United States District Court, D. Maryland
GWENDOLYN LYNCH, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF EARL MYERS Plaintiff
SSC GLEN BURNIE OPERATING COMPANY, LLC d/b/a GLEN BURNIE HEALTH AND REHABILITATION Defendant.
K. BREDAR CHIEF JUDGE
Gwendolyn Lynch brought this action against SSC Glen Burnie
Operating Company, LLC d/b/a Glen Burnie Health and
Rehabilitation in this Court on May 15, 2017, and she amended
her complaint on August 28. (Compl. ECF No. 1; Am. Compl. ECF
No. 21.) Defendant answered the amended complaint on August
30 (ECF No. 23), and the case proceeded to discovery.
Defendant has now moved to dismiss the case and compel
arbitration. (Mot. Compel, ECF No. 36.) Plaintiff has
responded in opposition (ECF No. 39) and Defendant has
replied (ECF No. 40). No. hearing is necessary to resolve the
matter. See Local Rule 105.6 (D. Md. 2016). The
court finds that the purported arbitration agreement is
valid, and the Defendant did not waive its right to enforce
that agreement. Therefore, the Court will grant
Defendant's motion, dismiss the case, and compel
step-father, Earl Myers, was admitted to a facility operated
by the Defendant (“the facility”) on November 27,
2015, after a weeklong stay at a hospital. (See
Expert Report Terrance L. Baker, M.D. 2, ECF No. 39-1
(“Baker Report”).) Mr. Myers had been in
“apparent good health” but had experienced
several falls prior to his hospitalization,
“culminating in a rapid functional decline, with
clinical deterioration to a stupor.” (Expert Report
George Taler, M.D. 1, ECF No. 39-2 (“Taler
Report”).) Upon leaving the hospital, he was
“unable to care for himself, ” however,
“[o]n admission to the nursing facility, he was noted
to be fully alert, [albeit] weak and debilitated.”
(Id.) According to Plaintiff “[h]is mental
status was always good, ” and none of the expert
reports in this case indicate that Mr. Myers suffered
cognitive decline. (Lynch Dep. 51:13-52:18, ECF No. 40-1;
see Baker Report; Taler Report.) Upon admission to
the facility, Mr. Myers' cognition was assessed by the
Defendant's staff. (See Nursing Admission Data
Collection for Earl Myers, ECF No. 39-3.) Under
“Orientation” the assessor checked
“Person” and “Time, ” but did not
check “Place” or “Confused.”
(Id.) Under “Cognition” the assessor
checked “Intact.” (Id.)
to Defendant, as well as Plaintiff in a sworn deposition, Mr.
Myers signed an arbitration agreement (“Arbitration
Agreement”) five days after being admitted to the
facility. (See Dispute Resolution Program 7, ECF No.
36-4 (“Arb. Agreement”); Lynch Dep. 89:16-18.)
Plaintiff stated in her deposition that “Daddy signed
it, ” referring to the Arbitration Agreement, and, when
asked if she recognized “[her] Dad's signature,
” she responded, “Yes.” (Lynch Dep.
89:16-18.) Under the terms of this agreement, Mr. Myers
agreed to arbitrate any dispute arising out of his care at
the facility if alleged damages were over $50, 000. (Arb.
Agreement at 3.) The agreement contains a choice of law
provision stating “This agreement is governed by the
Maryland Uniform Arbitration Act, Md. Code Ann., Cts. And
Jud. Proc. §§ 3-201 to 3-234.” (Id.
Myers was released from the facility on December 17, 2015,
but his condition did not improve. (See Baker Report
at 5-6.) Roughly one week later he signed a “Maryland
Medical Order for Life-Sustaining Treatment”
(“MOLST”). (MOLST, ECF No. 40-3.) After two more
subsequent hospitalizations, Mr. Myers passed away on January
31, 2016. (Baker Report at 6-8.) Plaintiff alleges that Mr.
Myers' death was the result of his stay at the facility.
filed the instant action against Defendant on May 15, 2017.
(Compl.) Defendant answered her complaint on June 12, 2017.
(Ans. to Original Compl., ECF No. 5.) Defendant did not
mention the Arbitration Agreement in its answer. (See
id.) Her original complaint contained a claim for
wrongful death, but Plaintiff is not Mr. Myers'
biological or adopted child (a necessary prerequisite to
bring a wrongful death claim under Maryland law) and she
therefore amended her complaint on August 28, 2017, dropping
that claim. (Am. Compl.); see Md. Code Ann., Cts.
& Jud. Proc. § 3-904(a) (defining class of
beneficiaries who may recover for wrongful death). Her
amended complaint states a claim for negligence, which she is
bringing on behalf of Mr. Myers. (See Am. Compl. pp.
6-7.) Defendant answered this complaint on August 30, 2017,
and again did not raise the issue of arbitration in its
answer. (See Ans., ECF No. 23.) The case then
proceeded to discovery.
Plaintiff responded to interrogatories and Defendant
subpoenaed some documents in anticipation of a deposition,
Defendant moved this Court for a “protective order,
” on October 24, 2017. (Mot. Protective Order, ECF No.
26; see Pl.'s Ans.'s to Interrogs., ECF No.
39-7; Subpoenas, ECF No. 39-9.) On December 14, 2017
Defendant took Plaintiff's deposition. (See
Lynch Dep.) On December 19, 2017, the Court issued an order
granting in part and denying in part Defendant's motion
for a “protective order.” (ECF No. 32.)
Essentially, Defendant had requested a “disclosure
order” permitting qualified health care providers to
speak with Defendant ex parte; discussions which
would ordinarily be in violation of the Health Insurance
Portability and Accountability Act. (See Mem., ECF
No. 31.) The Court denied Defendant's request, but
granted the motion in part and issued a “Disclosure and
Qualified Protective Order” that permitted Defendant to
access Mr. Myers' protected health information via
subpoena. (See ECF No. 33.) Defendant remained free
to interview Mr. Myers' health care providers with the
authorization of Plaintiff or in the presence of
three weeks after the Court's order, on January 12, 2018,
Defendant informed Plaintiff that it was “electing to
enforce the arbitration agreement, ” and requested that
Plaintiff dismiss this lawsuit. (Arbitration Letter, ECF No.
36-5.) Plaintiff did not voluntarily dismiss the suit, and
Defendant filed a motion to compel arbitration on February 9,
2018. (Mot. Compel, ECF No. 36.) Plaintiff responded in
opposition on February 23, 2018 (ECF No. 39) and Defendant
replied on March 2, 2018 (ECF No. 40). This motion is
therefore ripe for consideration.
Applicable Law and Standard
the seemingly clear surface of this case lies a rather murky
question of choice of law. The parties seem to believe that
the Federal Arbitration Act (“FAA”), and thus
Federal law interpreting it, apply to this
case. And at first blush they appear to be
correct. Any contract “evidencing a transaction
involving [interstate] commerce, ” is within the scope
of the FAA, and the contract here evidences such a
transaction. 9 U.S.C. § 2; cf. GGNSC Louisville St.
Matthews v. Madison, 254 F.Supp.3d 901, 910 (W.D. Ky.
2017) (noting that “[i]t blinks reality to say that, in
the aggregate, the nursing home industry does not affect
interstate commerce, ” and finding that, in part
because a nursing home plaintiff did business in multiple
states, contract between nursing home resident and nursing
home was a “transaction involving interstate
commerce.”). Even when a contract with an arbitration
provision contains a choice of law provision that chooses
non-Federal law, the presumption is that Federal law will
still apply to the question of arbitrability. See
Rota-McLarty v. Santander Consumer USA, Inc., 700 F.3d
690, 697 n.7 (4th Cir. 2012) (citing Porter Hayden Co. v.
Century Indem. Co., 136 F.3d 380, 382 (4th Cir. 1998)).
contract at issue here, however, is not a contract that
contains an arbitration clause; it is itself a
contract to arbitrate, and the choice of law clause does not
broadly select “Maryland law, ” but rather
explains that the arbitration contract will be governed by
the Maryland Uniform Arbitration Act (“MUAA”)
specifically. It would seem, then, that the contracting
parties chose Maryland law as the law of
arbitrability, and not simply as the law to be applied
within arbitration. The Fourth Circuit has not addressed the
issue of whether parties can select the law governing the
arbitrability of a contract, but other circuits have and
generally agree that, “[c]learly, they can.”
Ford v. NYLCare Health Plans of Gulf Coast, Inc.,
141 F.3d 243, 247 (5th Cir. 1996); see Motorola Credit
Corp. v. Uzan, 388 F.3d 39, 50-51 (2d Cir. 2004).
despite the apparent agreement of the parties, it is not
entirely clear that the FAA applies to this case. Luckily,
the nature of the issues presented renders the choice of law
question largely unimportant. Plaintiff challenges the
arbitration agreement on two grounds: 1) that it was not
validly entered into by Mr. Myers, and 2) that Defendant has
waived its right to enforce its contractual right to
arbitrate. Even under the FAA, both issues are decided under
state law. See Hightower v. GMRI, Inc., 272 F.3d
239, 242 (4th Cir. 2001) (“To determine whether the
parties agreed to arbitrate [under the FAA], courts apply
state law principles governing contract formation.”);
Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1121
(9th Cir. 2008) (“[C]ontract-based challenges [such as
waiver] are governed by applicable state law.”).
Therefore, the outcome of this case would be the same whether
the contract was considered under the FAA or the MUAA. Still,
the Court will proceed under the presumption that the
contract to arbitrate is governed by the MUAA, as its terms
a party moves to compel arbitration and the validity of the
purported arbitration agreement between the parties is
disputed, the motion is treated as one for summary
judgment.” Roach v. Navient Solutions,
Inc., 165 F.Supp.3d 343, 347 (D. Md. 2015) (quoting
Whitten v. Apria Healthcare Grp., Inc., Civ. No.
PWG-14-3193, 2015 WL 2227928, at *2 (D. Md. May 11, 2015).
“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). The burden is on the moving
party to demonstrate the absence of any genuine dispute of
material fact. Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970). If sufficient evidence exists for a
reasonable jury to render a verdict in favor of the party
opposing the motion, then a genuine dispute of material fact
is presented and summary judgment should be denied. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). However, the “mere existence of a scintilla of
evidence in support of the [opposing party's]
position” is ...