United States District Court, N.D. Mississippi, Greenville Division
DANNY DYKES, Individually and on behalf of the Estate and Wrongful Death Beneficiaries of James A. Dykes, Deceased PLAINTIFF
CLEVELAND NURSING & REHABILITATION CENTER; and JOHN AND JANE DOE I-X DEFENDANTS
M. BROWN, UNITED STATES DISTRICT JUDGE.
medical malpractice action is before the Court on the renewed
motion to compel arbitration of Cleveland Nursing &
Rehabilitation Center. Doc. #40.
April 20, 2015, Danny Dykes filed a complaint in the Circuit
Court of Bolivar County, Mississippi, “individually and
on behalf of the Estate and wrongful death beneficiaries of
James A. Dykes, deceased.” Doc. #2. In his complaint,
Danny alleges that James A. Dykesdied as a result of
negligence while a patient at a nursing home facility
operated by Cleveland Nursing & Rehabilitation Center,
LLC (“Cleveland Nursing”). Id. at
¶¶ 7-8, 12, 20.
11, 2015, Cleveland Nursing removed the state action to this
Court on the grounds of diversity jurisdiction. Doc. #1 at
¶ 4. One week later, on June 18, 2015, Cleveland Nursing
filed a motion to compel arbitration. Doc. #4. In the
memorandum brief accompanying its motion, Cleveland Nursing
argued that at the time of James' admission to the
Cleveland Nursing facility, Billy Dykes, James' son,
signed an enforceable arbitration agreement as James'
healthcare surrogate and that this action falls within the
scope of the agreement. Doc. #5. As support for this
argument, Cleveland Nursing submitted a note from James'
treating physician, dated approximately a month after
James' admission, stating that James was incapacitated at
the time of admission. Doc. #4-2. Danny responded to the
motion to compel arbitration within the time allowed, Doc.
#8, and Cleveland Nursing filed a timely reply, Doc. #10.
February 3, 2016, this Court entered an order denying the
motion to compel arbitration. Doc. #13. In denying the
motion, the Court held that under Mississippi law, “in
order for one to act as a health care surrogate, there must
first be a determination of a lack of capacity by a
patient's primary physician” and that because
James' primary physician had not made a determination of
incapacity at the time Billy signed the arbitration
agreement, Billy could not have acted as James'
healthcare surrogate. Id. at 11 (emphasis omitted).
three months later, on May 6, 2016, Cleveland Nursing filed a
motion titled as a “Motion to Amend, ” Doc. #26,
but argued as a Rule 60(b) motion for reconsideration of the
order denying the motion to compel, Doc. #27 at 3. On October
31, 2016, this Court entered an order granting in part and
denying in part the motion for reconsideration. Doc. #39. The
order denied reconsideration as to the holding regarding
Billy's status as a healthcare surrogate but granted
Cleveland Nursing leave to file a renewed motion to compel
arbitration addressing the issue of Billy's actual
authority to execute the arbitration agreement. Id.
Nursing filed a renewed motion to compel arbitration on
November 14, 2016. Doc. #40. The memorandum accompanying the
motion requests an evidentiary hearing on the issue of the
validity of the arbitration agreement. Doc. #41. Danny
responded in opposition on November 28, 2016. Doc. #43.
Cleveland Nursing replied on December 5, 2016. Doc. #45.
2, 2017, this Court entered an order granting a period of
arbitration-related discovery and leave to file supplemental
briefs addressing such discovery. Doc. #47. On June 26, 2017,
Cleveland Nursing, at the close of the discovery period,
filed a supplemental memorandum in support of its renewed
motion. Doc. #54. Danny filed a supplemental memorandum on
July 10, 2017. Doc. #55.
Federal Arbitration Act (“FAA”) “permits an
aggrieved party to file a motion to compel arbitration when
an opposing party has failed, neglected, or refused to comply
with an arbitration agreement.” Am. Bankers Ins.
Co. of Fl. v. Inman, 436 F.3d 490, 493 (5th Cir. 2005)
(internal quotation marks omitted) (citing 9 U.S.C. §
4). “On a motion to compel arbitration by an aggrieved
party, the Court shall decide the issue of arbitrability
summarily.” Marsh v. First USA Bank, N.A., 103
F.Supp.2d 909, 914 (N.D. Tex. 2000) (citing 9 U.S.C. §
4). Thus, “evidence on the motion may be received by
the Court.” Id.
directs that “[i]f the making of the arbitration
agreement or the failure, neglect, or refusal to perform the
same be in issue, the court shall proceed summarily to the
trial thereof. If no jury trial be demanded by the party
alleged to be in default, … the court shall hear and
determine such issue.” 9 U.S.C. § 4. Where a jury
trial has not been demanded, a district court may satisfy its
duty under § 4 by holding an evidentiary hearing.
See Chester v. DirecTV, L.L.C., 607 F. App'x
362, 365 (5th Cir. 2015). However, the Fifth Circuit has
observed that, notwithstanding § 4's language, a
“district court is not required to conduct a hearing on
this threshold determination.” Armstrong v. Assocs.
Intern. Holdings Corp., 242 F. App'x 955, 959 (5th
Cir. 2007) (citing U.S. Titan, Inc. v. Guangzhou Zhen Hua
Shipping Co., 241 F.3d 135, 145 (2d Cir. 2001)); see
Marks 3 Zet-Ernst Marks GmBh & Co. KG v. Presstek,
Inc., 455 F.3d 7, 14 (1st Cir. 2006) (“Marks has
assumed that the ‘shall hear the parties' statement
in 9 U.S.C. § 4 refers to a live evidentiary hearing.
That may not be so. Rather, a ‘hearing' on the
papers may be all that is required.”). Even when the
making of an arbitration agreement is in issue, a district
court may determine the existence of an arbitration agreement
based on a paper record when either: (1) the evidentiary
record reveals no genuine issue of material
fact; or (2) the parties were afforded a
sufficient opportunity to argue and develop the evidentiary
with this authority, this Court has determined the validity
of an arbitration agreement without a hearing when: (1) the
parties were granted leave to conduct arbitration-related
discovery and submitted a thorough evidentiary record,
see Cotton v. GGNSC Batesville, LLC, No.
3:13-cv-169, 2015 WL 1310034, at *1-2 (N.D. Miss. Mar. 24,
2015); and (2) there was no factual dispute and the sole
issue before the Court was one of law, see Dykes v.
Cleveland Nursing & Rehab. Ctr., No. 4:15-cv-76,
2016 WL 426546, at *6 (N.D. Miss. Feb 3. 2016).
while Cleveland Nursing requested an evidentiary hearing,
Danny has not. Furthermore, as explained above, the parties
have been granted leave to conduct arbitration-related
discovery and have submitted a thorough evidentiary record.