further briefing has been filed.

1

See Doc. No. 26: Order of Dismissal as to the Complaint by the Plaintiffs’ Emericare, Inc. d/b/a
Brookdale Roslyn; Emerical, Inc.; Emericare Countryside Village, Inc.; Emeritus Corporation;
Brookdale Senior Living, Inc. (‘Brookdale Plaintiffs’) and Defendant. Those plaintiffs still in
suit are referred to as “Plaintiffs” or “Watermark Plaintiffs.”

INTRODUCTION
This case involves arbitration arising from facts in state court litigation. More
specifically, on September 28, 2013, David Calvin—as attorney in fact for Ms. Willie Lee
Calvin—signed a Resident Agreement for Ms. Calvin to be admitted to Watermark Harvard
Square nursing care facility. This agreement included an arbitration clause (“Arbitration
Agreement”) (See Doc. No. 1, Ex. 2 [Arbitration Agreement]).
During her stay at Watermark Harvard Square, Ms. Calvin suffered injuries which led to
her asserting claims in state court for negligence and violations of the Colorado Consumer
Protection Act (“CCPA”).
In the present case, Plaintiffs seek to compel arbitration and enjoin Defendant from
pursuing claims in state court. (See Compl. ¶¶31-68.) Plaintiffs contend that the Arbitration
Agreement governs disputes between the parties and that the Arbitration Agreement is valid and
enforceable under the Federal Arbitration Act (“FAA”). Plaintiffs contend that the state court
claims arise out of the services provided to Ms. Calvin by Plaintiffs and, as such, fall squarely
within the scope of the Arbitration Agreement—requiring Ms. Calvin to refer her claims to
mediation and binding arbitration.
Defendant disputes any notion that her claims are controlled by the Arbitration
Agreement and that, inter alia, state court is the proper forum to reconcile all claims between the
parties.2

2

Since Plaintiffs’ petition for relief is embedded within the complaint itself, the court will
dispose of Doc. Nos. 1, 17 and 20 in this Recommendation.
2

ANALYSIS
Defendant challenges arbitration on two fronts—specifically: (1) Defendant requests that
this court abstain from ruling on the complaint and allow the state court to address the arbitration
issue, and (2) if the court chooses not to abstain, Defendant requests that the complaint still be
dismissed since the Arbitration Agreement is unenforceable under state law. Tethered to this
second issue is a complex federal preemption analysis.
In short, because abstention is not warranted—and because the Arbitration Agreement is
enforceable—the court recommends that the District Judge hold in favor of Plaintiffs on both
issues. Given this result, the District Judge should also compel Defendant to pursue her claims in
accordance with the Arbitration Agreement and grant any residual relief relevant to same.
A. Abstention
Defendant argues abstention in accordance with the doctrine laid out in Colorado River
Water Conservation District v. United States, 424 U.S. 800 (1976).
Abstention allows “a federal court ... [to] stay or dismiss a federal suit pending resolution
of a parallel state court proceeding.” THI of N.M. at Vida Encantada, LLC v. Lovato, 848 F.
Supp. 2d 1309, 1318 (D.N.M. 2012) (citing Colo. River., 424 U.S. at 817; Fox v. Maulding, 16
F.3d 1079, 1081 (10th Cir. 1994).3

3

The Colorado River doctrine is not truly an abstention doctrine, because it is based on
considerations of wise judicial administration instead of principles of comity. Its application is
limited to actions for coercive relief, such as the compelled arbitration sought here. Safety Nat'l
Cas. Corp. v. Bristol–Myers Squibb Co., 214 F.3d 562, 564 (5th Cir. 2000) (noting that
compelled arbitration is a form of coercive relief, and applying Colorado River). Courts
consistently, however, refer to the exercise of the doctrine as abstention. See Eric C. Surette,
When Are Proceedings Parallel so as to Permit Federal Court Abstention Under Colorado
River, 176 A.L.R. Fed. 517 (2011).
3

Generally “the pendency of an action in the state court is no bar to proceedings
concerning the same matter in the Federal court having jurisdiction . . . .” Colo. River, 424 U.S.
at 817. The Supreme Court has emphasized that the federal courts have a “virtually unflagging
obligation . . . to exercise the jurisdiction given them,” including in cases involving parallel state
litigation. Id. Thus, abstention from the exercise of federal jurisdiction is “the exception, not the
rule.” Id. at 813.
The abstention analysis involves a two-step process. In declining jurisdiction, there must
first be a showing that “the state and federal proceedings are parallel.” Fox v. Maulding, 16 F.3d
1079, 1081 (10th Cir. 1994). Under Tenth Circuit law, a court will “examine the state
proceedings as they actually exist to determine whether they are parallel to the federal
proceedings.” Id. If the cases are not parallel, the court must exercise jurisdiction. But if the
cases are parallel, a second step is required—i.e., a court “must . . . determine whether deference
to state court proceedings is appropriate.” Id. at 1082.
To determine deference, the following factors are considered: “(1) whether either court
has assumed jurisdiction over property; (2) the inconvenience of the federal forum; (3) the
desirability of avoiding piecemeal litigation; and (4) the order in which the courts obtained
jurisdiction.” Id. Other factors the court may consider include “the vexatious or reactive nature of
either the federal or the state action, whether federal law provides the rule of decision, ... the
adequacy of the state court action to protect the federal plaintiff's rights, ... [and] whether the
party opposing abstention has engaged in impermissible forum shopping.” Id. (internal citations
omitted). The court is to balance all the factors as they apply to this particular case, and “any
doubt should be resolved in favor of exercising jurisdiction.” Id.

4

1. Parallelism of State and Federal Proceedings
Suits are parallel, for purposes of Colorado River abstention, if substantially the same
parties litigate substantially the same issues in different forums. Fox, 16 F.3d at 1081–1082.
Put differently, suits are parallel if the state court litigation will be an “adequate vehicle for the
complete and prompt resolution of the issue between the parties,” such that “the federal court
will have nothing further to do in resolving any substantive part of the case.” Id. at 1081–1082.
Here, Defendant satisfies the first step of the abstention analysis—parallelism. Most of
the parties are the same, litigating substantially the same issues. The fact that one of the parties in
the state action is not present in the federal action is “inconsequential.”4 THI of New Mexico at
Vida Encantada, LLC v. Archuleta, No. CIV. 11-0399 BB/ACT, 2012 WL 8169886, at *4
(D.N.M. Jan. 12, 2012) (“Asymmetry of parties is inconsequential especially where the parties
are united by identical legal interests.”); see D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223,
1230 (10th Cir. 2004).
More critically, the core claims in each case conform—namely the federal arbitration
claim. Moses H. Cone, 460 U.S. at 28. Still, Plaintiffs challenge such conformity, contending that
the negligence and CCPA claims in the state action purportedly provide points of distinction—
creating asymmetry between the claims. But the argument misses the mark. It ignores the fact
that the arbitration issue is squarely before the state court and the federal court, respectively.
Indeed, because the arbitration claim is the only claim before federal court, there is sufficient
symmetry for parallelism purposes. See Day v. Union Mines, Inc., 862 F.2d 652, 656 (7th Cir.
1988) (In determining if suits are parallel, a court looks “not for formal symmetry between the
4

The parties absent in the federal suit are the administrators of the nursing home. Plaintiffs’ have
not disputed that they would have near identical interests to the parties to suit. (See Resp. at 8.)
5

two actions, but for a substantial likelihood that the state litigation will dispose of all claims
presented in the federal case.”).
In sum, because the threshold issue favors Defendant, the Court must next turn to the
Colorado River factors to assess whether deference and abstention are warranted.
2. Colorado River Factors – Exceptional Circumstances
Holding that the claims are parallel at step one does not win the day for Defendant. The
court must proceed to the second step and consider a non-exclusive list of factors to decide if
“exceptional circumstances” exist to warrant abstention. Fox, 16 F.3d at 1082. No factor is
dispositive, and the weight given to each factor is left to the court’s discretion. Id.
As an initial matter, and to support the second step of the analysis, Defendant placed
much emphasis on a Sixth Circuit decision: Preferred Care of Delaware, Inc. v. VanArsdale, 676
F. App’x 388, 391 (6th Cir. 2017). While this case supports Defendant’s position on the issue of
parallelism, it is found wanting with respect to the step two of the abstention analysis.
Significantly, in VanArsdale there is a critical factual distinction that undercuts Defendant’s
position—i.e., in VanArsdale, the state court disposed of the arbitration issue in advance of the
federal court litigation. In this case, however, the arbitration issue is still in play—neither the
state, nor federal forum has yet to make a decision on the Arbitration Agreement. With regard to
several factors (e.g., third/fourth), the distinction is telling.
Turning to the first factor, the parties are in fierce agreement that that there is no property
in suit. This factor has no bearing on the analysis.
The second factor—the inconvenience of the federal forum—clearly cuts in favor of
Plaintiffs since the distance between state and federal courts is less than two miles. Defendant

6

concedes as much; yet, at the same time, counters that the state court “can provide quicker
resolution to the arbitration issue” than a federal court. (Resp. at 6.) This argument is rejected—
lacking relevancy. More so, there is nothing offered by way of statistical data to support the
assertion. The second factor weighs in favor of Plaintiffs.
The third factor5—the desirability of avoiding piecemeal litigation—is contested by both
parties. Courts have stated that piecemeal litigation is generally appropriate to enforce arbitration
rights under the FAA “even where the result would be the possibly inefficient maintenance of
separate proceedings in different forums.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217
(1985); see also Moses H. Cone, 460 U.S. at 20 (observing that the FAA “requires piecemeal
resolution when necessary to give effect to an arbitration agreement”).6

5

A substantial factor in the Colorado River analysis is whether there are special concerns
associated with resolving the issues in a piecemeal fashion via parallel proceedings. “Piecemeal
litigation occurs when different tribunals consider the same issue, thereby duplicating efforts and
possibly reaching different results.” Am. Int’l Underwriters (Philippines), Inc. v. Cont’l Ins. Co.,
843 F.2d 1253, 1258 (9th Cir. 1988). Any case in which Colorado River is implicated will
inevitably involve the possibility of “conflicting results, piecemeal litigation, and some
duplication of judicial efforts,” which are the “unavoidable price of preserving access to . . .
federal relief.” Neuchatel Swiss Gen. Ins. Co. v. Lufthansa Airlines, 925 F.2d 1193, 1195 (9th
Cir. 1991) (alteration in original) (internal quotation marks omitted).
6

Factor three overlaps, in part, with factor five (governing law). Regarding the latter, Defendant
argues that Colorado law applies to the Arbitration Agreement and that the FAA is inapplicable,
hence federal policies would not be relevant to the abstention analysis are not relevant. (See
Resp. at 7.) But this analysis is deficient. No effort is made by Defendant to deal with (let alone
acknowledge) the strong default presumption that the FAA, not state law, supplies the rules for
arbitration. See Sovak v. Chugai Pharm. Co., 280 F.3d 1266, 1269 (9th Cir.), opinion amended
on denial of reh'g, 289 F.3d 615 (9th Cir. 2002) (citing Volt, 489 U.S. at 479; Mastrobuono, 514
U.S. at 61-62; Roadway Package Sys. v. Kayser, 257 F.3d 287, 293 (3d Cir. 2001) (stating that
parties must evidence a “clear intent” to incorporate state law rules for arbitration)). To
overcome that presumption, parties to an “arbitration agreement must evidence a ‘clear intent’ to
incorporate state law rules for arbitration.” Golden v. O'Melveny & Meyers LLP, No. CV148725-CASAGRX, 2016 WL 4168853, at *12 (C.D. Cal. Aug. 3, 2016) (quotations omitted).
7

To the extent that the state court’s involvement in this case creates piecemeal litigation (if
at all), the case law tends to show that this is of little significance—and that the federal policies
underlying the FAA should be afforded much weight. Cf. Nationwide Mut. Fire Ins. Co. v.
George V. Hamilton, Inc., 571 F.3d 299, 308 (3d Cir. 2009) (abrogated on other grounds).
Defendant fails to address the strong, federal undercurrent that the FFA imposes on the
third factor. Indeed, despite stating that the third factor is “paramount,” Defendant’s analysis is
given short shrift. (See Resp. at 7.) No more than three lines are dedicated to Defendant’s
position, largely relying on the Sixth Circuit’s VanArsdale decision to do the heavy lifting. 676
F. App’x at 391. But, as addressed earlier, VanArsdale is distinct from the instant case. There,
the state court had already adjudicated the arbitration clause before arbitration issue was before
the federal court. To then have the federal court to adjudicate the arbitration issue would have
been duplicative. Id. Such duplicity typifies piecemeal litigation. By contrast, here, the state
court action has not yet adjudicated the arbitration issue. That action has been stayed—only
reinforcing a lack of duplicity in this case vis-à-vis VanArsdale, and the general need to exercise
federal jurisdiction over the FFA claim. The view is fortified by the fact that there is nothing in
the instant dispute that evinces an important rationale, policy or legislative preference for
resolving the arbitration issue in state proceedings.
In sum, factor three fails to provide the impetus Defendant had hoped for. The facts in
suit are distinguishable from VanArsdale and counsel against abstention. 7

Because Defendant does not point to any provisions in the Arbitration Agreement to support a
clear intent, the FFA is controlling law. This dispels any ambiguity on this issue.
7

The instant case, too, is distinguishable from Colorado River where piecemeal litigation was a
genuine concern involving multi-state regulation of water rights in the Southwest, where water
8

The fourth factor—the order in which the courts obtained jurisdiction—is nuanced. The
factor is not a strict first-past-the-post analysis; rather, priority is measured “in terms of how
much progress has been made in the two actions.” Cone Mem’l Hosp., 460 U.S. at 21-22.
Pending such progress, the federal court should exercise jurisdiction where, at the time a federal
court rules on abstention, “no substantial proceedings ... ha[ve] taken place” in state court.
(emphasis added.)
Here, a mere two months separate the state and federal suits. The temporal difference is
marginal. Having progressed in equivalent amounts, both cases are in their relative infancy.
This is borne out in circumstances where the parties to the state court action have not completed
any discovery, nor has there been a case management order issued. Instead, the state proceeding
has been stayed pending adjudication of the Arbitration Agreement. Defendant’s argument—in
which she contends that the state action was the first filed and that this weighs heavily in favor of
abstention—lacks merit.
Consistent with the case law, being first-past-the -post holds little (if any) weight when it
comes to analyzing the fourth factor. As such, because there have been no substantial
proceedings in the state court, this factor counsels against abstention.
The fifth factor—the source of the governing law—is neutral. Plaintiffs correctly point
out that the FAA governs the Arbitration Agreement as a whole, “so that any analysis of the
agreement will inevitably involve federal law to at least some degree.” VanArsdale, 676 F.
App’x 388, 391. Nonetheless, when determining the enforceability of the Arbitration

remains scarce, such that inconsistent dispositions of those rights could trigger further litigation.
See Colo. River, 424 U.S. 819–20 (“The clear federal policy evinced by [the McCarran
Amendment] is the avoidance of piecemeal adjudication of water rights in a river system.”).
9

Agreement, this court is bound to apply the state law of contract formation. Id. As a result,
“neither state nor federal law clearly predominates in this case.” Id. Given that the sources of law
are mixed, this factor neither favors nor disfavors abstention.
The sixth factor—adequacy of the state court action to protect the federal Plaintiffs’
rights—is a factor not pertinent to the calculus in this case. If this factor were afforded any
weight, the court subscribes to Plaintiffs’ argument that the sixth factor is, by its very nature, a
factor that does not weigh in favor of abstention. Stewart v. W. Heritage Ins. Co., 438 F. 3d 488,
493 (5th Cir. 2006) (“The sixth factor is either a neutral factor or one that weighs against
abstention.”). Even if this view is wrong, there is nothing in Defendant’s briefing to warrant
abstention.
With regard to the seventh factor, there is no evidence here that Plaintiffs have acted in
bad faith or vexatious manner. Instead, Plaintiffs have sought resolution of a federal issue (under
the FAA) in a federal court. Cf. Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir. 1991)
(“the FAA provides a federal cause of action which calls upon the court to decide whether the
dispute is covered by a written arbitration agreement.”). This factor counsels against abstention.
Finally, an eighth factor—whether the party opposing abstention has engaged in
impermissible forum shopping—is a factor not expressly referenced in Colorado River. It has,
however, been considered by the Tenth Circuit. See Fox, 16 F.3d at 1082 (citing Travelers
Indem. Co. v. Madonna, 914 F.2d 1364, 1370–71 (9th Cir. 1990)). Here, and for reasons similar
to the previous factor, there is nothing vexatious about Plaintiffs seeking adjudication of the
federal FAA claim in federal court. Nor can forum shopping be detected. Like the last factor, a
similar result is yielded here.

10

3. Balancing of Factors
Because there are no factors supporting Defendant’s position in favor of abstention, and
since there are several factors that are neutral (or point the other way), the court has little choice
but to exercise jurisdiction. Indeed, even if all the factors had been neutral or evenly distributed,
“any doubt in the application and balancing of the factors ‘should be resolved in favor of
exercising jurisdiction.’” Potter/Ortiz, LLC, No. CIV 13–1043 at *10 (quoting Fox, 16 F.3d at
1082); see also Colo. River, 424 U.S. 819–21 (“only the clearest of justifications will warrant
dismissal”).8
B. Enforceability of Arbitration Agreements
The enforceability issue is complex. Admittedly, the parties have not provided the court
with a clear elucidation of how the analysis should play out. At times, the parties’ briefs have
blown past each other. But to boil it down: enforceability of the Arbitration Agreement is largely
dictated by federal preemption principles—i.e., whether Colorado’s Health Care Availability Act
(“HCAA”) is preempted by the FAA. For instance, if the court holds that there is no preemption,
Defendant argues that the Arbitration Agreement does not comply with provisions of the
Colorado’s HCAA—rendering the Arbitration Agreement invalid and unenforceable.9

8

The exceptional circumstances in Colorado River were: (a) the absence of any proceedings in
the federal district court, other than the filing of the complaint; (b) the extensive involvement of
state water rights occasioned by this suit naming 1,000 defendants; (c) the 300 mile distance
between the district court in Denver and the state court; and (d) the existing participation by the
Government in state court proceedings in water divisions. See Colo. River, 424 U.S. 819–21.
These factors are clearly not apparent in the present case, reinforcing the case against
Defendant’s position.
9

Section 13–64–403(3) & (4), Colo. Rev. Stat, of HCAA sets forth specific language that must
be included in arbitration agreements relating to medical services. It is the lack of this language
that, according to Defendant, makes the Arbitration Agreement invalid.
11

If, however, there is preemption—and the HCAA is deemed inconsistent with the FAA—
Plaintiffs argue that the Arbitration Agreement is valid and enforceable (because the state law
has been displaced by federal law) and the court can compel arbitration consistent with the FAA.
As an initial matter, it is important to recall that the “FAA creates a separate federal cause
of action for enforcement of agreements within its scope.” Whiteside v. Teltech Corp., 940 F.2d
99, 101 (4th Cir. 1991). Thus, disposition of any FAA claim is federal in nature and creates
tension with any state law that falls within the scope of the FAA’s provisions and policies.
Relevantly, here, the U.S. Supreme Court has made clear that “[w]hen state law prohibits
outright the arbitration of a particular type of claim, the analysis is straightforward: the
conflicting rule is displaced by the FAA.” AT & T Mobility LLC v. Concepcion, 131 S.Ct. 1740,
1749 (2011); see also Marmet HealthCare Center, Inc. v. Brown, 132 S.Ct. 1201 (2012). State
and federal courts “must enforce the Federal Arbitration Act, 9 U.S.C. § 1 et. seq., with respect
to all arbitration agreements covered by that statute.” Marmet, 132 S. Ct. at 1202.
Notwithstanding the above, Defendant argues that the HCAA regulates the Arbitration
Agreement. Defendant contends that § 2 of the FAA does not preempt the HCAA because of the
McCarran-Ferguson Act—proscribing:
No Act of Congress shall be construed to invalidate impair or supersede any law
enacted by any State for the purpose of regulating the business of insurance …
unless such Act specifically relates to the business of insurance.
15 U.S.C. § 1012(b). In other words, and in matters relating to insurance, the McCarranFerguson Act provides that state insurance law is the supreme law of the land. Thus, where state
insurance regulations conflict with federal statutes of general applicability, then McCarranFerguson gives rise to ‘reverse’ preemption—where state law actually trumps federal law.

12

Based on a reverse preemption theory, Defendant’s argument is twofold—i.e., (1) that the
McCarran-Ferguson Act applies in this case, and (2) that the McCarran-Ferguson Act provides a
shield from FAA preemption. Tellingly, Defendant must succeed on both points before the court
can even address the HCAA provisions which, according to Defendant, would invalidate the
Arbitration Agreement.
As to point (1), Plaintiff relies on Allen v. Pacheco, 71 P.3d 375 (Colo. 2003).
There, the majority concluded that the arbitration provisions of the HCAA—regulating
arbitration agreements—qualified as a statute enacted for the purpose of regulating the business
of insurance “to the extent that [the provisions] do specifically regulate the relationship between
a health insurer and its policyholder ... and... do further the interests of policyholders by
ensuring adequate notice of arbitration agreements.” Id. (emphasis added.)
Although, facially, Allen seems partially on point—it is not. The analysis of U.S. District
Court Judge Lewis T. Babcock in Espinosa is instructive (and more relevant). See Espinosa v.
Nexion Health, Inc., No. 14-CV-00752-LTB-MEH, 2014 WL 2781139, at *2 (D. Colo. June 19,
2014). There, Judge Babcock squarely addressed Allen vis-à-vis McCarran-Ferguson Act, noting
as a threshold issue that the court was not bound by the Allen holding because the decision
“principally concerned . . . interpretation of federal law.” Id.
Here, and given the strong similarities between this case and Espinosa (addressing the
same state and federal statutes), the court agrees with Judge Babcock’s holding that Allen is not
binding as a matter of federal precedent. Id.; see also Society for Savings v. Bowers, 349 U.S.
143, 151 (1955) (“Where a federal right is concerned we are not bound by the characterization

13

given to a state tax by state courts.”). The court also subscribes to Judge Babcock’s view “that
there are compelling reasons not to apply the chief holding in Allen”—relevantly stating:
The arbitration agreement at issue in Allen was contained in an agreement with a
health maintenance organization. As recognized by the majority, the
relationship between an HMO medical service provider and patient is the
relationship between a medical insurer and insured. In contrast, the Arbitration
Agreement in this case is wholly unrelated to the business of insurance. The
majority’s conclusion that the McCarran–Ferguson Act operates to reversepreempt the FAA is therefore less persuasive under the circumstances of this case
since Colorado's right to regulate insurance would not be impacted in any way by
the FAA's preemption of § 13–64–403(3) & (4) of the CHCAA.
Id. (emphasis added). In other words, McCarran-Ferguson did not apply in Espinosa because the
agreement in Allen was contained within a contract of insurance between a Health Maintenance
Organization (“HMO)” and its policyholder; while the agreement in Espinosa was between the
resident and the private healthcare facility—being “wholly unrelated to the business of
insurance.” Id.
Just like Espinosa, the Arbitration Agreement here is between a resident and a private
healthcare facility. Because neither of the parties to the Arbitration Agreement are insurance
companies, the McCarran-Ferguson Act does not apply. Reverse preemption plays no role in the
analysis. State law does not trump federal law: the FAA is controlling.
In sum, (1) the McCarran-Ferguson Act does not apply, and (2) the McCarran-Ferguson
Act cannot afford Defendant a shield from federal preemption of the HCAA. It further follows
that because the HCAA is preempted, Defendant cannot rely on its provisions to invalidate the
Arbitration Agreement. It is, therefore, valid and enforceable.10

10

Defendant emphasizes Fischer v. Colorado Health Care, LLC, --- P.3d ---, 2016 WL 4699115
(Colo. App. Sept. 8, 2016). In Fischer, the court never addressed preemption of the HCAA by
the FAA. Irrespective, because of the Espinosa and Allen, supra, Fischer is redundant.
14

C. Motion to Compel Arbitration
Having resolved the abstention and enforceability issues, one further issue remains—i.e.,
whether the court should compel arbitration. Since the Arbitration Agreement is valid, the court
finds no reason not to grant such relief. This is consistent with section 2 of the FAA, which
requires judicial enforcement of arbitration agreements as follows:
A written provision in any maritime transaction or a contract evidencing a
transaction involving commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction, or the refusal to perform the whole or
any part thereof, or an agreement in writing to submit to arbitration an existing
controversy arising out of such a contract, transaction, or refusal, shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract.
Section 2 of the FAA “is a congressional declaration of a liberal federal policy favoring
arbitration agreements, notwithstanding any state substantive or procedural policies to the
contrary.” Moses H. Cone., 460 U.S. at 24.
For completeness—and because Plaintiffs have briefed the issue (Defendant has not)—
the court notes that other circuits have engaged in a four-step analysis when considering motions
to compel arbitration. See Brookdale Senior Living, Inc. v. Stacy, 27 F.Supp.3d 776 (E.D. Ky.
2014) (citing Stout v. J.D. Byrider, 228 F.3d 709, 714 (6th Cir. 2000); see also Brookdale Senior
Living, Inc. v. Walker, 2016 WL 1255722 (E.D. Ky. 2016); Brookdale Senior Living, Inc. v.
Hibbard, 2014 WL 2548117 (E.D. Ky. 2014).
The first step is to “determine whether the parties agreed to arbitrate.” Stout, 228 F.3d at
714. If so, then the second step is to consider the scope of the agreement. Id. Third, “if federal
statutory claims are asserted, [the court] must consider whether Congress intended those claims
to be nonarbitrable.” Id. Finally, “if the court concludes that some, but not all, of the claims in

15

the action are subject to arbitration, it must determine whether to stay the remainder of the
proceedings pending arbitration.” Id.
Here, there was clearly an agreement between Defendant and the Plaintiffs to arbitrate
her claims. In her Response, Defendant does not dispute that (1) the Arbitration Agreement
qualifies as a contract within the meaning of the FAA; (2) the Arbitration Agreement is valid,
irrevocable, and enforceable pursuant to 9 U.S.C. § 2 (save for the preemption arguments, which
have been addressed supra); (3) the Arbitration Agreement was signed by David Calvin as
attorney in fact for Willie Lee Calvin or that Mr. Calvin had authority to sign the agreement on
Ms. Calvin’s behalf; (4) Ms. Calvin’s claims in the state court action are wholly within the
scope of the Arbitration Agreement, which covers any “dispute, difference, or disagreement” that
“should arise with respect to this [Arbitration] Agreement, and the meaning and construction
hereof.” See Arbitration Agreement at 7.
Each of the conditions to compel arbitration has been met. And because Defendant has
refused to submit her claims to mediation and binding arbitration as required by the Arbitration
Agreement, the court recommends entering an Order directing the parties to do so and enjoin
Defendant from further pursuing the underlying state court litigation.
CONCLUSION
In sum, because abstention is not warranted—and because the Arbitration Agreement is
valid and enforceable—the Court recommends finding in favor of Plaintiffs on both issues.
WHEREFORE, for the foregoing reasons, this court
RECOMMENDS that:
(1) Plaintiff’s petition to compel arbitration be GRANTED;

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(2) Defendant be ENJOINED from further pursuing the underlying Denver District Court
action: Calvin v. Watermark Order, 2016-CV-34673;
(3) The federal case be stayed;
(4) The court direct the Clerk of the Court to ADMINISTRATIVELY CLOSE the case
pursuant to D.C.COLO.LCivR 41.2, pending completion of arbitration pursuant to the
Parties’ Arbitration Agreement; and
(5) The court, following any final order of arbitration, permit the Parties to move to re-open
the case upon good cause, including to enforce the arbitration award.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579–80 (10th Cir. 1999) (stating that a

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district court’s decision to review a magistrate judge’s recommendation de novo despite the lack
of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real
Prop., 73 F.3d at 1059–60 (stating that a party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52
F.3d 901, 904 (10th Cir. 1995) (holding that cross-claimant had waived its right to appeal those
portions of the ruling by failing to object to certain portions of the magistrate judge’s order);
Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (holding that plaintiffs waived their
right to appeal the magistrate judge’s ruling by their failure to file objections). But see MoralesFernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (stating that firm waiver rule does not
apply when the interests of justice require review).
Dated this 6th day of March, 2018.

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