Beverly Enterprises, Inc. et al v. Cyr et al

Filing 20

ORDER that the Defendant's 7 Motion to Dismiss is hereby denied. Defendant is ordered to submit to arbitration her currently pending claim against Plaintiffs in the State Court of Wayne County. It is further ordered that the parties shall joi ntly designate and appoint a substitute arbitrator, and inform the Court of that appointment, within fourteen (14) days of the date of this Order. If the parties fail to do so, the Court shall appoint a substitute arbitrator. The Clerk is directed to close this case. Either party may move to reopen the case if it becomes necessary. Signed by Judge J. Randal Hall on 01/29/2015. (jah)

IN THE

UNITED

STATES

DISTRICT

SOUTHERN DISTRICT

OF

COURT

FOR THE

GEORGIA

AUGUSTA DIVISION

BEVERLY ENTERPRISES,

INC.,

GOLDEN GATE NATIONAL

SENIOR

CARE, LLC, GGNSC HOLDINGS,
LLC, GGNSC CLINICAL SERVICES,
LLC, GGNSC ADMINISTRATIVE
SERVICES, LLC, AND GGNSC

AUGUSTA WINDERMERE, LLC D/B/A *
GOLDEN LIVING CENTER

-

*

WINDERMERE,

*

Plaintiffs,
CV 114-069

JUDY CYR,

as Administrator

of the Estate of Frankie

Campbell, and in her
Representative Capacity
on Behalf of the Children

of Frankie Campbell,
Defendant.

ORDER

Before

the

Court

is

Defendant's

motion

to

dismiss

Plaintiffs' complaint to compel arbitration. (Doc. no. 7.) For
the

reasons

set

forth

herein,

the

motion

is

DENIED

and

Defendant is DIRECTED to arbitrate her claims.

I.

INTRODUCTION

This is a dispute about an arbitration agreement between

a nursing facility in Augusta,

Georgia,

and one of its

residents.

After

the

commencement

of

daughters

state

in

a

death

tort

of

action

court,

the

by

the

resident,

one

of

Facility

and

the

and

the

decedent's

several

other

related entities filed a complaint in this Court to compel
arbitration.

A.

Factual Background

On April

26,

2008,

Ms.

Frankie Campbell

("Campbell")

designated Ms. Judy Cyr ("Cyr") , her daughter, as her attorney

in fact pursuant to a general power of attorney. (Compl., Ex.
A.)

On

June

30,

2008,

Campbell

was

admitted

to

Golden

LivingCenter - Windermere ("the Facility"), a skilled nursing
facility in Augusta,

Augusta

Windermere,

Georgia,

LLC

operated by Plaintiff GGNSC

d/b/a

Golden

LivingCenter

Windermere. (Compl. 1) 14 .)
Upon Campbell's admission to the Facility on June 30,
2008,

Cyr

signed

an

arbitration

agreement

as

Campbell's

authorized representative pursuant to the power of attorney.

(Compl.,

Exs. A,

B.)

The arbitration agreement provides in

pertinent part:

[A] ny and all claims, disputes, and controversies .
. arising out of, or in connection with, or
relating in any way to the Admission Agreement or
any service or health care provided by the Facility
to the Resident shall be

resolved exclusively by

binding arbitration ... in accordance with the
National Arbitration Forum Code of Procedure, which

is hereby incorporated into this Agreement.

Id.

The

reference

in

this

paragraph

to

. . .

the

National

Arbitration Forum Code of

Procedure

("N.A.F.

Code")

is

the

only reference in the arbitration agreement to the National
Arbitration Forum ("N.A.F.") or its Code of Procedure. This is

also the only place in the agreement where the topic of an
arbitration

forum

is

mentioned.

The

N.A.F.

Code,

which

is

incorporated into the agreement, provides that
[t]his Code shall be administered only by the
National Arbitration Forum or by any entity or

individual providing administrative services
agreement with the National Arbitration Forum.
(Def.'s Mot.

to Dis.

at

5.)

In other words,

the

by

agreement

incorporates the N.A.F. Code by reference, and the N.A.F. Code
selects the N.A.F. as the forum for arbitration. However,

the

N.A.F. no longer administers consumer arbitrations. (Pis.' Br.

in Supp. of Compl. at 13-16; Def.'s Mot. to Dis. at 5-10.)
With regard to who must

arbitrate

their claims,

the

agreement

shall inure to the benefit of and bind the parties,
their successors, and assigns, including without

limitation . . . all persons whose claim is derived
through or on behalf of the Resident, including any
parent, spouse, sibling, child ....
(Compl.,

Ex. B.)

The arbitration agreement has a signature line for the
resident

and

a

signature

line

for

an

"authorized

representative" in the event that the resident is unable to
consent or sign. (Id.) Cyr's signature appears on both lines.

(Id.) The document prompts the authorized representative, if

there is one, to describe his/her "Relationship to Resident."

(Id.)

Next to that prompt appears the handwritten letters

"POA."

(Id.)

It seems reasonable to infer that

"POA"

stands

for "power of attorney" because the parties agree that Cyr
signed the agreement on Campbell's behalf pursuant to a power
of attorney.

Campbell resided at the Facility from June 30, 2008 until

her death on February 2,
During her residency,

2012.

(Def.'s Mot.

Cyr asserts

that

to Dis. at 1.)

Campbell

sustained

injuries including pressure sores, weight loss, contractures,
falls,

2012,

infections,

and ultimately death.

(Id.) On August 7,

Cyr was appointed administrator of Campbell's estate.

(Compl. H 19; Ex. C.)
B. Procedural History
1.

The State Court Action

On January 13,

2014,

Cyr

filed a complaint

in Wayne

County Superior Court, Georgia, against the Facility, several
other related entities,

and Ms.

Angie Denison

("Denison")

alleging negligence in the care and treatment of Campbell.
(Compl.,

Ex.

C.)

administrator of

the

Cyr

alleged

that

Denison

was

the

Facility during Campbell's residency.

(Id.) Cyr brought the action as administrator of Campbell's
estate

and

in

her

Campbell's children.

representative
(Id.)

capacity

on

behalf

of

The defendants in the state court action asserted in part

as a defense that Cyr had filed that complaint in violation of
an

arbitration

agreement.

However,

Cyr

states

that

the

defendants did not file a motion to compel arbitration nor did

they attempt

to

enforce

the

arbitration agreement

context of the state court proceedings.
at 2.)

was

in

the

(Def.'s Mot. to Dis.

Denison filed a motion to dismiss asserting that she

not,

Facility.

and

never

had

been,

the

administrator

of

the

(Id.) The state court action is still pending.

2. The Complaint in this Court to Compel Arbitration
On March

action,

21,

2014,

minus Denison,

the defendants

in the

state

court

("Plaintiffs")

("Defendant")

this Court against Cyr

filed a complaint in

to compel arbitration

based on diversity jurisdiction. (Compl. 1 8.) Defendant is a
resident

of

the

state

of

Georgia

while

Plaintiffs

are

incorporated and have their principal places of business in
other states.

(Id.

H

1_7-)

Denison,

like Defendant,

is a

Georgia resident and is not joined as a Plaintiff in this
diversity suit to compel arbitration.

(Pis.'

Reply Br.

in

Supp. of Compl. at 8; Denison Affidavit.)
On June 6,

arguing

that

2014,

the

Defendant filed a motion to dismiss

arbitration

agreement

is unenforceable

because the N.A.F. is unavailable as a forum, that Defendant's

wrongful death claims are not subject to arbitration, and that

Denison - or the correct administrator - is an indispensable,
non-diverse party. Defendant also argues that the Court should
abstain from exercising jurisdiction in light of the parallel
state court action and that discovery is needed.

II.

A.

DISCUSSION

Standard for Motions

to Dismiss

In considering a motion to dismiss, courts must accept as
true

all

facts

alleged

in

inferences

plaintiff.

See Hoffman-Pugh v. Ramsey,

Cir.

complaint's

2002) .

legal

the

complaint

reasonable

(11th

in

the

Courts,

light

however,

most
312
need

conclusions as true,

and

construe

favorable

to

F.3d 1222,
not

all

the
1225

accept

the

only its well-pled

facts. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

A complaint also must "contain sufficient factual matter,

accepted

as

true,

'to state

plausible on its face.'"
v.

Twomblv,

550

U.S.

a

claim

to

relief

that

is

Id. at 678 (citing Bell Atl. Corp.

544,

570

(2007)).

The

plaintiff

is

required to plead "factual content that allows the court to
draw the reasonable inference that the defendant is liable for

the misconduct alleged." Id. "The plausibility standard is not

akin to a 'probability requirement, ' but it asks for more than
a sheer possibility that a defendant has acted unlawfully."
Id.

B.

The Federal Arbitration Act

The

arbitration agreement

("F.A.A.")

provides

that

it

"shall

be

governed by and interpreted under the Federal Arbitration Act,
9 U.S.C.
Act

§§ 1-16."

("F.A.A.")

(Compl., Ex. B.) The Federal Arbitration

allows a suit to compel arbitration "under a

written agreement for arbitration." 9 U.S.C. § 4. A district
court must compel arbitration if there is a valid agreement to
do so.

Chastain v. Robinson-Humphrey Co.,

957 F.2d 851,

854

(11th Cir. 1992)(citing 9 U.S.C. §§ 2 & 3.) In the face of an
agreement to arbitrate, the party resisting arbitration must
identify enough evidence in the record to make its denial of
a valid agreement

colorable.

Id.

at

855.

"Federal policy

requires [courts] to construe arbitration clauses generously,
resolving

all

doubts

in

favor of

arbitration."

Becker v.

Davis, 491 F.3d 1292, 1305 (11th Cir. 2007) , abrogated on other

grounds

by Arthur Anderson LLP

v.

Carlisle,

(2009); see Picard v. Credit Solutions,
1253

(11th Cir.

2009)("The F.A.A.

Inc.,

creates

a

556

U.S.

624

564 F.3d 1249,
strong federal

policy in favor of arbitration.").
"The

F.A.A.

reflects

the

fundamental

principle

that

arbitration is a matter of contract" and "places arbitration

agreements on an equal footing with other contracts." Rent-ACenter, W.,

Inc. v. Jackson,

561 U.S. 63,

construing

arbitration agreements,

67

(2010) . Thus, in

courts apply

state-law

principles relating to contract formation, interpretation and
enforceability. See Caley v. Gulfstream Aerospace Corp., 428

F.3d 1359,

1368

(11th Cir. 2005) ("In determining whether a

binding agreement arose between the parties, courts apply the
contract

law

of

the

particular

state

that

governs

the

formation of contracts.") However, district courts may apply
only

state

law

governing

arbitration agreements
Cash Advance of

"contracts

specifically."

Georgia,

LLC,

generally

Jenkins v.

400 F.3d 868,

875

and

not

First Am.
(11th Cir.

2005)(quoting Bess v. Check Express, 294 F.3d 1298, 1306 (11th
Cir.

2002)) .

C. The Unavailability of the National Arbitration Forum

Defendant

argues

that

no valid

arbitration

agreement

exists because an integral part of the agreement - the chosen

forum for arbitration - is no longer available.

Plaintiffs

respond that the reference to the N.A.F. in the agreement may
be severed because it is not integral,

and the remainder of

the agreement should be enforced.

If a forum selection clause is integral to an arbitration

agreement,

and the forum is unavailable,

then arbitration

cannot be compelled. Inetianbor v. CashCall,
1346, 1350 (11th Cir. 2014) (citing

Inc., 768 F.3d

Brown v. ITT Consumer Fin.

Corp., 211 F.3d 1217, 1222 (11th Cir. 2000)). The failure of

the chosen forum precludes arbitration whenever the choice of

forum is

an

integral part of

the

agreement

to

arbitrate,

rather than an ancillary logistical concern. Brown, 211 F.3d
at 1222 (holding that choice of forum was not integral where
the

arbitration agreement

incorporates

the N.A.F.

Code by

reference, and the N.A.F. Code selects the N.A.F. as the forum
for arbitration). To decide whether the forum selection clause

is integral, courts consider how important the term was to one

or

both of

the parties at the

agreement.

Inetianbor,

time they entered into the

768 F.3d at 1350

(citing Brown and

holding that choice of forum was integral where there were

multiple references throughout the text of the arbitration
agreement to the forum's procedural rules and the chosen forum
for arbitration).

The arbitration agreement here is similar to the one in
Brown in that the text of both agreements select the N.A.F.

Code but do not explicitly select the N.A.F. as the arbitral
forum.

The

reference,

agreement
and

the

incorporates

N.A.F.

Code

the

selects

N.A.F.
the

Code

by

as

the

N.A.F.

forum. Under Brown, structuring an agreement in such fashion
is insufficient evidence that the choice of the N.A.F.

as the

forum was an integral part of the agreement rather than an

ancillary

logistical concern.

Inetianbor,

the text

of

where

This

is not

a

case,

like

there are several explicit references in

the agreement

regarding the chosen forum

for

arbitration. Here, the forum is not once mentioned in the text

of the agreement.

Defendant relies on two recent decisions of the Georgia

Court of Appeals to support her argument that the selection of
the

N.A.F.

as

the

forum

was

important

and

therefore

the

N.A.F.'s unavailability precludes arbitration in this case.
See Miller v.

GGNSC Atlanta,

746 S.E.2d 680,

686

(Ga. App.

2013)(unavailability of the N.A.F. as arbitral forum rendered
agreement impossible to enforce); see also Sunbridge Ret. Care
Associates,

LLC

v.

Smith,

2014) (availability of
integral

to

the N.A.F.

arbitration

unavailability of

757

the N.A.F.

S.E.2d

as

157

(Ga.

an arbitral

agreement;

forum was

therefore,

and the N.A.F.

App.

the

Code rendered

arbitration agreement impossible to enforce).
There seems to be a conflict between the law announced in

the state courts in Miller and Smith and the holdings of the

United States Court of Appeals for the Eleventh Circuit in
Brown

and

clarified

in

Inetianbor

on

whether

the

unavailability of the N.A.F. renders an agreement like the one
here

unenforceable.

Miller

and

Smith

would

strike

this

agreement in its entirety and allow Defendant to proceed with
her lawsuits. Brown and Inetianbor would only strike the forum
selection clause and would direct Defendant to arbitrate her

claims through a substitute arbitrator.
The F.A.A. "allows state law to invalidate an arbitration

10

agreement,

provided

the

law

at

issue

governs

contracts

generally and not arbitration agreements specifically." Dale

v. Comcast Corp. , 498 F.3d 1216, 1219 (11th Cir. 2007) . The law
in Miller and Smith is specifically related to arbitration,
not

just contracts

cannot

in general.

invalidate

this

Under the F.A.A.,

arbitration

that law

agreement.

More

importantly, this case falls squarely under Brown. Thus,
Court holds that the unavailability of

destroy this

arbitration agreement;

the N.A.F.

it

the

does not

merely renders

the

forum selection clause unenforceable.

D.

Severance

of

the

Forum

Selection

Clause

and

Substitution of an Alternate Arbitrator

Plaintiffs argue that the Court should sever the forum
selection clause, enforce the arbitration agreement as though

the N.A.F.

is not referenced in any manner,

and designate a

substitute arbitrator pursuant to Section 5 of the F.A.A.
As

for the

severance clause,

severance

issue,

the

agreement

contains

a

which states that

[i]n the event a court having jurisdiction finds
any portion of this agreement unenforceable, that
portion shall not be effective and the remainder of
the agreement shall remain effective.

(Compl., Ex. B.) Pursuant to this provision, the Court hereby
SEVERS

the

unenforceable

arbitration agreement
N.A.F.

forum

- due

to

selection

the

from

the

unavailability of

the

- and finds that the remainder of

11

clause

the agreement is

effective.

As for naming a substitute arbitrator,

the F.A.A. gives

guidance for such circumstances. It states that

[I] f for any [] reason there shall be a lapse in
the naming of an arbitrator . . ., or in filling a
vacancy, then upon application of either party to
the controversy the court shall designate and
appoint an arbitrator ....
9

U.S.C.

§

substitute

5.

Here,

Plaintiffs

arbitrator.

The

ask

Court

the

Court

DIRECTS

to

the

name

parties

jointly designate and appoint a substitute arbitrator,

a

to

and

inform the Court of the appointment, within fourteen days of
this Order.

Pursuant to Section 5 of

the F.A.A.,

"shall designate and appoint an arbitrator"
prove unable to do so.

See 9 U.S.C.

if

the Court

the parties

§ 5.

E. Defendant's Wrongful Death Claims

Defendant signed the arbitration agreement as Campbell's
"authorized representative" pursuant to a power of attorney.

As Defendant correctly notes,

nowhere does the arbitration

agreement indicate that Defendant signed the document in any
individual capacity,

authority to

nor does it

indicate that she had any

sign on behalf of Campbell's other children.

Defendant argues that, by not signing,

she and her siblings

did not consent to arbitrate their wrongful death claims.
Consent

to arbitrate

is

an

essential

component

of

an

enforceable arbitration agreement. Hogsett v. Parkwood Nursing

12

& Rehab.

Ctr.,

Inc.,

997

F.

Supp.

2014)(citing Ashburn Health Care

S.E.2d 430,

Defendant

431

did

(Ga. App.

not

sign

Ctr.,

2007)).

the

2d 1318,

1328

Inc.

v.

Poole,

the

However,

arbitration

(N.D.

fact

agreement

in

Ga
648

that

her

individual capacity and the fact that her siblings did not
sign the agreement

in any capacity prove

to

be

of

little

import here for two reasons.

First, the language of the arbitration agreement itself

clearly binds the resident's children without requiring the
children's consent or signature.

[The arbitration agreement] shall inure to the
benefit of and bind the parties, their successors
and assigns, including without limitation . . . all
persons whose claim is derived through or on behalf
of the Resident, including any parent, spouse,
sibling, child ....

(Compl., Ex. B.) As a matter of contract interpretation, the
Court

finds

that

Campbell,

through

her

authorized

representative, obligated her children to submit their derived
wrongful death claims to arbitration.
Second, if an arbitration agreement is enforceable as to
a

decedent

and

the

decedent's

estate,

then

it

is

also

enforceable as to any individual wrongful death claims brought

by

the decedent's survivors,

regardless of

whether any of

those survivors signed the arbitration agreement. Hogsett, 997

F.

Supp.

2d

at

1328

("As a

wrongful

death

claim

is

a

derivative claim that takes on all defenses available against
13

the decedent, if the decedent was unable to prevail in a tort
claim based on the conduct

that

led to her death,

survivors would likewise be estopped.");

then her

Thi of Georgia at

Shamrock, LLC v. Fields, 2013 WL 6097569, *3 (S.D.Ga. Nov. 18,

2013) (" [T] he Georgia wrongful death statute essentially places
a beneficiary

beneficiary

in the

is

same

bound

shoes

by

the

as

the

decedent;

decedent's

thus,

promise

a

to

arbitrate."); Wade v. Watson, 527 F. Supp. 1049, 1052 (N.D.Ga.

1981) ("Although it is true that the action created by the

wrongful death statute is different from the cause of action
which [the decedent]

would have possessed had he lived,

defense which would have been good against [the decedent]

any

is

good against his representatives in a wrongful death action.
Since the original statute of 1850

[the Supreme Court of

Georgia] has consistently held that no recovery could be had
unless the deceased in his lifetime could have maintained an

action

for

damages

for

the

injury

to

him,

and

that

any

defenses good as against the deceased would be good as against
the action brought by the beneficiaries."). Accordingly,
the

extent

that

the

arbitration

agreement

is

valid

to
and

enforceable, the wrongful death claims of Campbell's children
are subject to arbitration.
F. Indispensable Parties

Defendant argues that the complaint must be dismissed

14

pursuant

to

Federal

Rule

of

Civil

Procedure

19

because

Plaintiffs manufactured diversity jurisdiction by failing to
join

a

non-diverse

indispensable

party,

namely

the

administrator of the Facility. Rule 19 states a two-part test

for determining whether a party is indispensable. Focus on the
Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1279
(11th Cir.

2003).

First,

the Court must ascertain under the

standards of Rule 19(a) whether the person in question is one
who should be joined if feasible. Id. "If the person should be

joined but cannot be

(because,

for example,

joinder would

divest the court of jurisdiction), then the Court must inquire
whether, applying the factors enumerated in Rule 19(b), the
litigation may continue." Id.
In the state court action, Defendant named Denison as the
administrator.

not,

Denison then informed that court that she is

and never has been,

the administrator. Defendant "seeks

to discover the correct administrator" and argues that "Ms.

Denison is a Georgia resident, as would any other appropriate
administrator (s) , most likely, and their joinder would destroy

diversity jurisdiction." (Def.'s Mot. to Dis. at 19.) Joinder
of the administrator would only destroy diversity jurisdiction
if the administrator is in fact a non-diverse party. Defendant

cannot state with any degree of certainty whether that is the

case.

Apparently,

Defendant

15

does

not

know

who

the

administrator was during her mother's stay at the Facility or
in

which

state

he/she

resides.

The

Court

declines

the

invitation to dismiss a complaint or even take up a Rule 19

analysis based on the "most likely" residence of a yet to be
identified person.
G.

Abstention

Defendant

asks

this

Court

to

abstain from exercising

jurisdiction in this case in light of the parallel state court
action.

Where

proceedings,

there

are

federal

parallel

courts

federal

consider

and

six

state

factors

in

determining whether abstention is appropriate:
(1)

the

order

jurisdiction

in

over

which

the

property;

inconvenience of the fora;

courts

(2)

(3)

assumed

the

relative

the order in which

jurisdiction was obtained and the relative progress
of

the

two

actions;

(4)

the

desire

to

avoid

piecemeal litigation;
(5)
whether federal law
provides the rule of decision; and (6) whether the
state court will adequately protect the rights of
all parties.
Jackson-Platts v. General Elec. Capital Corp., 727 F.3d 1127,
1141 (11th Cir.
v.

2013)(citing Colorado River Water Cons. Dist.

United States,

424 U.S.

factor is dispositive,

800,

818-20

(1976)).

No single

and federal courts are required to

weigh the factors with a heavy bias favoring the exercise of
federal
McCollum,

jurisdiction.
144

("[D]ismissal

Id. ; First

F.3d 1362,
is

1364

warranted in

16

Franklin

Fin.

(11th Cir.

1998)

light

a

of

Corp.

v.

(per curiam)

concurrent

state

court

action

only

when

a

balancing

of

relevant

factors,

heavily weighted in favor of the exercise of jurisdiction,
shows the case to be exceptional."

(internal quotation marks

omitted)).

Here,
should

be

the parties agree that the Colorado River factors
applied

to

resolve

the

abstention

issue,

but

disagree whether those factors weigh in favor of abstention.
The first factor asks if one court assumed jurisdiction over
property before the other court. Jackson-Platts,

727 F.3d at

1141.

this factor

Where there is no real property at issue,

does not favor abstention.

Id.

The parties here agree that

this factor weighs against abstention because there is no real
property before the state court.
The

second

factor

concerns

the

inconvenience

of

the

federal forum and focuses primarily on the physical proximity
of the federal forum to the evidence and witnesses.

this

factor,

Defendant argues

federal litigation,

that

Id.

Under

she did not anticipate

but she does not argue that the federal

forum is geographically inconvenient. As Plaintiffs observe,
the

federal

forum

is

located

in

Augusta,

Georgia,

where

Defendant resides, where the Facility is located and where the

arbitration agreement at issue was executed. The second factor

weighs against abstention because the federal forum is not
inconvenient.

17

Under

the

third

factor,

the

Court

asks

which

forum

acquired jurisdiction first. Id. at 1142. "What matters is not
so much the chronological order in which the parties initiated
the

concurrent

proceedings
federal
2014,

proceedings,

and whether

but

the

the

progress

party availing

forum should have acted earlier."

Defendant

filed

the

state

court

of

itself

Id.

of

the

the

In January

action.

Two

months

later,

Plaintiffs sought relief in this Court. Although the

state

court

action

is

still

pending,

very

little

has

transpired there since Plaintiffs filed their complaint here.
Therefore, this factor does not weigh in favor of abstention.
See McCollum,

144

F.3d at

1365

(this factor weighs against

dismissal when no activity has occurred in state proceeding
before the filing of the federal petition); see also JacksonPlatts,

727 F.3d at 1142

counsel

in

favor of

(noting that this factor does not

dismissal

when state

court

action is

no

further along than the federal case).
The fourth factor addresses the potential for piecemeal

litigation. Defendant contends that piecemeal litigation is a
danger

here

and

therefore

the

Court

should

not

exercise

jurisdiction. Contrary to Defendant's assertion, this factor
has

"no force"

1364.

compel

in a

case like this.

See McCollum,

144 F.3d at

This matter is before the Court due to a complaint to

arbitration

litigation

would

and

result

therefore

from

18

the

no

protracted

Court's

federal

exercise

of

jurisdiction over the instant complaint. See id. ("The federal

proceeding has only two possible outcomes: an order compelling
arbitration,

or an order refusing to compel arbitration and

dismissing the petition. No piecemeal litigation of the merits

can occur either way, and even if arbitration results, that is
piecemeal litigation that the parties and federal policy have
together

made

mandatory.").

Therefore,

the

fourth

factor

weighs against abstention.
The parties agree that the fifth factor,

applied,

the law to be

weighs against abstention because this action was

brought pursuant to the Federal Arbitration Act. The sixth and
final factor concerns whether the state court can adequately
protect the parties' rights. Jackson-Platts, 727 F.3d at 1143.

Plaintiffs could seek relief in state court by filing a motion
to compel arbitration there. But the mere fact that Plaintiffs
could obtain relief

from the

state court does not

justify

refusing to exercise jurisdiction here. See id (agreeing with
the general observation regarding the adequacy of the state
forum,

but

concluding

that

the

adequate to protect the parties'

fact

that

both

fora

are

rights merely renders this

factor neutral) ; see also Ambrosia Coal & Constr. Co. v. Pages

Morales, 368 F.3d 1320, 1334(11th Cir. 2004)("This factor will
only weigh in favor or against abstention when one of the fora

is inadequate

to protect

a party's

rights.").

Here,

this

factor does not favor abstention because it appears that both

19

fora are adequate.

On balance,

the Colorado River factors clearly do not

weigh in favor of abstention in this case.
H. The Need for Discovery

Defendant
fail,

argues

that,

if

all

of

her other arguments

that she be entitled to conduct discovery prior to the

Court

issuing

a

final

order

for

the

limited

purpose

of

determining the validity of the arbitration agreement. Section
4 of the Federal Arbitration Act calls for "an expeditious and

summary hearing,
issues." Moses H.

4 60 U.S.

1, 23

with only restricted inquiry into factual
Cone Mem'1 Hosp. v. Mercury Constr.

Corp.,

(1983) . Here, Defendant states that discovery

is needed, but does not point to facts that place the making

of

the

agreement

evidence of

in

issue

(e.g.,

fraud or coercion).

blank

signature

line,

Defendant briefly mentions

that depositions would be taken, but does not identify who
would be deposed or what information she hopes to discover
from

them.

Defendant's

Therefore,

request

the

for

Court

discovery

finds

prior

that

to

the

granting

Court's

issuance of a final order in this case would simply frustrate

the "statutory policy of rapid and unobstructed enforcement of
arbitration agreements," Id.

III.

CONCLUSION

Upon the foregoing, Defendant's motion to dismiss (doc.

20

no.

7) is hereby DENIED.

Defendant is ORDERED to submit to

arbitration her currently pending claims against Plaintiffs in
the State Court of Wayne County.

IT

IS

FURTHER ORDERED that the parties

shall jointly

designate and appoint a substitute arbitrator, and inform the
Court of that appointment,

within fourteen (14) days of the

date of this Order. If the parties fail to do so, the Court
shall appoint a substitute arbitrator.
The Clerk is directed to CLOSE this case.

Either party

may move to reopen the case if it becomes necessary.

ORDER ENTERED at Augusta, Georgia, this

<>C/^day of

20 /J"".

Honorable J. Randal Hall
United/ States District Judge
Southern District of Georgia

21