Robinson v. EOR–ARK, LLC

• Decision Date: 14 November 2016
• Docket Number: No. 15-3406,15-3406
• Citation: 841 F.3d 781
• Parties: Eddie B. Robinson, as administrator for the Estate of Willie Robinson, Sr., deceased, Plaintiff–Appellant v. EOR–ARK, LLC; VAJ, LLC; Senior Living Communities of Arkansas, LLC; SLC Operations Holdings, LLC; SLC Operations, LLC ; Pine Hills Holdings, LLC; Pine Hills Health and Rehabilitation, LLC, doing business as Pine Hills Health and Rehabilitation ; SLC Operations Master Tenant, LLC; SLC Properties, LLC; SLC Property Holdings, LLC; SLC Property Investors, LLC ; Arkansas Nursing Home Acquisitions, LLC; CSCV Holdings, LLC; Capital Funding, LLC; Capital Funding Group, Inc.; Capital Finance, LLC; Capital Seniorcare Ventures, LLC; Addit, LLC ; SLC Professionals of Arkansas, LLC, doing business as SLC Professionals, LLC ; Senior Vantage Point, LLC; 900 Magnolia Road SW, LLC ; Quality Review, LLC; Arkansas SNF Operations Acquisition, LLC; SLC Professionals Holdings, LLC; SLC Administrative Services of Arkansas, LLC; John Dwyer, Defendants–Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

841 F.3d 781

Eddie B. Robinson, as administrator for the Estate of Willie Robinson, Sr., deceased, Plaintiff–Appellant

v.EOR–ARK, LLC; VAJ, LLC; Senior Living Communities of Arkansas, LLC; SLC Operations Holdings, LLC; SLC Operations, LLC ; Pine Hills Holdings, LLC; Pine Hills Health and Rehabilitation, LLC, doing business as Pine Hills Health and Rehabilitation ; SLC Operations Master Tenant, LLC; SLC Properties, LLC; SLC Property Holdings, LLC; SLC Property Investors, LLC ; Arkansas Nursing Home Acquisitions, LLC; CSCV Holdings, LLC; Capital Funding, LLC; Capital Funding Group, Inc.; Capital Finance, LLC; Capital Seniorcare Ventures, LLC; Addit, LLC ; SLC Professionals of Arkansas, LLC, doing business as SLC Professionals, LLC ; Senior Vantage Point, LLC; 900 Magnolia Road SW, LLC ; Quality Review, LLC; Arkansas SNF Operations Acquisition, LLC; SLC Professionals Holdings, LLC; SLC Administrative Services of Arkansas, LLC; John Dwyer, Defendants–Appellees

No. 15-3406

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2016

Filed: November 14, 2016

Robert Henry Edwards, Wilkes & McHugh, John O'Grady, Reddick Moss PLLC, Deborah Truby Riordan, Appellate Solutions, PLLC, Little Rock, AR, William Parks Murray, III, Wilkes & McHugh, Philadelphia, PA, for Plaintiff–Appellant.

Stephen M. Dacus, Mark W. Dossett, Samantha Leflar, Kutak & Rock, Fayetteville, AR, for Defendants–Appellees.

Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.

MURPHY

, Circuit Judge.

Willie Robinson, Sr. entered into an arbitration agreement when he was admitted to the Pine Hills Health and Rehabilitation nursing home. After Willie died, his son and estate administrator Eddie Robinson (Robinson) brought this action against Pine Hills and related entities. Defendants moved to dismiss and compel arbitration. The district court¹ granted defendants' motion and Robinson now appeals. We affirm.

I.

When Willie was admitted to Pine Hills in 2010 he signed an arbitration agreement. The arbitration agreement provides that it is governed by the Federal Arbitration Act and includes a severability clause. The agreement also provides that claims arising from Pine Hills services to Willie must be arbitrated “in accordance with the National Arbitration Forum Code of Procedure, (‘NAF’) which is hereby incorporated into th[e] agreement, and not by a lawsuit or resort to court process.” (footnote omitted). The code lists five possible fora for arbitration: NAF, the International Arbitration Forum, the Arbitration Forum, arbitration-forum.com, and adrforum.com.

The year before the parties had entered into the arbitration agreement, NAF entered into a consent judgment in which it agreed not to process, administer, or in any way participate in any new consumer arbitration. The parties do not state whether the four other arbitration fora listed in the code still perform consumer arbitration. The code provides that if the code is canceled or the parties “are denied the opportunity to arbitrate a dispute, controversy or Claim before” a forum listed in the code, then the parties “may seek legal and other remedies.”

After Willie died, Robinson filed a complaint in Arkansas state court for alleged injuries and wrongful death Willie suffered at Pine Hills. Defendants are Pine Hills; entities that owned, operated, managed, controlled, and provided services to Pine Hills; and a person who was the corporate manager, officer, owner, and director of the defendant entities. Defendants moved to dismiss the complaint and compel arbitration and then removed the case to federal court. The district court granted the motion to dismiss and compel arbitration. Robinson appeals the district court's order.

II.

We review the district court's decision to compel arbitration de novo and its factual findings for clear error. Schultz v. Verizon Wireless Servs., LLC, 833 F.3d 975, 980 (8th Cir. 2016)

. In reviewing an arbitration agreement, “we ask only (1) whether there is a valid arbitration agreement and (2) whether the particular dispute falls within the terms of that agreement.” Faber v. Menard, Inc., 367 F.3d 1048, 1052 (8th Cir. 2004)

. If the parties have a valid arbitration agreement that encompasses the dispute, a motion to compel arbitration must be granted. 3M Co. v. Amtex Sec., Inc., 542 F.3d 1193, 1198 (8th Cir. 2008).

State contract law governs whether the parties have entered into a valid arbitration agreement. Donaldson Co. v. Burroughs Diesel, Inc., 581 F.3d 726, 731 (8th Cir. 2009)

. Robinson does not argue that the agreement is unenforceable, and under Arkansas law the agreement is enforceable even though NAF is unavailable to serve as the arbitrator. Courtyard Gardens Health & Rehab., LLC v. Arnold, 2016 Ark. 62, 485 S.W.3d 669, 674–77 (2016).

Because the arbitration agreement is enforceable, we must determine whether the present dispute falls within its scope given that NAF no longer conducts consumer arbitration. In determining whether a dispute falls within the scope of an arbitration clause, we “construe[ ] the clause liberally, resolving any doubts in favor of arbitration ... ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ ” 3M Co., 542 F.3d at 1199

(quoting MedCam, Inc. v. MCNC, 414 F.3d 972, 975 (8th Cir. 2005) ).

Robinson argues that the terms of the arbitration agreement allow him to litigate his claims because NAF's unavailability denies him “the opportunity to arbitrate a dispute, controversy or Claim before” the fora listed in the code. As an initial matter, it is not clear whether all possible arbitration fora listed in the code are actually unavailable. NAF has stopped participating in consumer arbitration but paragraph 2(S) of the code lists four other possible arbitration fora. If any of these fora is available, then there is no lapse in naming an arbitrator and the parties are bound to arbitrate. The parties appear to accept, though, that all fora listed in paragraph 2(S) are unavailable.

Even assuming that all listed arbitration fora are unavailable, the arbitration agreement still requires the parties to arbitrate this dispute. The code provides that if a party is denied the opportunity to arbitrate before a listed forum, then it “may seek legal and other remedies in accord with applicable law.” The applicable law here is Section 5 of the Federal Arbitration Act. That statute provides that when there is a lapse in naming an arbitrator, the court must appoint a substitute arbitrator so that the parties may still arbitrate the dispute. 9 U.S.C. § 5

.

Many courts have recognized an exception to Section 5

when the choice of arbitrator is integral to the arbitration agreement. Inetianbor v. CashCall, Inc., 768 F.3d 1346, 1350 & n.1 (11th Cir. 2014) (collecting cases). But see Green v. U.S. Cash Advance Ill., LLC, 724 F.3d 787 (7th Cir. 2013). Robinson argues that we should recognize this exception and conclude that the selection of NAF was integral to the arbitration agreement. We need not decide whether to adopt such exception because it would not apply in this case as the choice of arbitrator was not integral to the arbitration agreement. The arbitration agreement does not say that the parties must either arbitrate before one of the five fora listed in the code or...