Johnson v. BLC Lexington SNF, LLC, Civil Action No. 5: 19-064-DCR

CourtUnited States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
Writing for the CourtDanny C. Reeves United States District Judge
PartiesCARRIE JOHNSON, etc., Plaintiffs, v. BLC LEXINGTON SNF, LLC, d/b/a Brookdale Richmond Place SNF, et al., Defendants.
Docket NumberCivil Action No. 5: 19-064-DCR
Decision Date13 June 2019

CARRIE JOHNSON, etc., Plaintiffs,
Brookdale Richmond Place SNF, et al., Defendants.

Civil Action No. 5: 19-064-DCR


June 13, 2019


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Plaintiff Carrie Johnson contends that she received substandard treatment at Brookdale Richmond Place, a skilled nursing facility located in Lexington, Kentucky. As a result, she asserts a plethora of claims against a multitude of defendants, including BLC Lexington SNF, LLC, American Retirement Corporation, Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Ann Phillips, Benita Dickenson. These defendants have filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and to compel arbitration. [Record No. 35] Ann Phillips and Benita Dickenson also have filed individual motions to dismiss. [Record Nos. 32, 33]

For the reasons explained below, the motion to dismiss on behalf of BLC Lexington SNF, LLC, American Retirement Corporation, Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Ann Phillips, and Benita Dickenson will be granted in part and denied in part. [Record No. 35] The Court, however, will not compel arbitration

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because there is no indication that the plaintiff's husband had the authority to sign the admission agreement on her behalf. Further, the defendants waived their right to compel arbitration by taking actions inconsistent with the arbitration agreement. Finally, Defendant Benita Dickenson's motion to dismiss will be denied, and Defendant Ann Phillips' motion to dismiss will be granted in part and denied in part. [Record Nos. 32, 33]


Carrie Johnson was admitted to Brookdale Richmond Place sometime during the fall of 2017.1 Her husband signed an admission agreement on October 20, 2017. Johnson alleges that while residing at Brookdale Richmond Place: she experienced poor hygiene; she contracted infections including MRSA; she was hospitalized; the staff failed to clean her surgical wound and; she experienced unnecessary pain and suffering. [Record No. 27, p. 25] Johnson also claims that she also suffered a loss of personal dignity and mental anguish and deteriorated beyond the normal aging process. She asserts that she was lured to Brookdale Richmond Place because of a fraudulently-inflated Five Star Rating.

The defendants completed annual certifications and health inspections necessary to operate Brookdale Richmond Place as required by the Commonwealth of Kentucky. [Record No. 27, p. 28] More specifically, the defendants were required to complete CMS Forms 671 and 672, disclosing staffing information, and submit these documents to the

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Center for Medicare and Medicaid Services ("CMS"). [Record No. 27, p. 28] CMS utilized the information included on the forms to calculate a skilled nursing home's rating. Brookdale Richmond Place had a Five Star Rating for direct care staffing, for RN staffing, and an overall Five State Rating. [Record No. 27, p. 29]

Johnson alleges that Benita Dickenson (the former Administrator at Brookdale Richmond Place) and Ann Phillips (Brookdale Richmond Place's current Administrator) intentionally inflated hours worked by direct care staff on CMS Form 671. [Record No. 27, p. 32] Ann Phillips assumed the role of administrator in February 2018. Prior to that time, she served as Brookdale Richmond Place's Executive Director. Johnson alleges that numbers were overinflated from 2014 to April 2018, causing the facility's rating to be higher than it would be, but for the overinflated numbers. She contends that the staffing levels fell below the standard of care required and the purported class did not receive the staffing services for which they paid. [Record No. 27, p. 33]

Johnson filed this action on October 16, 2018, in the Fayette Circuit Court. [Record No. 1-1] She later amended her Complaint, seeking to bring suit on behalf of a class.2 Her individual claims allege negligence (Count I), medical negligence (Count II), corporate negligence (Count III), violation of long-term care residents' rights in violation of KRS § 216.510 (Count IV), negligence by Ann Phillips (Count V), breach of contract (Count VI), punitive damages (Count VII), and causation and damages (Count VIII). Johnson contends

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that the defendants failed to ensure that rules and regulations were enforced, failed to ensure compliance with rules and regulations, and failed to ensure that appropriate corrective measures were taken. She also claims that the defendants did not keep the facility sufficiently staffed, did not follow her written care plan, failed to notify doctors or family members when her condition changed, and failed to maintain adequate records. [Record No. 27, pp. 34-35] Johnson alleges that she suffered injuries due to these actions.

Johnson's allegations on behalf of the purported class include the period January 1, 2014, to the present and seek to include Kentucky residents who received care at Brookdale Richmond Place. Johnson's class claims (which she characterizes as contract and quasi-contract) include fraud in the inducement (Count IX), fraudulent misrepresentation, concealment, and nondisclosure (Count X), negligent misrepresentation (Count XI), negligence (Count XII), breach of contract (Count XIII), contractual breach of fiduciary duty (Count XIV), breach of the implied covenant of good faith and fair dealing (Count XV), unjust enrichment (Count XVI), violation of the Kentucky Consumer Protection Act (Count XVII), violation of a "special relationship" (Count XVIII), civil conspiracy (Count XIX), joint enterprise (Count XX), concert of action (Count XXI), punitive damages (Count XXII), attorney's fees (Count XXIII), and causation and damages for Counts IX to XXIII (Count XXIV).

The defendants removed the action to this Court according to the Class Action Fairness Act, 28 U.S.C. § 1332(d). The defendants have now filed three motions to dismiss for failure to state a claim. The first motion seeks to dismiss the claims contained in Counts I through VIII against Ann Phillips. [Record No. 33] The second motion seeks to dismiss

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Counts IX through XXIII against BLC Lexington SNF, LLC, American Retirement Corporation, Brookdale Senior Living Communities, Inc., Brookdale Senior Living, Ann Phillips, Benita Dickenson. [Record No. 35] The defendants' final motion seeks to dismiss the claims asserted against Defendant Dickenson, based on the contention that she did not work at Brookdale Richmond Place when the plaintiff was a resident at that facility. [Record No. 32]


When evaluating a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must determine whether the complaint alleges "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plausibility standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). The Court must look to the substance of the entire complaint to determine if the claims are properly asserted and must be "construed so as to do justice." Fed. R. Civ. P. 8(e).

While a complaint need not contain detailed factual allegations, a plaintiff must provide more than mere labels and conclusions, and "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. And while a plaintiff is not required to plead facts showing that the defendant is likely to be responsible for the harm alleged, he or she must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. The plaintiff must present "more than an

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unadorned, the-defendant-unlawfully-harmed-me accusation" or "a formulaic recitation of the elements of a cause of action." Id. (citing Twombly, 550 U.S. at 555).


A. Arbitration

The admission agreement that the Johnson's husband signed for her entry into Brookdale Richmond Place includes an arbitration provision. The parties dispute whether the agreement is valid and whether the plaintiff is subject to arbitration. Johnson argues that she had neither signed nor seen the admission agreement and that her husband did not have the authority to sign on her behalf.

The Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16, "embodies [a] national policy favoring arbitration and places arbitration agreements on equal footing with all other contracts." Richmond Health Facilities v. Nichols, 811 F.3d 192, 195 (6th Cir. 2016). The FAA provides that written agreements to arbitrate disputes arising out of contracts or transactions "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. There is a presumption in favor of arbitration. Stout v. J.D. Byrider, 228 F.3d 709, 714 (6th Cir. 2000). However, the "FAA was not enacted to force parties to arbitrate in the absence of an agreement." Floss v. Ryan's Family Steak Houses, Inc., 211 F.3d 306, 315 (6th Cir. 2000) (quoting Avedon Engineering, Inc. v. Seatex, 126 F.3d 1279, 1286 (10th Cir. 1997)).

The Court conducts a limited review to determine if a plaintiff's claims are arbitrable. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 626 (1985); Stout, 228 F.3d at 714. The purpose of this review is to decide whether "a valid

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agreement to arbitrate exists" and if "the specific dispute falls within the substantive scope of the agreement." Richmond Health Facilities, 811 F.3d at 195. The Court applies state contract law in determining whether a valid agreement to arbitrate exists. Fazio v. Lehman Bros., Inc., 340 F.3d 386, 392...

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