Eddie B. Robinson, as administrator for the Estate of Willie Robinson, Sr., deceased Plaintiff- Appellant
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
Submitted: September 21, 2016
from United States District Court for the Western District of
Arkansas - El Dorado
RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
MURPHY, Circuit Judge.
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
court granted defendants' motion and
Robinson now appeals. We affirm.
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.
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."
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.
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).
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, 485 S.W.3d 669, 674-77 (Ark. 2016).
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)).
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 ...