GGNSC Frankfort, LLC et al v. Moore

Filing 13

MEMORANDUM OPINION & ORDER: 1. Defendant Randell Moore's Motion to Dismiss 7 is DENIED; 2. Petitioner GGNSC's Motion to Compel Arbitration 2 is GRANTED IN PART and DENIED IN PART. The Motion to Compel is denied as to the wrongful death claim asserted by Moore in the underlying state court complaint, but the Motion to Compel is granted in all other respects; 3. Randell Moore, acting as Executor for the Estate of Minnie Moore, is ENJOINED from pursuing his Franklin Circuit Court claims for negligence, medical negligence, and corporate negligence pursuant to KRS § 216.515, KRS § 216.520, and common law; and 4. This action is STRICKEN from the Court's active docket. Signed by Judge Gregory F. VanTatenhove on 6/28/2017. (CBD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
GGNSC FRANKFORT, LLC, et al.,
Plaintiffs,
v.
RANDELL MOORE, AS EXECUTOR OF
THE ESTATE OF MINNIE MOORE,
DECEASED,
Defendant.

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Case No. 3:17-cv-00045-GFVT

MEMORANDUM OPINION
&
ORDER

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GGNSC Frankfort, LLC, a nursing home located in Frankfort, Kentucky, filed suit in this
Court to compel arbitration of certain claims brought in Franklin Circuit Court by Defendant
Randell Moore, executor of the Estate of Minnie Moore. Moore subsequently moved to dismiss
the action. For the reasons that follow, Moore’s motion to dismiss will be DENIED, and
GGNSC’s motion to compel arbitration will be GRANTED IN PART and DENIED IN PART.
Only Moore’s wrongful death claim will be allowed to proceed in state court.
I
Minnie Moore was admitted to Golden LivingCenter – Frankfort, a nursing home
operated by GGNSC Frankfort, LLC, for a period of time in 2009 and again in 2014. Being of
unsound mind and in need of assistance, Minnie Moore executed a durable Power of Attorney
document entitled “Power of Attorney, General” in 2008, authorizing her son Randell Moore to
act on her behalf in a variety of ways. [See R. 1-4.] Randell Moore, as Minnie’s Power of

Attorney, signed the paperwork needed to admit Minnie to the Golden LivingCenter in both
2009 and 2014. Both times, the Golden LivingCenter admissions paperwork included an
arbitration agreement. [R. 1-2; R. 1-3.]
The 2014 agreement, entitled “Alternative Dispute Resolution Agreement,” is at issue in
this case. The arbitration agreement notes at the very beginning that signing the agreement is not
a condition of admission to the nursing home, and the agreement goes on to explain that any
signatories are “selecting a method of resolving disputes without resorting to lawsuits or the
courts, and that by entering into this agreement, they are giving up their constitutional right to
have their disputes decided in a court of law . . . .” [R. 1-3 at 2.] The final page of the agreement
presents two options: a place to sign to accept the arbitration agreement, or a place to sign if
alternative dispute resolution is declined. [Id. at 8.] On August 8, 2014, Randell Moore, acting
as Minnie Moore’s general Power of Attorney, signed to accept the arbitration agreement. [Id.]
A number of years later, Randell Moore filed suit in Franklin Circuit Court against
GGNSC, this time acting as the executor of Minnie Moore’s estate. Moore’s complaint sets
forth claims for negligence, medical negligence, corporate negligence, and wrongful death, all
stemming from Minnie Moore’s alleged accelerated health deterioration and eventual death at
Golden LivingCenter. [R. 1-1.] GGNSC subsequently filed a lawsuit in this Court, asking the
Court to compel arbitration and enjoin the Franklin Circuit Court proceeding in light of the 2014
arbitration agreement entered into by Moore. [R. 1; R. 2.] Moore responded to GGNSC’s
motion to compel arbitration with a motion to dismiss. [R. 7.] The Court now considers both
parties’ arguments.

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II
A
As a preliminary matter, the Court must resolve a number of jurisdictional issues set forth
in Moore’s motion to dismiss. See, e.g., Douglas v. E.G. Baldwin & Associates, 150 F.3d 604,
607 (6th Cir. 1998) (“The first and fundamental question presented by every case brought to the
federal court is whether it has jurisdiction to hear a case.”). Moore claims the Court does not
have adequate diversity jurisdiction over this dispute because certain parties in the underlying
state court case are Kentucky citizens. [R. 8 at 4.] Moore argues GGNSC failed to join a
number of necessary and indispensable parties to this federal action under Federal Rule of Civil
Procedure 19. [Id. at 4-5.] And Moore also contends that, even if the Court does have sufficient
diversity jurisdiction, it should abstain in this case pursuant to the Colorado River doctrine. [Id.
at 5-6.] All of these arguments have been rejected by other Eastern District of Kentucky courts,
and the arguments are similarly meritless in this case.
First, the Court has adequate subject-matter jurisdiction over the matter. The Federal
Arbitration Act (“FAA”) does not provide an independent basis for federal jurisdiction. 9 U.S.C.
§ 4; Vaden v. Discover Bank, 556 U.S. 49, 59 (2009). Instead, petitioners seeking to compel
arbitration under the FAA must assert an independent source of subject matter jurisdiction.
GGNSC has invoked the Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332, maintaining
all of the plaintiffs are citizens of states besides Kentucky, the defendant is a citizen of Kentucky,
and the amount in controversy exceeds $75,000. [R. 1.] While complete diversity of citizenship
exists on the face of GGNSC’s federal complaint, Moore contends the action is actually nondiverse, because named defendants in the state court action are Kentucky citizens. But this
argument, which asks the Court to “look through” the federal action to the underlying state
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complaint, has been consistently rejected by the judiciary. See, e.g., GGNSC Stanford, LLC v.
Gilliam, 205 F. Supp. 3d 884, 888 (E.D. Ky. 2016) (compiling cases); see also Preferred Care,
Inc. v. Howell, 187 F. Supp. 3d 796, 803-04 (E.D. Ky. 2016). The action is clearly sufficiently
diverse under § 1332.
As for Moore’s assertion that the state court, non-corporate defendants from Kentucky
are necessary and indispensable parties, a number of federal courts have already explained why
that is not the case. Because the non-corporate defendants would destroy diversity, the Court
looks to Federal Rule of Civil Procedure 19(b), which requires it to consider whether “in equity
and good conscience, the action should proceed among the existing parties or should be
dismissed.” Fed. R. Civ. P. 19(b). To make this determination, the Court considers:
(1) the extent to which a judgment rendered in the person's absence might
prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person's absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were
dismissed for nonjoinder.
Id.
Moore does not articulate why the Rule 19 factors require the action to be dismissed
beyond alluding to the notion that only “incomplete justice” would be served in the absence of
the non-corporate defendants. [See R. 8 at 4.] In light of Moore’s complete lack of
argumentation, the Court, like others, finds yjsy Rule 19 does not require dismissal of the action.
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Sixth Circuit law makes clear that joint tortfeasors are not indispensable parties to an action to
compel arbitration under the FAA, even if those parties were joined at the state level.
PaineWebber, Inc. v. Cohen, 276 F.3d 197, 206 (6th Cir. 2001); see also Howell, 187 F. Supp.
3d at 204-05 (analyzing PaineWebber). Any risk of piecemeal litigation or “incomplete justice”
suffered by Moore here is, in reality, “a result of [Moore’s] decision to file suit in state court
rather than demanding arbitration under the Agreement.” Gilliam, 205 F. Supp. 3d at 889. Rule
19 does not provide Moore with a basis for relief.
In addition, Moore argues that even if this Court does enjoy diversity jurisdiction, it
should abstain from that jurisdiction pursuant to the Colorado River doctrine. See Colorado
River Water Conservation District, et al. v. United States, 424 U.S. 800 (1976). Federal courts
have a “virtually unflagging obligation” to exercise the jurisdiction given to them. Id. at 818.
Nevertheless, in Colorado River, the Supreme Court held that federal courts may refuse to
exercise jurisdiction in favor of a parallel state court action, so long as certain “exceptional
circumstances” are present. Id.; see also PaineWebber, 276 F.3d at 206. In light of Colorado
River and its progeny, the Sixth Circuit has articulated eight factors for courts to consider when
deciding whether to abstain from exercising jurisdiction due to the concurrent jurisdiction of a
state court. These factors are: (1) whether the state court has assumed jurisdiction over any res
or property; (2) whether the federal forum is less convenient to the parties; (3) avoidance of
piecemeal litigation; (4) the order in which jurisdiction was obtained; (5) whether the source of
governing law is state or federal; (6) the adequacy of the state court action to protect the federal
plaintiff's rights; (7) the relative progress of the state and federal proceedings; and (8) the
presence or absence of concurrent jurisdiction. See PaineWebber, 276 F.3d at 206.

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In this case, most factors weigh against abstention. The first and second factors weigh
against abstention because the record does not suggest the state court has assumed jurisdiction
over any res, and the federal forum is equally as convenient for the parties—indeed, the two
forums are but two city blocks away from one another. The third factor weighs against
abstention, because while the avoidance of piecemeal litigation is ordinarily a legitimate concern
under the Colorado River doctrine, “the relevant federal law requires piecemeal resolution when
necessary to give effect to an arbitration agreement.” Moses H. Cone Memorial Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 20 (1983) (emphasis in original); see also PaineWebber, 276
F.3d at 207 (explaining that “the desire to avoid litigating a single issue in multiple forums is
insufficient to overcome the strong federal policy supporting arbitration”). And the fifth factor,
which concerns the source of the governing law, also weighs against abstention, because the
FAA, a federal law, is the basis of interpreting the arbitration agreement. See PaineWebber, 276
F.3d at 208-09. “[T]he presence of federal law issues must always be a major consideration
weighing against surrender of federal jurisdiction in deference to state proceedings.” Howell,
187 F. Supp. 3d at 806; Gilliam 205 F. Supp. 3d at 891.
The fourth factor and seventh factors are neutral at best. While the action was initially
filed in Franklin Circuit Court and that action has technically proceeded further than the present
one [see R. 2-2 (indicating at least a first set of interrogatories and requests for production of
documents have been propounded by Moore)], neither the state case nor the federal one have
progressed significantly. See Howell, 187 F. Supp. 3d at 806.
Finally, the sixth factor and the eighth factor somewhat favor abstention. There is no
reason to believe that the state forum will not adequately protect GGNSC’s rights, particularly
because the FAA is binding on state courts. PaineWebber, 276 F.3d at 208; see also Kindred
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Nursing Centers L.P. v. Clark, ___ U.S. ___, 137 S. Ct. 1421 (2017) (clarifying how Kentucky
state courts should interpret the FAA). And while federal courts are more likely to abstain under
Colorado River where concurrent jurisdiction exists, the Sixth Circuit has also clarified that
concurrent jurisdiction is “insufficient to justify abstention . . . where a congressional act
provides the governing law and expresses a preference for federal litigation.” PaineWebber, 276
F.3d at 208. The FAA expresses this type of preference. See Howell, 187 F. Supp. 3d at 807
(citing Moses H. Cone, 460 U.S. at 255 n. 32). Thus, to the extent the eighth factor weighs in
favor of abstention, it does so only slightly.
In sum, the Colorado River doctrine neither counsels nor requires abstention in this case.
While some factors may slightly favor abstaining, this case is not the rare one where there are
“exceptional circumstances” and “the clearest of justifications” to support surrendering federal
jurisdiction. Moses H. Cone, 460 U.S. at 25-26. See also Howell, 187 F. Supp. 3d at 805-07
(declining to abstain under Colorado River in an analogous case); Gilliam, 205 F. Supp. 3d at
890-91 (same); Lowry, 213 F. Supp. 3d at 865-67 (same).
B
Jurisdictional issues resolved, the Court turns to Moore’s legal arguments in support of
dismissal. Moore argues that the arbitration agreement in question is not enforceable under the
FAA; that the Power of Attorney provided insufficient authority for Moore to enter into a
binding arbitration agreement; and that the arbitration agreement is unconscionable. Just like the
jurisdictional issues, all of Moore’s arguments in favor of dismissal have previously been found
unavailing by other courts. The arguments are similarly unavailing here.
To the extent Moore maintains the FAA does not apply to the arbitration agreement
because the agreement does not relate to a transaction involving interstate commerce [see R. 8 at
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7], this contention has been flatly rejected. The FAA indisputably applies to arbitration
agreements executed in connection with nursing home admission. See, e.g., Diversicare of
Nicholasville, LLC v. Lowry, 213 F. Supp. 3d 859, 867-78 (E.D. Ky. 2016); Howell, 187 F.
Supp. 3d at 809-10; Gilliam, 205 F. Supp. 3d at 894. Moore offers no explanation for why the
Court should depart from seemingly clear precedent on this point, and the Court thus deems the
arbitration agreement in question sufficiently covered by the FAA.
Moore next contends the written Power of Attorney designating him as Minnie Moore’s
attorney in fact encompasses insufficient authority for the execution of the arbitration agreement
in question. [R. 8 at 7.] But this is baseless in light of the language contained in the Power of
Attorney document and prior case law. The Power of Attorney gives Randell Moore the
authority to “manage and conduct all of [Minnie Moore’s] affairs and to exercise all of [her]
legal rights and powers, including all rights and powers that [she] may acquire in the future.” [R.
1-4 at 2.] The Power of Attorney also gives Moore the authority to “enter into binding contracts”
on Minnie Moore’s behalf and to “take any and all legal steps necessary to collect any amount or
debt owed . . . or to settle any claim . . . whether made against [Ms. Moore] or asserted on [her]
behalf against any other person or entity.” [Id.] Federal courts in Kentucky routinely find that
this kind of Power of Attorney language sufficiently encompasses the signing of binding
arbitration agreements. See Gilliam, 205 F. Supp. 3d at 892 (noting the authority to “make and
sign any and all contracts” encompasses arbitration agreements); Lowry, 213 F. Supp. 3d at 869
(explaining the authority to “enter into binding contracts” on someone’s behalf includes the
authority to enter into an arbitration agreement).
Moreover, the arbitration agreement entered into by Moore is not unenforceable as
unconscionable. Moore complains the agreement was “part of a mass-produced, boiler-plate,
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pre-printed document, likely presented to the Defendant within a lengthy stack of admissions
paperwork.” [R. 8 at 9.] This might be true, but it ultimately proves immaterial. Kentucky
courts consider the doctrine of unconscionability to be a narrow exception to the rule that duly
executed written agreements, absent fraud, are enforced according to their terms. See Conseco
Finance Servicing Corp. v. Wilder, 47 S.W.3d 335, 341 (Ky. Ct. App. 2001). Unconscionability
arguments are best “directed against one-sided, oppressive, and unfairly surprising contracts, and
not against the consequences per se of uneven bargaining power or even a simple old-fashioned
bad bargain.” Id. Moore cannot succeed on an unconscionability argument by merely
complaining the document was pre-printed and, as such, purportedly confusing. Moore must
instead demonstrate that the agreement was “one which no man in his senses, not under delusion,
would make, on the one hand, and which no fair and honest man would accept, on the other.” Id.
(internal quotation marks omitted); see also Howell, 187 F. Supp. 3d at 810. Moore has not
carried this burden, and his unconscionability argument fails.
C
In the end, not a single argument presented by Moore in support of his motion to dismiss
succeeds, and the motion to dismiss must be denied. As a result, the Court considers the motion
to compel arbitration filed by GGNSC. When analyzing a motion to compel, the Court considers
four issues: (1) whether the parties agreed to arbitrate; (2) the scope of the arbitration agreement
at issue; (3) if federal statutory claims are asserted, whether Congress intended those claims to be
nonarbitrable; and (4) if some, but not all, of the claims are subject to arbitration, whether to stay
the remainder of the proceedings pending arbitration. See, e.g., Stout v. J.D. Byrider, 228 F.3d
709, 714 (6th Cir. 2000). Only two of the four factors are at issue in Moore’s case. The Court’s
discussion above regarding Moore’s motion to dismiss demonstrates that the parties did, indeed,
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agree to enter a binding arbitration agreement. And the third factor regarding federal statutory
claims is irrelevant, because Moore asserts no such claims. [See R. 1-1.] The Court, then,
considers the scope of the arbitration agreement and whether any nonarbitrable claims should be
stayed pending arbitration.
GGNSC has asked the Court to stay the action in Franklin Circuit Court in its entirety
pending arbitration of Moore’s claims and to enjoin Moore from pursuing any further claims in
the state action. [See R. 2-1 at 1-2, 12 n. 4 (contending the arbitration agreement, “by its very
language, plainly encompasses all of Respondent’s claims in the State Court Action”).] Despite
GGNSC’s confidence that all of Moore’s claims fall within the scope of the arbitration
agreement, the Court finds this is not entirely the case.
Moore’s complaint states claims both “on behalf of Minnie Moore, deceased,” and “on
behalf of the Estate of Minnie Moore.” [R. 1-1 at 4.] While the arbitration agreement
encompasses the claims brought on behalf of Minnie Moore herself, the agreement does not
encompass claims brought by a party besides Minnie Moore—in this case, the Estate.
The arbitration agreement itself defines covered legal disputes as follows:
This Agreement applies to any and all disputes arising out of or in any way
relating to this Agreement or to the Resident’s stay at the Facility or the
Admissions Agreement between the Parties that would constitute a legally
cognizable cause of action in a court of law sitting in the state where Facility is
located. Covered Disputes include but are not limited to all claims in law or
equity arising from one Party’s failure to satisfy a financial obligation to the other
Party; a violation of a right claimed to exist under federal, state, or local law or
contractual agreement between the Parties; tort; breach of contract; consumer
protection; fraud; misrepresentation; negligence; gross negligence; malpractice;
and any alleged departure from any applicable federal state, or local medical,
health care, consumer, or safety standards.

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[R. 1-3 at 4.] This language clearly applies to the tort claims brought on behalf of Minnie Moore
herself under KRS §§ 216.515 and 216.520 for negligence, medical negligence, and corporate
negligence. [See R. 1-1.]
But Moore’s complaint also states a wrongful death claim. [Id. at 25.] Under Kentucky
law, “[w]henever the death of a person results from an injury inflicted by the negligence or
wrongful act of another,” a representative of the decedent can bring a claim to recover damages
against the person or agent who caused the death. See KRS § 411.130(1). A wrongful death
claim “is not derived through or on behalf of the resident, but accrues separately to the wrongful
death beneficiaries and is meant to compensate them for their own pecuniary loss.” Ping v.
Beverly Enters., Inc., 376 S.W.3d 581, 597-99 (Ky. 2012). In other words, a wrongful death
claim is one brought not on behalf of Minnie Moore herself, but on behalf of her Estate. 1
The only parties to the arbitration agreement in this case are GGNSC and Minnie Moore,
because Randell Moore was signing only on Minnie’s behalf as her Power of Attorney and not
on behalf of her future Estate. See Richmond Health Facilities v. Nichols, 811 F.3d 192, 197
(6th Cir. 2016). “[A] decedent (or a representative thereof) has no authority to bind wrongful
death beneficiaries to an arbitration agreement.” Lowry, 213 F. Supp. 3d at 869; see also
Howell, 187 F. Supp. 3d at 808. Accordingly, the binding arbitration agreement does not
encompass the wrongful death claim.
As for the state court claims that fall within the scope of the arbitration agreement, the
Court will enjoin Moore from further litigating those claims in Franklin Circuit Court. See Great

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For a detailed explanation of why Ping is not preempted by the FAA, see Richmond Health Facilities v.
Nichols, 811 F.3d 192, 197-203 (6th Cir. 2016), and Judge Thapar’s discussion in Howell, 187 F. Supp.
3d at 808.

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Earth Co., Inc. v. Simons, 288 F.3d 878, 893-94 (6th Cir. 2002) (explaining the Court’s authority
to do so pursuant to the Anti-Injunction act, 28 U.S.C. § 2283); see also Gilliam, 205 F. Supp. 3d
at 895. But as for the wrongful death claim, the Court will deny the motion to compel and allow
Moore to proceed with that claim in Franklin Circuit Court. To the extent either party wishes to
stay litigation of the wrongful death claim pending the arbitration of the other issues, see Stout,
228 F.3d at 714, the parties may request such relief at the state court level. While the Court will
exercise its authority under the Anti-Injunction Act to enjoin Moore from pursuing most of his
claims, the Court will not opine at this juncture on whether the wrongful death claim should be
stayed in state court, particularly when neither party has weighed in on the issue.
III
In conclusion, Moore’s motion to dismiss sets forth no legal or equitable basis for relief.
GGNSC’s motion to compel arbitration, however, is properly granted to the extent the agreement
actually encompasses the claims set forth in Moore’s Franklin Circuit Court complaint.
Accordingly, the Court hereby ORDERS as follows:
1. Defendant Randell Moore’s Motion to Dismiss [R. 7] is DENIED;
2. Petitioner GGNSC’s Motion to Compel Arbitration [R. 2] is GRANTED IN PART
and DENIED IN PART. The Motion to Compel is denied as to the wrongful death claim
asserted by Moore in the underlying state court complaint, but the Motion to Compel is granted
in all other respects;
3. Randell Moore, acting as Executor for the Estate of Minnie Moore, is ENJOINED
from pursuing his Franklin Circuit Court claims for negligence, medical negligence, and
corporate negligence pursuant to KRS § 216.515, KRS § 216.520, and common law; and
4. This action is STRICKEN from the Court’s active docket.
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This the 28th day of June, 2017.

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