Skinner v. Peninsula Healthcare Services, LLC

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CHAROLETTE SKINNER,
Individually and on behalf of the
Estate of ALBERT SKINNER;
JUDITH POWERS; and BRUCE
SKINNER,
Plaintiff,
C.A. No.: N20C-09-178 FJJ
V.
PENINSULA HEALTHCARE
SERVICES, LLC, a Delaware
Limited Liability Company,
Individually and d/b/a CADIA
REHABILITATION
RENAISSANCE; and LONG
TERM CARE CORP.,
New Nee Nee ee ee ee eee ee” ee ee” ee” ee ee” ee” ee” ee” ee’ ee”
Defendants.
Submitted: February 19, 2021
Decided: March 1, 2021
ON DEFENDANTS’ MOTION TO DISMISS:
DENIED IN PART AND GRANTED IN PART
ON DEFENDANTS’ MOTION TO STAY: DENIED
OPINION AND ORDER
Kelley M. Huff, Esquire, Shelsby & Leoni, Wilmington, Delaware, Attorneys for
Plaintiffs
Maria R. Granaudo Gesty, Esquire, Burns White LLC, Wilmington, Delaware,
Attorneys for Defendants
Jones, J.
In January of 2020 Albert Skinner (“Albert” or “Mr. Skinner”) fell at his
home and fractured his left hip. As a result of this accident, Albert was taken to
Beebe Hospital in Lewes, Delaware, where he underwent surgery. Following his
surgery, Albert was transferred to a Cadia Rehabilitation Renaissance (“Cadia”)
home facility in Millsboro, Delaware, for rehabilitation following surgery. During
his stay at Cadia, Mr. Skinner fell and was found on the bathroom floor. He was
transported back to Beebe Hospital and underwent surgery to his right hip. Albert
eventually went to another rehab facility. Albert’s health steadily declined, and he
died on February 11, 2020.
Albert is survived by his wife Charolette and his children Judith Powers
(“Judith”) and Bruce Skinner (“Bruce”). Albert’s surviving relatives filed a
Complaint against Cadia on September 18, 2020, alleging negligence and medical
malpractice arising from the care and treatment provided to Albert while he was a
resident at Cadia. The Complaint asserts two claims: a survival claim and wrongful
death claims.
Cadia has moved to dismiss Plaintiffs’ complaint, arguing that the Court lacks
subject matter jurisdiction because the matter is subject to binding arbitration
pursuant to an agreement signed by Charolette as power of attorney for Albert. In
the alternative, Cadia has moved the Court to stay those claims not subject to
arbitration until those claims which are subject to arbitration have been resolved
through arbitration. For the reasons stated herein Cadia’s Motion to Dismiss the
wrongful death claims is DENIED, the Motion to Dismiss the survivor claim is
GRANTED, and the Motion to Stay is DENIED.
STANDARD OF REVIEW
Cadia moves to dismiss based on Superior Court Civil Rule 12(b)(1),
claiming that the Superior Court lacks subject matter jurisdiction over the claims in
the Complaint. It is well-settled in Delaware that the power to compel arbitration
lies exclusively with the Court of Chancery.! This Court has held, however, that is
has jurisdiction to determine whether a valid and enforceable arbitration agreement
exists for purposes of determining whether it has subject matter jurisdiction.” In
reviewing such a motion, a court may consider matters outside the pleadings, such
as testimony and affidavits.
On a Motion to Dismiss under Rule 12(b)(1), the Court must accept every
well-pled allegation as true and draw all reasonable inferences in the non-movant’s
favor.* A Motion to Dismiss should be denied unless it appears to a “reasonable
certainty” that the plaintiff would not be entitled to relief under any set of facts that
could be proved to support them.°
110 Del. C. §5701.
2 Bruce Jones, et al. v. 810 Broom Street Operations Inc., 2014 WL 1347746 (Del Super. 2014); Aquila of
Delaware, Inc. v. Wilmington Trust Company, 2011 WL 4908406 (Del. Super. 2011).
3 Cecilia Abernathy, et al. v. Brandywine Urology Consultants, PA, 2021 WL 211144 (Del. Super. 2021).
4 Donald H. Loudon, Jr., v. Archer-Daniels-Midland Co., et al., 700 A.2d 135, 140 (Del. Supr. 1997).
3 Id.FACTS
The following facts are drawn from the pleadings and other filings in this
litigation thus far, and are viewed in the light most favorable to the Plaintiffs as the
non-moving party:
On January 2, 2020, Albert fell at his home and fractured his left hip. He
was taken to Beebe Hospital in Lewes, Delaware, where doctors performed surgery
on him. On January 5, Albert was transferred to Cadia to undergo rehabilitation.
On January 8, while still rehabilitating at Cadia, Albert fell and injured his right hip.
A Cadia employee found Albert on the floor of his bathroom, and he was returned
to Beebe where he underwent surgery to his right hip. Albert was then transferred
to a different rehabilitation facility. Albert’s health declined and he passed away on
February 11. He is survived by his wife, Charolette and his two adult children,
Judith and Bruce.
Prior to Albert’s initial accident on January 2™, Albert had executed a
document that gave Charolette his power of attorney. Upon Albert’s admission to
Cadia, Charolette signed several admission documents under her power of attorney
for Albert. Neither of Charolette’s children were present when she signed these
admission documents. One of the documents signed by Charolette was entitled
“Attachment #3: Binding Arbitration Agreement” (hereinafter “Arbitration
6 Unless otherwise noted, all events described in the Facts section took place in 2020.
Agreement” or “Agreement”). This document contained the following relevant
provisions:
Cadia Healthcare Ranaissance (“Facility”) and ALBERT
SKINNER (“Resident” (hereinafter, collectively, “Resident”)
understand and agree that ANY, DISPUTE,
DISAGREEMENT, CONTROVERSY, DEMAND, OR
CLAIM, INCLUDING, BUT NOT LIMITED TO, LEGAL
CLAIMS arising between them regarding any service or
health care provided to Resident by Facility, even if such
dispute arises after the Resident’s stay at the Facility has
ended, shall be submitted to BINDING ARBIRATION and
EXCLUSIVELY RESOLVED BY ARBITRATION,
except as otherwise set forth below. This Agreement does not
apply to (a) collection actions instituted by the Facility, (b)
Resident’s due process rights before state or federal regulatory
or administrative agencies.
THE PARTIES UDERSTAND AND AGREE THAT BY
SIGNING THIS ARBITRATION AGREEMENT, THEY
ARE GIVING UP AND WAIVING THEIR STATUORY
AND CONSTITUTIONAL RIGHTS TO HAVE ANY
CLAIM, INCLUDING MALPRACTICE AND
WRONGFUL DEATH CLAIMS, DECIDED IN A
COURT OF LAW BEFORE A JUDGE AND JURY.
The parties acknowledge that this Agreement binds the
Facility, the Facility’s Agents, the Facility’s Employees,
the Resident, the Resident’s legally authorized or
appointed representative (including without limitation a
Guardian, Attorney in Fact, or holder of Power of
Attorney), the Resident’s spouse, children, and heirs (once
determined), the Resident’s successors and assigns, and all
persons whose claim(s) derives through or on behalf of the
Resident.
Charolette does not dispute that she signed the Arbitration Agreement.
Charolette contends, however, that she only signed the Agreement in her capacity
as her husband’s legal representative and did not sign the agreement in her
individual or personal capacity. Charolette had no intention of signing the
agreement in her own capacity, nor was this ever discussed. Judith and Bruce never
signed the Arbitration Agreement and did not know of its existence until after the
lawsuit was filed.
ANALYSIS
In determining whether a claim is “properly committed to arbitration” for
purposes of ascertaining subject matter jurisdiction, this Court engages in a two-
part analysis. The Court must determine:
1. Whether a valid binding arbitration agreement exists; and
2. Whether the scope of the agreement covers all of the parties claims.
A party seeking to enforce an arbitration agreement has the initial burden of
establishing the existence of a valid agreement to arbitrate.’ In determining
whether an agreement to arbitrate exists, ordinary state-law contract principles
apply.’ Under Delaware law, contract formation requires mutual assent, meaning
a complete meeting of the minds of the parties.? Whether the parties mutually
assented should be determined objectively, based on overt manifestations of assent
7 First Options of Chicago, Inc. v. Kaplan et al., 514 US 938 (1995).
8 Id.° United Health Alliance, LLC v. United Medical, LLC, 2013 WL 6383026 (Del. Ch., 2013).
rather than subjective intent.!? No agreement to arbitrate exists unless there is a
clear expression of such an intent.!! 2
Applying the principles described above, it is clear that the parties intended
any claim belonging to Albert to be subject to binding arbitration. Charolette had
Albert’s power of attorney. That power of attorney specifically provided that
Charolette granted her the authority “to arbitrate any claim in which I [Albert] may
be in any manner interested and, for that purpose, to enter into agreements to
arbitrate, and either through counsel or otherwise, to carry on such arbitration and
perform or enforce any award entered therein.” The agreement signed by
Charolette in her capacity as Albert’s power of attorney was a valid binding
arbitration agreement. The scope of that agreement covered all of Albert’s claims.
Therefore, the survivor claims of Albert are subject to binding arbitration.
I now turn to the wrongful death claims of Charolette, Judith and Bruce.
These wrongful death claims are brought under Delaware’s Wrongful Death
Statute, 10 Del. C. §3724. The Wrongful Death Statute provides a separate cause
of action for the decedent’s spouse, parent, child, and siblings in some cases."°
According to the parties, whether the wrongful death cause of action is defined as
10 Id. at 6.
1 Td.
2 Tekman & Co. v. Southern Builders, Inc., 2005 WL 1249035 (Del. Super., 2005); Frank J. Behm v, Am. In’t
Grp. Inc., 2013 WL 3981663 (Del. Super., 2013); Dennis and Marlene Zeleny v. Thompson Homes at Centerville
Inc., 2006 WL 2382829 (Del. Super., 2006).
13 10 Del. C. §3724; Saunders v Hill, 202 A.2d 807 (Del. 1964); Luff v Hawkins, 551 A.2d 437(Del. Super. 1988)
a direct claim belonging to the Plaintiffs as individuals or a derivative claim
belonging to Albert’s estate determines whether the wrongful death claims are
subject to binding arbitration. According to the Plaintiffs, the wrongful death
claims are not derivative of the survivor action but are separate and distinct causes
of action that simply flow from the same underlying tort. In the Plaintiffs’ view,
the actions are independent of each other and the wrongful death claims are not
covered by the scope of the decedent’s agreement to arbitrate. Defendant
maintains that a wrongful death claim is derivative of and defined by the
decedent’s rights. According to the defendant, if it is defined by the decedent’s
rights then the wrongful death claims are subject to the same arbitration
requirements as the survivor action. The parties have directed the Court to several
cases that each argue supports their respective positions. I turn first to the
plaintiffs’ support, which focuses on three Delaware cases and a decision from
Pennsylvania.
In Cynthia Parlin, et al. v. Dynocorp In’l Inc., et.al., 2009 WL 3636756(Del. Super. 2009) this Court considered whether a wife’s wrongful death claim
was released by her husband signing a release of his rights against his employer
prior to his death. The Court held that although the wife’s wrongful death claim
was derivative in the sense that her claim derived from the tortious conduct leading
to her husband’s death, her husband could not unilaterally release her wrongful
death claim because it was a cause of action that she held separate and distinct
from her husband.
In Margaret Spadaro, et al. v. Abex Corporation, et al., the decedent’s wife
and two adult sons filed a wrongful death action against the decedent’s employer.
Before his death, the decedent and his wife signed a release on their behalf and on
behalf of their “heirs, executors, administrators, successor and assigned” that
waived all claims against the defendants. The Court dismissed the wife’s claim
because she signed the release, but the sons’ claims survived on the basis that
“since [the sons] had the power to contract for themselves, their parents did not
have the power to contract for them.”'4 The Court explained: “In Delaware, a
wrongful death action is maintained for the benefit of the loved ones or the
decedent and not for the benefit of the estate. Therefore, although a wrongful death
claim is a derivative claim, this does not mean that a release of the underlying
claim automatically releases the tortfeasor from wrongful death and loss of
consortium claims.”'°
Jones v. 810 Broom Street Operations LLC involved a complaint filed by
the plaintiff against a nursing home facility asserting both a wrongful death claim
and a survival claim. The nursing home moved to compel arbitration, or, in the
alternative, to dismiss for lack of subject matter jurisdiction based on the existence
4 Margaret Spadaro v. Abex Corporation, et. al., 1993 WL 603378, at *1 (Del. Super. 1993).
15 Id.of an arbitration agreement. The plaintiff opposed the motion and submitted an
affidavit averring he only signed the agreement on behalf of his mother as her
power of attorney, and not in his personal capacity. The Court denied the motion.
According to Plaintiffs, underlying the Jones decision is the notion that an
Arbitration Agreement signed only by a decedent does not bind independent
wrongful death claims that others may have as a result of the decedent’s death.
Finally, plaintiff points the Court to the Pennsylvania decision in Michael
V. Pisano, Individually and as Administrator of the Estate of Vincent F. Pisano,
Deceased v. Extendicare Homes, Inc., Operating under the Fictitious Name Belair
Health and Rehabilitation Center.'® In Pisano, the court held that a nursing home
arbitration agreement did not bind separate and non-derivative claims under the
Pennsylvania Wrongful Death act. In reaching this conclusion the court stated “a
wrongful death action no longer is derivative of the decedent’s claim ...the right
of action belongs to the statutory claimants rather than the decedent.”'’ The court
noted that a “derivative action” in tort law refers only to the “injury from which
the claimant derives a cause of action.”!® While both actions arise out of the same
tortious conduct, the actual injury to the wrongful death claimant is the decedent’s
death. Thus, the court concluded, the wrongful death action is derivative of
677 A.3d 651 (Pa. Super. 2013).
"7 Id, at 656.
8 Td, at 659.
10
decedent’s injuries but not derivative of the decedent’s death and the arbitration
agreement was not binding on the wrongful death beneficiaries.
Defendant points to its own set of cases in support of its argument that the
wrongful death claim is derivative of the survivor action and as such the binding
arbitration agreement applies to the wrongful death claimants. In Renaye Jones v.
Deborah L. Elliott!’ the issue before the Court was whether a spouse’s loss of
consortium claim was extinguished where the underlying claim of the injured
spouse had been released. In Jones, the Court concluded that the loss of
consortium claim was not released. According to the Defendant, this case stands
for the proposition that because the liability determination is the same in both the
survivor action and the wrongful death action, Delaware law requires that the
survival and wrong death claims be adjudicated in the same venue and Albert’s
election of binding arbitration binds his wife and children.
Defendants next point to the case of Susan A. Drake, Individually, and as
next friend of Melanie Drake and Danielle Drake, and as Administratrix of the
Estate of Robert W. Drake v. St. Francis Hospital, a corporation of the State of
Delaware, and Ka-Khy-Tze, M.D.”° In Drake, the plaintiff brought a cause of
action for wrongful death after the decedent’s underlying claims had become time
barred. The Delaware Supreme Court held that the Wrongful Death Act “imposed
19 551 A.2d 62 (Del. 1988)
20 560 A.2d 1059 (Del. 1989).
11
a condition precedent to the accrual of a wrongful death of action” in that it
requires that the decedent would have had an “ability to maintain an action and to
21 Tn the absence of a viable claim
recover damages if [the] death had not occurred.
for the underlying negligence and survival action on behalf of the decedent, the
Delaware Supreme Court held that “‘no cause of action for the wrongful death ever
accrued.” According to Defendant, Drake supports its position because the
wrongful death liability determination is dependent on the survivor liability
determination, making the two claims intrinsically linked to each other requiring
one forum for resolution — in this case, the one selected by Albert.
Wrongful death claims were not recognized at common law.” The existence
of wrongful death claims is statutorily based.** They represent a separate, distinct,
and independent claim from a survivor claim.”*> While proving a wrongful death
claim depends on the claimant proving the same underlying negligence as a
21560 A.2d 1059, 1062 (Del. 1989).
22 Id., at 1063.
33 Silvia v. Scotten, 122 A. 513, 514 (Del. 1923)(“It is well settled that under the common law no action for
damages could be maintained against a person who by his wrongful act, neglect or default may have caused the
death of another person.”); Jeffrey Luff, individually and as Administrator of the Estate of Brandon Lee Surguy,
and Anastasia Surguy v. Barton Jansen Hawkins, John Edward Voshell, and Jean Elaine Voshell,, 551 A.2d 437,
438 (Del. Super. 1988)(‘* In order to provide a new and independent cause of action to fill this void in the
common law, the Wrongful Death Act was enacted.”)
24 Jane A. Coulson and George T. Coulson, Administrator of the Estate of Ethel C. Fox v. Shirks Motor Express
Corporation, 107 A.2d 922, 924 (Del 1954)(“The action is not predicated upon the personal injuries sustained by
the deceased, but rather upon his wrongful death and the loss occasioned thereby.”); Rosenthalis v. Doctors for
Emergency Services, 2004 WL 692686, at *3 (Del. Super. 2004)(“The complaint also contains a survival claim
on behalf of the deceased. That is a separate claim. It is not. .. merely derivative or otherwise combined with the
wrongful death claim. But that fact does not give rise under the Act or the policy for combining them into a single
claim. Therefore, the survival action is a second claim and [the defendant] is obligated to decedant on that claim,
too.”); Luff at 438.
25 John Saunders, Administrator of the Estate of Hattie Loat v. James Hill, Administrator of the Estate of Simon
Loat, 202 A.2d 807 (Del. 1964); Luffat 438;
12
survivor claim, the wrongful death claim is nonetheless independent from the
survivor action. It is not derivative of the survival claim. Since a wrongful death
action is an independent and direct claim by the decedent’s relatives, the wrongful
death beneficiaries in this case are not bound by the arbitration agreement simply
because it was signed on behalf of the decedent.”
The question now becomes whether any of the beneficiaries are bound by
the arbitration agreement for reasons other than the fact that it was signed on behalf
of Albert.
In the instant case, Judith and Bruce never signed the Arbitration
Agreement. In fact, they were not even aware of the existence of the Arbitration
Agreement until the instant lawsuit was filed. Judith and Bruce did not waive the
right to a jury trial with respect to their wrongful death claims and did not authorize
their mother or father to do so on their behalf. In other words, Judith and Bruce
never assented to the Arbitration Agreement. Therefore, they cannot be bound by
it.
26 This decision is consistent with other states that have addressed this question. Michael V. Pisano, Individually
and as Administrator of the Estate of Vincent F. Pisano, Deceased, v. Extendicare Homes, Inc., Operating under
the Fictitious Name Belair Health and Rehabilitation Center, 77 A.3d 651 (Pa. Super. 2013); Clifford Wayne
WOODALL, individually and as representative of the Estate of Henry Wayne Woodall; and Sharon G. Woodall
King,v. Avalon Care Center-Federal Way, LLC., 231 P.3d 1252,1257-58 (Wash. 2010); Lisa Bybee v. Alan
Abdulla, M.D., and John Does 1-5, 189 P.3d 40 (Utah 2008); Sue Carter, Special Adm'r of the Estate of Joyce
Gott, Deceased v. SSC Odin Operating Company, LLC, d/b/a Odin Healthcare Center, 976 N.E.2d 344 (IIL.
2012); Dale Lawrence v. Beverly Manor, 273 S.W.3d 525, 529 (MO. 2009); Admr. Peters v. Columbus Steel
Castings Co., 873 N.E. 1258, 1262 (Ohio 2007);
13
Charolette, on the other hand, did sign the Arbitration Agreement.
Charolette has submitted an affidavit in this litigation. In her affidavit, Charolette
admits that she signed the Arbitration Agreement. But her affidavit also states that
she signed the Arbitration Agreement only as her husband’s power of attorney and
not in her personal capacity. Her affidavit is consistent with the documents, which
have been submitted as evidence in this case. Her signature in the Agreement
appears over a line labeled “Legal Representative Signature Line.” Additionally,
following her signature is “POA” meaning “power of attorney.” Finally, the
Agreement itself provides:
Cadia Healthcare Renaissance (“Facility”) and Albert Skinner
(hereinafter, collectively, “Resident”) understand and agree
that ANY, DISPUTE, DISAGREEMENT, CONTROVERSY,
DEMAND, OR CLAIM, INCLUDING, BUT NOT LIMITED
TO, LEGAL CLAIMS, arising BETWEEN THEM...
(emphasis added).
The phrase “between them” clearly applies to Albert and Cadia, and does
not explicitly or implicitly include Charolette in its terms. The plain terms of the
arbitration agreement lead to a conclusion that it was an agreement between Cadia
and Albert, and that Charolette is not bound by the Agreement in her personal
capacity. There is no credible evidence that Charolette waived her constitutional
right to a jury trial or that she assented to binding arbitration on her wrongful death
claim. In fact, the evidence presented leads to the opposite conclusion. Therefore,
14
Charolette’s wrongful death claim is not covered by the binding arbitration
agreement.
Defendant complains that a ruling in Plaintiffs’ favor could result in two
different proceedings and possibly inconsistent results, and therefore arbitration is
mandated. While defendant is correct that Delaware generally favors arbitration?’
it is equally clear that arbitration will not be imposed on parties who were not
parties to the agreement.”® More importantly, Defendant’s position infringes on
Plaintiffs’ constitutional rights. The Seventh Amendment to the United States
Constitution guarantees the right to a civil jury trial in a case like the present one.”?
The Delaware Constitution also recognizes the right to a civil jury trial.2° While
the right to a jury trial can be waived, the waiver must be exercised by the person
holding the right or by a person who has been granted the express authority to
waive that right?! This Court will not force arbitration over an individual’s
constitutional right to a civil jury trial where that right has not been waived. No
such waiver has occurred in this case.
27 SBC Interactive Inc v. Corporate Media Partners, Ameritech Media Ventures, Inc., Bellsouth Interactive Media
Ventures, Inc., GTE Media Ventures Incorporated, Disney Media Ventures Inc., and SNET Personal Vision, Inc.,
714 A2d 758, 761 (Del. 1998); Dennis and Marlene Zeleny v Thompson Homes at Centerville, Inc. and
Thompson Homes, Inc., 2006 WL 2382829 (Del. Super. 2006).
28 Vituli v. Carrols Corporation, et al., 2013 WL 2423091 (Del. Super., 2013)
2>U.S. Const. Am. VII.
30 See Article IV, Section 20 and Article I, Section 4 of the Delaware Constitution.
31 Cynthia Parlin, Individually, and in her Capacities as Surviving Spouse of Samuel Parlin, And As Executrix of
the Estate of Samuel Parlin, Deceased, et al. v. Dyncorp International, Incorporated, a Delaware Corporation,
Parent of the co-defendant Dyncorp entities, formerly known as DI Acquisition Corporation; Dyncorp
International LLC, a Delaware Limited Liability Corporation; and Doe Entities 1-10., 2009 WL 3636756 (Del.
Super., 2009); Jones, et al. v. 810 Broom Street Operations LLC, 2014 WL 1347746 (Del. Super. 2014). C/T
Communications Finance Corp. v. Level 3 Communications, LLC, 2008 WL 2586694, at *5.
15
The remaining question before this Court is whether the Wrongful Death
Claims should be stayed pending resolution of the survivor action that is subject
to binding arbitration. Defendants claim that the Federal Arbitration Act (“FAA”),
9 U.S.C. §3 requires the Court to stay the entire action if only a single claim is
subject to arbitration.*? Defendants’ claim is incorrect.
In Mendez v. Puerto Rican Intern., Co., Inc.*? the Third Circuit had an
opportunity to address this exact stay issue. In Mendez, forty-nine individual
plaintiffs brought an employment discrimination action against their employer.
Only eight plaintiffs had executed arbitration agreements, and the other forty-one
plaintiffs had not. The issue before the Third Circuit was the same as the issue
implicated here: whether a defendant who is entitled to arbitrate an issue with one
party can insist on a stay of proceedings with other parties who are not committed
to arbitrate. The Third Circuit refused to sanction a stay under these circumstances,
finding that a material burden on a party’s right to litigate their claims may not be
based upon an agreement that the party did not sign.
The Mendez Court wrote:
While [a stay pending arbitration for the parties who did not
assent to an arbitration agreement] would postpone rather than
32 “If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to
arbitration under an agreement in writing for such arbitration, the court in which the suit is pending, upon being
satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement,
shall on application of one of the parties stay the trial of the action until such arbitration has been had in
accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding
with such arbitration.” 9 U.S.C §3
33 553 F.3d 709 (3rd Cir. 2009),
16
eliminate a party’s right to litigate it’s claim against another, it
would nevertheless defer that right for the duration of a
proceeding over which the constrained party has no control and
would deprive the Court of any discretion to consider the impact
of that delay on that party. We find no persuasive evidence in
the FAA for sanctioning such a burden. Mendez v. Puerto Rican
Intern., Co., Inc., 553 F.3d 709, 711-712.
The reasoning in Mendez is on point in this case and this Court accepts this
well-reasoned approach. Therefore, this Court denies the defendant’s request to
stay this action pending the outcome of the arbitration proceeding for the survival
action.
Plaintiffs suggest that it would be appropriate to sever the survivor action
and the wrongful death actions, and stay the arbitration proceeding involving the
survival action until the resolution of the wrongful death claims. As explained
above, this Court has no jurisdiction over the survivor action. As such, the Court
declines Plaintiffs’ invitation to address the procedure and timing of the survivor
action.
For the reasons stated above, Defendants’ Motion to Dismiss is GRANTED
as to the survivor action and DENIED as to the wrongful death claims.
Defendants’ Motion to Stay the wrongful death actions is DENIED.
IT IS SO ORDERED.
Af
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Fran¢is J. Jones, Judge j FA
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