United States District Court, D. Nebraska
AMY LABS, As Special Administrator of the ESTATE OF BERNARD LABS, deceased, Plaintiff,
THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY d/b/a GOOD SAMARITAN SOCIETY - MILLARD, et al., Defendants.
M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Evangelical Lutheran Good
Samaritan Society's motion to stay and to compel
arbitration (filing 4) pursuant to the Federal Arbitration
Act, 9 U.S.C. § 1 et seq. The Court will grant
plaintiff's complaint was filed in state court on August
1, 2019. Filing 1-1 at 4. The Good Samaritan Society removed
the matter to this Court on August 23, filing 1, and on
August 26 filed its motion to compel arbitration, filing 4.
As evidence it presented the agreement (filing 4-2)
containing its arbitration clause, and it accompanied its
motion with a brief (filing 5) reciting legal authority
supporting its argument for arbitrability and asking the
Court to compel arbitration pursuant to 9 U.S.C. § 4.
plaintiff did not timely respond to the Good Samaritan
Society's motion. See NECivR 7.1(b)(1)(B). The
Magistrate Judge contacted the parties to check on the status
of the case, and on September 25 the plaintiff finally filed
an "objection" (filing 8) to the motion to compel.
But see NECivR 7.1(b)(1)(A) ("party opposing a
motion must not file an 'answer,'
'opposition,' 'objection,' or
'response,' or any similarly titled responsive
filing"). The plaintiff's "objection"
recited several alleged bases for concluding that the Good
Samaritan Society's arbitration agreement is
unenforceable: fraud, that the contract wasn't signed by
all the defendants, that the plaintiff's representative
didn't have authority to sign it, that it's invalid
due to mistake, and that it's unconscionable. Filing 8.
But the plaintiff did not submit any evidence to substantiate
her assertions, nor did she file a brief setting forth any
legal authority to support her arguments.
to file a brief opposing a motion does not confess the
motion, but it does preclude the opposing party from
contesting the moving party's statement of facts. NECivR
7.1(b)(1)(C). And it's the opposing party's burden to
file and serve supporting evidence. NECivR 7.1(b)(2)(A). The
plaintiff's failure to do so here leaves the Court with
nothing of substance to contradict the Good Samaritan
Society's prima facie case for arbitrability-that is,
that there was an agreement to arbitrate between the Good
Samaritan Society and the plaintiff's decedent (signed by
his attorney-in-fact) and that the specific dispute here
(negligence) falls within the scope of that agreement.
See Express Scripts, Inc. v. Aegon Direct Mktg.
Servs., 516 F.3d 695, 699-700 (8th Cir. 2008).
cannot avoid compelled arbitration by generally denying the
facts upon which the right to arbitration rests; the party
must identify specific evidence in the record demonstrating a
material factual dispute for trial. Tinder v. Pinkerton
Sec., 305 F.3d 728, 735 (7th Cir. 2002); accord
Soto v. State Indus. Prod., Inc., 642 F.3d 67, 72
n.2 (1st Cir. 2011); see City of Benkelman, Neb. v.
Baseline Eng'g Corp., 867 F.3d 875, 881-82 (8th Cir.
2017); Neb. Mach. Co. v. Cargotec Sols., LLC, 762
F.3d 737, 742 (8th Cir. 2014). Because the plaintiff has
presented no evidence to contract the Good Samaritan
Society's, there is no factual dispute here. Nor, without
a plaintiff's brief, does the Court have any legal basis
to distinguish her challenges to the validity of the contract
from the general rule that "a challenge to the validity
of the contract as a whole, and not specifically to the
arbitration clause, must go to the arbitrator." See
Buckeye Check Cashing v. Cardegna, 546 U.S. 440, 449
the Court concludes that this matter is subject to
arbitration, and will compel arbitration pursuant to 9 U.S.C.
Good Samaritan Society's motion to stay and to compel
arbitration (filing 4) is granted.
plaintiff's "objection" (filing 8) is
parties are directed to proceed to arbitration in accordance
with the terms of the arbitration agreement.
Every 90 days from the date of this order, counsel for the
Good Samaritan Society shall file a report on the Court's
docket which explains the current status of the pending
Clerk of the Court is directed to set an initial status