CLOUSER v. GOLDEN GATE NATIONAL SENIOR CARE, LLC et al

Filing 95

MEMORANDUM OPINION AND ORDER granting 86 Motion for Reconsideration. Accordingly, Plaintiff's wrongful death claim before this Court is hereby STAYED pending the arbitration of her survival claim, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 10/10/2017. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SYLVIA A. CLOUSER,

)

Plaintiff,

)

)
)

v.

CIVIL ACTION NO. 3:15-33
JUDGE KIM R. GIBSON

)
)

GOLDEN GATE NATIONAL SENIOR
CARE, LLC, et al.,

)
)
)

)

Defendants.

MEMORANDUM OPINION
I.

Introduction
Before the Court is Defendants' Motion for Reconsideration of Order Denying

Defendants' Motion to Stay Trial of Wrongful Death Claim. (ECF No. 86.) The motion has been
fully briefed (see ECF Nos. 8, 89, 92) and is ripe for disposition. For the reasons stated below,
Defendants' motion will be GRANTED.
II.

Jurisdiction
The Court has jurisdiction over the instant action pursuant to 28 U.S.C. § 1332 and 28

U.S.C. § 1441. Venue is proper pursuant to 28 U.S.C. § 1391.
III.

Background
Plaintiff initiated this action by filing a complaint in the Court of Common Pleas of Blair

County, Pennsylvania, on January 12, 2015. (See ECF No. 1-2.) Defendants removed the case to
this Court on February 5, 2015. (ECF No. 1.)

Plaintiff sued Defendants individually and on behalf of her late husband's estate. 1 Plaintiff
brought two claims against Defendants. In Count I of her complaint, Plaintiff asserted a wrongful
death claim. (ECF No. 1-2 at 'Il'Il 7-8.) In Count II of her complaint, Plaintiff asserted a survival
claim. (Id. at 'Il<JI 40-42.) Plaintiff sought punitive damages for both claims. (Id. at 12-14.)
In response to Plaintiff's action, Defendants filed an Amended Motion to Dismiss for
Failure to State a Claim and a Motion to Compel Arbitration. (ECF No. 40.) This Court granted in
part and denied in part Defendants' motion as follows: (1) this Court denied Defendants' Motion
to Compel Arbitration of the wrongful death claim (Count I); this Court granted Defendants'
Motion to Compel Arbitration of the survival claim (Count II); this Court granted Defendants'
Motion to Dismiss Plaintiff's claim for punitive damages as to the wrongful death claim (Count
I); and (4) this Court denied Defendants' Motion to Dismiss Plaintiff's claim for punitive damages
as to the survival action (Count II). See Clouser v. Golden Gate Nat'l Senior Care, LLC, No. CV 3:1533, 2016 WL 1179214, at *10 (W.D. Pa. 2016).
After this Court denied Defendants' Motion to Compel Arbitration for the wrongful death
claim, Defendants filed a Motion to Stay the Trial of the Wrongful Death Claim. (ECF No. 56),
which this Court denied. See Clouser v. Golden Gate Nat'l Senior Care, LLC, No. CV 3:15-33, 2016
WL 4254268 (W.D. Pa. 2016). Defendants now ask this Court to reconsider its denial of
Defendants' Motion to Stay.

Because this Court has repeatedly discussed the underlying facts in this case, it will not restate them here.
See Clouser v. Golden Gate Nat'[ Senior Care, LLC, No. CV 3:15-33, 2016 WL 1179214 (W.D. Pa. 2016); Clouser
v. Golden Gate Nat'[ Senior Care, LLC, No. CV 3:15-33, 2016 WL 4223755 (W.D. Pa. 2016); Clouser v. Golden
Gate Nat'/ Senior Care, LLC, No. CV 3:15-33, 2016 WL 4254268 (W.D. Pa. 2016).
1

2

IV.

Legal Standard
"Because federal courts have a strong interest in the finality of judgments, motions for

reconsideration should be granted sparingly." Williams v. Baker, No. 15CV0402, 2017 WL 1367374,
at *1 (W.D. Pa. 2017) (internal citations omitted); Milton v. United States Bureau of Prisons, No. 1:13CV-02673, 2017 WL 4012610, at *1 (M.D. Pa. 2017) (same) (internal citations omitted); Taggart v.

United States Dep't of Justice, No. 16-CV-04040, 2017 WL 1862324, at *4 (E.D. Pa. 2017) (same)
(internal citations omitted).
Motions for reconsideration afford courts the opportunity to remedy their own alleged
errors; they "are not designed to provide litigants with a second bite at the apple." U.S. ex rel.

Emanuele v. Medicor Assocs., No. CV 10-245, 2017 WL 3675921, at *6 (W.D. Pa. 2017) (internal
citations omitted); Langston v. Hershey Med. Ctr., No. 1:15-CV-2027, 2016 WL 6780702, at *2 (M.D.
Pa. 2016) ("A reconsideration motion should not be used to try to get a 'second bite at the apple."')
(internal citations omitted); Taksir v. Vanguard Grp., Inc., No. CV 16-5713, 2017 WL 3443497, at *2
(E.D. Pa. 2017) ("Reconsideration is not permitted simply to allow a 'second bite at the apple."')
(internal citations omitted).
A court may grant a motion for reconsideration if the moving party shows: "(1) an
intervening change in controlling law; (2) the availability of new evidence; or (3) the need to
correct clear error of law or prevent manifest injustice." United States v. Banks, 674 F. App'x 121,
124 (3d Cir. 2017), quoting Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010); DeForte v. Blocker,
No. 2:16-CV-113, 2017 WL 1862213, at *2 (W.D. Pa. 2017) (same) (internal citations omitted);

Hudson v. Dist. Attorney Ed Marsico Dauphin Cty., No. 1:16-CV-0640, 2017 WL 3868518, at *2 (M.D.

3

Pa. 2017) (same) (internal citations omitted); Cave v. Saxon Mortg. Servs., Inc., No. CV 11-4586, 2017
WL 511629, at *1 (E.D. Pa. 2017) (internal citations omitted).

V.

Discussion
A. This Court's Initial Denial of Defendants' Motion to Stay the Wrongful Death Claim
As noted above, this Court previously denied Defendants' Motion to Stay Plaintiff's

wrongful death claim. To reach this decision, this Court "consider[ed] the following factors: (1)
whether a stay would unduly prejudice or present a clear tactical disadvantage to the non-moving
party; (2) whether denial of the stay would create a clear case of hardship or inequity for the
moving party; (3) whether a stay would simplify the issues and the trial of the case; and (4)
whether discovery is complete and whether a trial date has been set." Clouser, 2016 WL 4254268
at 2, citing Akishev v. Kapustin, 23 F. Supp. 3d 440, 446 (D. N.J. 2014). This Court also considered
(5) the length of the requested stay. Clouser, 2016 WL 4254268 at 7, citing Structural Group, Inc. v.

Liberty Mut. Ins. Co., No. 1:07-CV-1793, 2008 WL 4616843 (M.D. Pa. 2008).
After applying the above-mentioned balancing test, this Court found that only one of the
five factors- "hardship or inequity for the moving party" -weighed in favor of granting a stay.

See Clouser, 2016 WL 4254268 at 6. The Court concluded by stating that:
In sum, because only one factor weighs in favor of a stay, the totality of the circumstances
weighs in favor of denying Defendants' motion for a stay. Thus, having examined "the
circumstances of the particular case," Nken, 556 U.S. at 433, the Court finds in its discretion
that a stay of this action pending resolution of the arbitration of Plaintiff's survival claim
would be, on balance, inappropriate. The Court will therefore deny Defendants' request
for a stay.

4

Id. at 8.
As a result of this Court's denial of Defendants' motion, Defendants were required to
litigate Plaintiff's wrongful death claim before this Court while simultaneously arbitrating
Plaintiff's survival claim pursuant to the arbitration agreement signed by Plaintiff's deceased
husband.

B. Defendants' Instant Request that this Court Reconsider Its Denial of Defendants'
Motion to Stay the Wrongful Death Claim
Defendants now ask this Court to reconsider its denial of Defendants' Motion to Stay
Plaintiff's wrongful death claim. Defendants note that after this Court denied Defendants' motion
to stay, the Pennsylvania Supreme Court decided Taylor v. Extendicare Health Facilities, Inc., 147
A.3d 490, 493 (Pa. 2016), cert. denied, 137 S. Ct. 1375, 197 L. Ed. 2d 555 (2017). Defendants assert
that in Taylor, the Supreme Court of Pennsylvania held that when a Plaintiff brings both a survival
claim and a wrongful death claim against nursing home defendants, the wrongful death claim
must be stayed until the arbitration claim is resolved through arbitration. (ECF No. 68 at 4.)
According to Defendants, Taylor constitutes an "intervening change in the controlling law" that
requires this Court, sitting in diversity, to stay Plaintiff's wrongful death claim.
In response, Plaintiff argues that Taylor did not change the controlling law. (ECF No. 89 at
4.) Specifically, Plaintiff asserts that Defendants mischaracterize the holding of Taylor, and
emphasizes that the passage that Defendants rely on is located in a footnote rather than in the
main body of the opinion. (ECF No. 89 at 2-4.) This Court will address these arguments below.
"Our role in diversity cases is to apply state law as announced by the state's highest court."

LaBarre v. Bristol-Myers Squibb Co., 544 F. App'x 120, 125 (3d Cir. 2013), citing Sheridan v. NGK

5

Metals Corp., 609 F.3d 239, 253 (3d Cir. 2010) ("A federal court under Erie is bound to follow state
law as announced by the highest state court") (internal citations omitted).
"In the absence of a controlling decision by the Pennsylvania Supreme Court, we must
predict how it would decide the questions of law presented in this case." Wolfe v. Allstate Prop. &

Cas. Ins. Co., 790 F.3d 487, 492 (3d Cir. 2015) citing Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 4546 (3d Cir. 2009); Leonard v. Tractor Supply Co., 88 F. Supp. 3d 459, 461 (W.D. Pa. 2015) (same); Frey

v. Grumbine's RV, No. 1:10-CV-1457, 2011 WL 685823, at *3 (M.D. Pa. 2011); Smith v. Howmedica
Osteonics Corp., No. CV 17-1174, 2017 WL 1508992, at *3 (E.D. Pa. 2017) (same).
"[A] federal court attempting to forecast state law must consider relevant state precedents,
analogous decisions, considered dicta, scholarly works, and any other reliable data tending
convincingly to show how the highest court in the state would decide the issue at hand." Smith,
2017 WL 1508992 at *3, citing McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 663 (3d Cir. 1980); see

Micjan v. Wal-Mart Stores, Inc., No. CV 14-855, 2016 WL 4141085, at *6 (W.D. Pa. 2016) (quoting
McKenna, 622 F.2d at 633); Duncan v. St. Paul Fire & Marine Ins. Co., 129 F. Supp. 2d 736, 742 (M.D.
Pa. 2001) (same); Wagner v. Kimberly-Clark Corp., 225 F. Supp. 3d 311, 315 (E.D. Pa. 2016) (same).
This Court agrees with Plaintiff that Taylor's central holding does not concern whether a
wrongful death claim must be stayed pending arbitration of the survival claim; Taylor's main
holding is that the Federal Arbitration Act ("FAA") preempts Pennsylvania Rule of Civil
Procedure ("PRCP") 213(e), which had required that survival actions and wrongful death actions
be consolidated. Taylor, 147 A.3d at 500. Taylor holds that, as a matter of law, a survival claim and
a wrongful death claim must be bifurcated when doing so will give effect to an arbitration
agreement that governs the survival claim. Id. at 507. See also Simmons v. Simpson House, Inc., No.
6

CV 15-06636, 2017 WL 1376566, at *7 (E.D. Pa. 2017) (applying Taylor and bifurcating survival and
wrongful death claims); Personacare of Reading, Inc. v. Lengel, No. CV 16-1965, 2017 WL 2772706,
at *3 (E.D. Pa. 2017) (same).
However, this does not end the inquiry. In the absence of a clear holding from the
Pennsylvania Supreme Court, this Court must "predict how [the Pennsylvania Supreme Court]
would decide the questions of law presented in this case." Wolfe, 790 F.3d at 492. In making this
prediction, this Court must consult any "reliable data tending convincingly to show how the
highest court in the state would decide the issue at hand." Smith, 2017 WL 1508992 at *3.
This Court need not look far for "reliable data tending to convincingly show" how the
Pennsylvania Supreme Court would decide the pending motion. This Court agrees with
Defendants that Taylor provides a convincing basis leading this Court to stay Plaintiff's wrongful
death claim. While Taylor's central holding was that the FAA preempted PRCP 213(e), the
Pennsylvania Supreme Court addressed the issue of whether a wrongful death claim must be
stayed while a survival claim is arbitrated pursuant to an arbitration agreement. Specifically, the
Pennsylvania Supreme Court stated:
... once an issue has been referred to arbitration, any judicial proceeding involving that
issue is stayed pending the outcome of arbitration. 42 Pa.CS. § 7304(d). Therefore, the

survival claim arbitration will be resolved before the wrongful death action can
proceed in the court of common pleas. Thus, the court hearing the wrongful death action
may account for any damages awarded in the survival arbitration and "avoid duplicate
recovery" as required by Subsection 8301(a).

7

Id. at 510 (emphasis added). As this passage indicates, according to Pennsylvania's highest court,
a wrongful death action is to be stayed while a survival action is arbitrated. Moreover, the court's
assertion that duplicate damages will be avoided because the court hearing the wrongful death
claim will account for any damages imposed in the survival action necessitates that the survival
claim be resolved first, which in tum requires that the wrongful death action be stayed pending
arbitration of the survival claim. 2
To support her argument that Taylor's statements about staying the wrongful death claim
are not substantive law, Plaintiff emphasizes that the passage cited by Defendants appears in a
footnote. (See ECF No. 89 at 2-4.) This Court is unpersuaded by this argument. Initially, whether
or not the passage appears in a footnote, it is "reliable data" about how the Pennsylvania Supreme
Court would likely decide the pending motion. Moreover, the fact that the Pennsylvania Supreme
Court briefly referenced the stay in a footnote, and discussed the stay unequivocally and without
much explanation, emphasizes the strength of the court's assumption that the wrongful death
action would be stayed.
Plaintiff next argues that this Court should deny Defendants' motion to stay because

Taylor affirmed the Pennsylvania Superior Court's holding that "an arbitration agreement signed
by the decedent or his or her authorized representative is not binding upon non-signatory
wrongful death beneficiaries, and they cannot be compelled to litigate their claims in arbitration."
(ECF No. 89 at 3) (citing Taylor, 147 A.3d at 496, quoting Taylor v. Extendicare Health Facilities, Inc.,

This Court notes that it could not find a single decision since Taylor that squarely addresses whether Taylor
mandates a stay of a wrongful death claim pending arbitration of a survival claim. However, in the one
case that this Court located that discussed the issue, the District Court stayed the state court wrongful death
claim pending arbitration of the survival claim. See Personacare of Reading, Inc. v. Lengel, No. CV 16-1965,
2017 WL 2772706 (E.D. Pa. 2017).
2

8

113 A.3d 317 (Pa. Super. 2015).) This Court rejects Plaintiff's argument. Contrary to Plaintiff's
assertion, staying a wrongful death claim brought by a non-signatory is not analogous to
compelling that non-signatory to submit his or her claim to arbitration. Moreover, while the
preclusive effects of an arbitration decision regarding a survival claim on a wrongful death claim
are uncertain,3 that question is not presently before this Court.
Finally, Plaintiff argues that the footnote cited by Defendants is not "part of the Opinion"
because in the footnote the majority was merely responding to the dissent. (ECF No. 89 at 3-4.)
Specifically, Plaintiff notes that the footnote states "this novel interpretation of Subsection 8301(a)

3

Pennsylvania courts have not clearly addressed the question of whether arbitration of a survival claim
would have a preclusive effect on a wrongful death claim being litigated in court. In Taylor, the
Pennsylvania Supreme Court acknowledged that this issue is unresolved:
In its decision that Rule 213(e) barred bifurcation, the Superior Court expressed concern for the
wrongful death beneficiaries' constitutional right to a jury trial. We share the Superior Court's
concern, which appears to derive from the potential preclusive effect of arbitration upon the
wrongful death beneficiaries in the judicial proceedings, through application of the doctrine of
collateral estoppel. However, the preclusive effect of an arbitration award upon judicial
proceedings is not presently before this Court. Moreover, although the appellate courts of the
Commonwealth have held that "a judicially confirmed private arbitration award will have
collateral estoppel effect, even in favor of non-parties to the arbitration, if the arbitrator actually
and necessarily decided the issue sought to be foreclosed and the party against whom estoppel is
invoked had full incentive and opportunity to litigate the matter," Frog, Switch & Mfg. Co. v. Pa.
Human Relations Comm 'n, 885 A.2d 655, 661 (Pa. Cmwlth. 2005), we have not addressed this
question. Notably, when the United States Supreme Court considered whether courts should
resolve arbitrable pendent claims when a non-arbitrable claim is before it, in order to avoid the
possible collateral estoppel effect of the arbitration proceeding in a subsequent court proceeding,
the Court acknowledged that the preclusive effect of arbitration proceedings in such circumstances
was not well-settled. Dean Witter, 470 U.S. at 222, 105 S.Ct. 1238 (observing that "[t]he full-faithand-credit statute requires that federal courts give the same preclusive effect to a State's judicial
proceedings as would the courts of the State rendering the judgment, and since arbitration is not a
judicial proceeding, ... the statute does not apply to arbitration awards"); see McDonald v. W. Branch,
466 U.S. 284, 287-88, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984) (refusing to accord an arbitration ruling
collateral estoppel effect because "arbitral factfinding is generally not equivalent to judicial
factfinding"); Barrentine v. Ark.-Best Freight Sys., 450 U.S. 728, 101S.Ct.1437, 67 L.Ed.2d 641 (1981).
Thus, the preclusive effect of arbitration in judicial proceedings is uncertain.

Taylor, 147 A.3d at 511-12.
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has not been advanced by the parties in this case, is beyond the scope of our review, and is not
before us." Taylor, 147 A.3d at 510. However, in this passage, the majority is responding to the
dissent' s concern that bifurcating the survival and wrongful death claims will violate 42 Pa. C.S.A

§ 8301 by allowing duplicate recovery. Id. Thus, contrary to Plaintiff's assertion, the majority does
not conclude that the question of a stay is not before the court, but rather that the question of
duplicative recovery is not before the court. See Id. Moreover, in the next paragraph of the same
footnote, the Court explains that duplicate recovery will be avoided because the wrongful death
claim will be stayed while the survival claim proceeds to arbitration. Id. Plaintiff fails to recognize
that the fact that the majority was responding to the dissent when it discussed staying the
wrongful death claim actually supports Defendants' argument that this Court must grant its
motion for a stay; according to the majority, the dissent need not worry about duplicate recovery,
because the wrongful death action will be stayed while the survival action undergoes arbitration,
thus allowing the court who hears the wrongful death claim to account for any recovery
previously awarded in the survival arbitration. Id.

VI.

Conclusion
This is one of the rare circumstances where a motion to reconsider must be granted.

Based upon the reasoning and holdings in Taylor, this Court predicts that the Pennsylvania
Supreme Court would find that, under Pennsylvania law, a wrongful death claim must be
stayed pending arbitration of a related survival claim subject to an arbitration agreement. This
intervening change in the controlling law requires that this Court grant Defendants' motion to
reconsider.
An appropriate order follows.
10

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SYLVIA A. CLOUSER,

)

CIVIL ACTION NO. 3:15-33

)

Plaintiff,

)

JUDGE KIM R. GIBSON

)

v.

)
)

GOLDEN GATE NATIONAL SENIOR
CARE, LLC, et al.,

)
)
)

Defendants.

)

ORDER
AND NOW, this 10th day of October, 2017, upon consideration of Defendants'
Motion for Reconsideration of Order Denying Defendants' Motion to Stay of Wrongful
Death Claim (ECF No. 86), and in accordance with the foregoing memorandum opinion,
IT IS HEREBY ORDERED that Defendants motion is GRANTED.

Accordingly, Plaintiff's wrongful death claim before this Court IS HEREBY
STAYED pending the arbitration of her survival claim.

BY THE COURT:

\~\
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE