Farrington v. Kindred Nursing Centers East, LLC et al

Filing 10

ORDER granting in part and denying in part 5 Motion to Dismiss. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 4/4/2012. (Edwards, S.)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. S:l1-CV-44B-F

)

DANIEL FARRINGTON as
Administrator of the Estate of the Late )

)

ANNIE G. FARRINGTON,
)

Plaintiff,

v.

)

)
)

ORDER

KINDRED NURSING CENTERS EAST, )
L.L.C., d/b/a SUNNYBROOK HEALTH- )
CARE AND REHABILITATION
)
SPECIALISTS; and KINDRED
)
HEALTHCARE OPERATING, INC.,
)
d/b/a SUNNYBROOK HEALTHCARE )
AND REHABILITATION
)
SPECIALISTS,
)
Defendants.
)
This matter is before the court on motion [DE-S] by the defendants to compel
arbitration and dismiss or, in the alternative, to stay, this action. After the court issued a
show cause order [DE-B], the plaintiff filed a response [DE-9] in opposition to the
defendants' motion. In support of his position, the plaintiff attached the affidavit of the
individual who signed the Alternative Dispute Resolution ("ADR") Agreement in
question.
That individual, the decedent's daughter, Diane Haywood, avers that her mother
never requested or authorized her to sign the ADR document, and that her mother,
Annie G. Farrington, on March 17, 2oo9,"comprehended fully where she was, why she
was there and that she was being admitted to Sunnybrook Healthcare and Rehabilitation
Specialists. There is no reason why my mother could not have signed any necessary
documents for herself." Haywood Affidavit, Attachment to Response [DE-9]. Ms.

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Haywood states that when she signed the ADR form, no one explained to her what she
was signing, and she "never nully agreed to arbitration or any other type of alternative
dispute resolution mechanism."
The court has considered the defendants' motion and memorandum, as well as
the plaintiffs response and supporting affidavit. For the reasons set forth in the
defendants' Memorandum [DE-6], and for purposes of the instant motion [DE-s], the
court determines that the issues raised in the plaintiffs Complaint [DE-I] are subject to
a contract containing an Alternative Dispute Resolution Agreement. See N.C. GEN. STAT.
§ 1-s69.6(a), (b); Exh. 1 to Defendants' Motion [DE-s]. It therefore is ORDERED that

the defendants' Motion to Compel [DE-s.2] is ALLOWED, and this matter is STAYED
pending such arbitration, see N.C. GEN. STAT. § 1-s69.7(g), during which the arbitrator or
mediator conducting the proceedings initially will determine whether the Alternative
Dispute Resolution Agreement at issue is enforceable as against the parties hereto. See
N.C. GEN. STAT. § 1-569.6 (c), (d); § 1-s69.7(a). The defendants' Motion to Dismiss [DE­

5.1] is DENIED.
It further is ORDERED that counsel for the parties shall confer and file herein on

a quarterly basis a written status report on the progress of the alternative dispute
resolution proceedings. The first such report shall be filed on or before June 1, 2012.
The Clerk of Court is DIRECTED to maintain this action on the court's inactive docket.
SO ORDERED. This, the 4th day of April, 2012.

ESC.FOX
J
S ior United States District Judge
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