United States District Court, D. New Mexico
THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, A NORTH DAKOTA CORPORATION D/B/A GOOD SAMARITAN SOCIETY-BETTY DARE, Plaintiff,
v.
BEATRICE MORENO, DECEASED, BY THE PERSONAL REPRESENTATIVE OF THE WRONGFUL DEATH ESTATE, MONICA CRUZ HATTON Defendant.
Martha
G. Brown Deana M. Bennett Jeremy K. Harrison Zoe E. Lees
Modrall, Sperling, Roehl, Harris & Sisk, PA Albuquerque
New Mexico Attorneys for the Plaintiff
Mary
Ellen Spiece Melanie Bossie Wilkes & McHugh PA Phoenix,
Arizona Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
THIS
MATTER comes before the Court on Plaintiff
Evangelical Lutheran Good Samaritan Society, a North Dakota
Company D/B/A Good Samaritan Society-Betty Dare's
(“Good Samaritan”) Motion to Compel Arbitration
and Petition for Appointment of Arbitrator, filed December
13, 2016 (Doc. 3) and its incorporated Memorandum of Law in
Support of Plaintiff's Motion to Compel Arbitration and
Petition for Appointment of Arbitrator, filed December 13,
2016 (Doc. 4)(“Motion to Compel”). The Court held
a hearing on May 2, 2017. The primary issues are: (i)
whether, pursuant to the Federal Arbitration Act
(“FAA”), 9 U.S.C. §§ 1-16, the Court
should grant a motion to compel arbitration where a temporary
legal guardian signed a nursing home admission agreement
(“Admission Agreement”) on behalf of a potential
nursing home resident -- Beatrice Moreno
(“Moreno”) -- that contained a “Resolution
of Legal Disputes'” (“Arbitration
Agreement”) provision delegating to the arbitrator the
“exclusive authority to resolve any disputes related to
the existence and/or enforceability” of the Arbitration
Agreement; (ii) whether the Court should compel discovery
regarding the temporary legal guardian's authority to
bind the Moreno to the Arbitration Agreement; and (iii)
whether Defendant Monica Cruz Hatton, the personal
representative of the wrongful death estate of Beatrice
Moreno (“Hatton”) is bound to arbitrate her
claims. The Court concludes that: (i) it will compel
arbitration, because Defendant Monica Cruz Hatton, the
personal representative of the wrongful death estate of
Beatrice Moreno (“Hatton”) never specifically
challenged the temporary legal guardian's authority to
agree to the delegation clause or the delegation clause's
unconscionability; (ii) it will, consequently, not compel
discovery, because the temporary legal guardian's
authority is an issue for the arbitrator; and (iii) if it
could consider whether Hatton is bound to the entire
Arbitration Agreement, it would determine that she is.
Accordingly, the Court grants the Good Samaritan's Motion
to Compel.
FACTUAL
BACKGROUND
Good
Samaritan owns and operates a nursing home in Alamogordo, New
Mexico. See Complaint to Compel Arbitration and
Petition for Appointment of Arbitrator ¶ 1 at 1, filed
December 13, 2016 (Doc. 1)(“Complaint”). On
February 27, 2014, Good Samaritan admitted Moreno into that
nursing home, and she lived there until her death on August
26, 2015. See Complaint ¶¶ 8, 19, at 2, 5;
Motion to Compel at 1. Also on February 27, 2014, the Twelfth
Judicial District, County Court of Otero of the State of New
Mexico, appointed SM Gantz OT Services, Inc. (“SM
Gantz”) Moreno's temporary guardian. See
Complaint ¶ 6, at 2. As temporary guardian, SM Gantz
received a Letter of Temporary Guardianship that authorized
SM Gantz to make decisions regarding Moreno's
“medical and psychiatric care, residential placement,
safety, and supervision.” See Complaint ¶
7, at 2. When Moreno entered the nursing home, SM Gantz,
acting as her legal temporary guardian, reviewed and signed
the Good Samaritan Admission Agreement on Moreno's
behalf. See Complaint ¶ 8, at 2-3; Good
Samaritan Society Admission Agreement at 14-15 [at 22-23 on
CM/ECF](dated February 27, 2014), filed December 13, 2016
(Doc. 1-1)(“Admission Agreement”). The Admission
Agreement contains an Arbitration Agreement that gives the
resident or his or her legal representative the option to
agree to arbitrate disputes or to elect not to arbitrate
disputes. See Admission Agreement at 13-14 [at 21-22
on CM/ECF]; Complaint ¶¶ 10-11, at 3. If a resident
or legal representative elects to arbitrate, the Admission
Agreement explains that the resident is electing to waive his
or her right to sue in a court of law and to a trial by jury.
See Complaint ¶ 15, at 4; Admission Agreement
at 13 [at 21 on CM/ECF]. SM Gantz elected to arbitrate
disputes on Moreno's behalf. See Complaint
¶ 18, at 5; Admission Agreement at 14 [at 22 on CM/ECF].
The
Arbitration Agreement contains several other relevant
clauses. See Complaint ¶¶ 13-17, at 3-5.
Paragraph A provides: “Any legal controversy, dispute,
disagreement or claim arising between the Parties hereto . .
. in which Resident, or a person acting on his or her behalf,
alleges a violation of any right granted Resident under law
or contract shall be settled exclusively by binding
arbitration.” Admission Agreement at 13 [at 21 on
CM/ECF]; Complaint ¶ 13, at 3. Paragraph B states:
Any legal controversy, dispute or claim of any kind arising
out of or related to this Admission agreement, or the breach
thereof, or, related to the care of stay at the Facility,
shall be settled exclusively by binding arbitration . . .
This arbitration clause is meant to apply to all
controversies, disputes, disagreements or claims including,
but not limited to, all breach of contract claims, all
negligence and malpractice claims, all tort claims and all
allegations of fraud concerning entering into or canceling
this Admission Agreement. This arbitration provision binds
all parties whose claims may arise out of or relate to
treatment or service provided by the center including any
spouse or heirs of the Resident.
Admission
Agreement at 13 [at 21 on CM/ECF]; Complaint ¶ 14, at 4.
Paragraph C contains several clauses, but in relevant part it
states:
The Parties shall work together in good faith to select a
mutually agreeable individual arbitrator or a national
recognized arbitration service provider. . . . The issue of
whether a Party's claim(s) is subject to arbitration
under this . . . provision shall be decided by the
arbitrator. . . . [T]he Arbitrator shall have exclusive
authority to resolve any disputes related to the existence
and/or enforceability of this . . . provision, including but
not limited to any claim that all or any part of this . . .
provision is void or voidable.
Admission
Agreement at 13-14 [at 21-22 on CM/ECF]; Complaint
¶¶ 15-16, at 4-5 (emphasis omitted). The
Arbitration Agreement further provides that the nursing home
regularly engages in transactions involving interstate
commerce, that the services provided to residents involve
interstate commerce, and that the FAA governs the Arbitration
Agreement. See Admission Agreement at 14 [at 22 on
CM/ECF]; Complaint ¶ 17, at 5.
After
Moreno died on August 26, 2015, Moreno's daughter, Monica
Cruz Hatton, was appointed personal representative of
Moreno's estate. Hatton subsequently filed a lawsuit in
the Twelfth Judicial District Court against Good Samaritan.
See Complaint ¶ 20, at 5-6. On November 21,
2016, Hatton filed an amended complaint in state court
against Good Samaritan, among other defendants, alleging
causes of action for wrongful death, negligence, negligence
per se, negligent or intentional misrepresentation, violation
of the Unfair Practices Act, and punitive damages.
See Complaint ¶ 20-21, at 5-6; First Amended
Complaint for Wrongful Death, Negligence, Negligence Per Se,
Misrepresentation, Violation of the Unfair Trade Practices
Act, and Punitive Damages at 1-22, filed December 13, 2016
(Doc. 1-2)(“State Court Action”).
PROCEDURAL
BACKGROUND
On
December 13, 2016, Good Samaritan filed its Complaint
requesting the Court to compel the parties to: (i) arbitrate
pursuant to the Admission Agreement's terms; (ii) order
Hatton to arbitrate all claims that she brought in the State
Court Action against Good Samaritan; (iii) stay the State
Court Action pending resolution of the arbitration process;
(iv) stay further proceedings in this action pending the
arbitration's conclusion or dismiss the matter without
prejudice; and (v) order other proper relief. See
Complaint, Prayer for Relief, ¶¶ A-E, at 12. Also
on December 13, 2016, Good Samaritan filed its Motion to
Compel.
1.
Good Samaritan's Motion to Compel Arbitration and
Petition for Appointment of Arbitrator.
Good
Samaritan's Motion to Compel argues that Hatton's
State Court claims must be arbitrated pursuant to the
arbitration clauses in the Admission Agreement that SM Gantz
signed on Moreno's behalf. See Motion to Compel
at 6. First, it argues, the Court must either order the
parties to select an arbitrator or to appoint an arbitrator.
See Motion to Compel at 6. According to Good
Samaritan, the Court's job then is concluded, because the
arbitrator will then decide whether Hatton's claims are
arbitrable and meritorious. See Motion to Compel at
6. Good Samaritan argues that, if, however, the Court
concludes that it will not enforce the clauses delegating
authority to the arbitrator to determine arbitrability
(“Delegation Clauses”), the Court should,
nonetheless, conclude that Hatton's claims fall within
the Arbitration Agreement's scope and order the parties
to select an arbitrator or appoint one. See Motion
to Compel at 6.
Good
Samaritan contends that the FAA governs the Arbitration
Agreement. See Motion to Compel at 7. It argues that
the parties agreed within the Admission Agreement to
arbitrate “[p]ursuant to the Federal Arbitration
Act” and also agreed that the “Admission
Agreement is a transaction involving interstate
commerce.” Motion to Compel at 7. Good Samaritan, thus,
argues under the FAA, this writing and agreement is
sufficient to demonstrate the FAA controls the agreement,
unless there are reasons in law or equity for revoking a
contract. See Motion to Compel at 7. The FAA applies
with equal force to wrongful death claims against nursing
homes, or other personal injury claims, it argues, because,
as the Supreme Court of the United States has concluded, the
FAA's “text includes no exception for
personal-injury or wrongful-death claims.” Motion to
Compel at 8 (quoting Marmet Health Care Ctr., Inc. v.
Brown, 565 U.S. 530, 532 (2012)).
Because
the FAA applies, Good Samaritan argues that the Court's
first task is to compel the parties to select an arbitrator
or to appoint one. See Motion to Compel at 8. The
Arbitration Agreement specifies that “[t]he Parties
shall work together in good faith to select a mutually
agreeable individual arbitrator or a nationally recognized
arbitration service provider, ” but, it argues, because
Hatton has not responded to Good Samaritan's request to
work together to select the arbitrator, the Court must
intervene and “compel the parties to work together to
select” one. Motion to Compel at 8. Good Samaritan
further avers that the FAA requires the Court to appoint an
arbitrator when either “1) the method for selecting an
arbitrator has not been designated in the agreement, or 2) or
[sic] there is a lapse in the naming of the
arbitrator.” Motion to Compel at 9 (citing 9 U.S.C.
§ 5.). Good Samaritan argues that, because the FAA's
language is mandatory, and because there has been a lapse in
naming the arbitrator, the Court must now appoint an
arbitrator for the parties. See Motion to Compel at
9.
Regarding
the Delegation Clauses, Good Samaritan asserts that it is
settled law that “parties can agree to arbitrate
‘gateway' questions of ‘arbitrability, '
such as whether the parties have agreed to arbitrate or
whether their agreement covers a particular
controversy.” Motion to Compel at 9 (quoting
Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63,
68-69 (2010)(“Rent-A-Center”). According
to Good Samaritan, the Delegation Clauses that provide,
“the Arbitrator shall have exclusive authority to
resolve any disputes related to the existence and/or
enforceability of this Resolution of Legal Disputes
Provision” and “[t]he issue of whether a
party's claim(s) is subject to arbitration . . . shall be
decided by the arbitrator” are enforceable. Motion to
Compel at 9-10 (emphasis omitted); Admission Agreement at
13-14 [at 21-22 on CM/ECF].
If the
Court, however, concludes that it will not enforce the
Delegation Clauses, Good Samaritan argues that the remaining
Arbitration Agreement is “valid and enforceable,
” and would bind Hatton for several reasons.
See Motion to Compel at 10. First, Good Samaritan
contends that Moreno's legal guardian's signature
binds Hatton to the arbitration clause. See Motion
to Compel at 11, 15-18. It argues that the Twelfth Judicial
Circuit of New Mexico authorized Moreno's legal guardian
-- SM Gantz -- to make medical and psychiatric care and
residential placement decisions on Moreno's behalf, and,
consistent with that authority, Gantz “was authorized
to take all acts necessary to admit [Moreno] to [Good
Samaritan]” and could “elect[] arbitration on Ms.
Moreno's behalf.” See Motion to Compel at
11-12. Good Samaritan contends that if SM Gantz lacked
authority to agree to arbitration, SM Gantz'
“authority to enter into the Admission Agreement and
all other admission forms is equally vulnerable.”
Motion to Compel at 12. From that assertion Good Samaritan
argues that if the entire agreement's validity is
challenged, then, under “well-established law, ”
the entire agreement's validity must be “decided by
the arbitrator rather than a court.” Motion to Compel
at 12 (citing Prima Paint Corp. v. Flood & Conklin
Mfg. Co., 388 U.S. 395, 404 (1967)).
Second,
Good Samaritan argues that § 2 of the FAA compels the
Court to enforce the Arbitration Agreement. See
Motion to Compel at 13. Good Samaritan asserts that the FAA
commands the Court to place the arbitration provision on
equal footing with the Admission Agreement's remaining
provisions and that, if SM Gantz had the authority to enter
into the Admission Agreement, he also had “authority to
bind Ms. Moreno” to the arbitration clause, and also
Hatton as Moreno's estate. Motion to Compel at 13, 15-18
(citing THI of N.M. at Hobbs Ctr., LLC v.
Spradlin, 532 F.App'x 813, 818 (10th Cir.
2013)(unpublished)(“[B]ecause [the resident] was bound
by the arbitration clause as a third-party beneficiary, the
non-signatory, wrongful-death beneficiaries are likewise
bound.”)). Based on this conclusion, Good Samaritan
stresses that the Court cannot require “Good Samaritan
to make a special showing of proof” that SM Gantz had
specific authority to consent to the arbitration provision;
authority to enter into the contract should be sufficient.
Motion to Compel at 13.
Third,
Good Samaritan argues that even if SM Gantz lacked authority
to bind Moreno and Hatton, Hatton is still bound to
arbitrate, because Moreno was the Admission Agreement's
third-party beneficiary. See Motion to Compel at 14.
Good Samaritan asserts that, based on the contract's
face, Moreno was the contract's intended beneficiary
“both generally by the services rendered . . . and more
specifically by the Arbitration Provision itself.”
Motion to Compel at 14-15. Because Moreno benefited from the
Contract, Good Samaritan argues that she “would have
been bound to arbitrate.” Motion to Compel at 15.
Fourth,
Good Samaritan argues that Hatton is equitably estopped
“from denying [the arbitration provision's]
validity.” Motion to Compel at 18. In support of this
argument, Good Samaritan cites New Mexico law that equitable
estoppel requires a party's detrimental reliance based on
another's actions. See Motion to Compel at 18.
Good Samaritan contends that it “reasonably relied on
Mr. Gantz's court appointed authority to elect (or not)
arbitration on Ms. Moreno's behalf, ” and, based on
this reliance, “treated Moreno for a year and a half
pursuant to the terms in the Admission Agreement.”
Motion to Compel at 18. Good Samaritan avers that having,
thus, “accepted the benefits afforded to Ms. Moreno,
” Hatton cannot now “deny the applicability of
[the Admission Agreement's] Arbitration Provision.”
Motion to Compel at 19.
Fifth,
Good Samaritan asserts that Hatton's claims all fall
underneath the Arbitration Provision's scope.
See Motion to Compel at 19. Good Samaritan contends
that, because the arbitration provision states that “
[a]ny legal controversy, dispute, disagreement or claim of
any kind arising out of or related to this Admission
agreement, or the breach thereof, or, related to the care of
stay at the Facility, shall be settled exclusively by binding
arbitration, ” and because it also compels arbitration
for “all controversies . . . including, but not limited
to, . . . all negligence and malpractice claims, [and] all
tort claims, ” the arbitration provision compels
arbitration for Hatton's wrongful death, negligence,
negligence per se, Unfair Practices Act violation, and
punitive damages. Motion to Compel at 20. Hatton's
claims, Good Samaritan argues, clearly constitute
“[a]ny legal controversy, dispute, disagreement or
claim of any kind . . . related to the care of stay at the
Facility.” Motion to Compel at 20.
Finally,
Good Samaritan asserts that, if the Court compels arbitration
it must stay this proceeding and the State Court Action.
See Motion to Compel at 20. According to Good
Samaritan, pursuant to the FAA, a court must, “upon
being satisfied that the issue involved in such suit or
proceeding is referable to arbitration . . . shall on
application of one of the parties stay the trial of the
action until such arbitration has been had.” Motion to
Compel at 20 (quoting 9 U.S.C. § 3)(emphasis omitted).
Good Samaritan argues, accordingly, that the Court must stay
the action in federal court once it compels arbitration.
See Motion to Compel at 20. Good Samaritan also
argues that the All Writs Act, 28 U.S.C. §§
1651-59, and the Anti-Injunction Act, 28 U.S.C. § 2283
permit the Court to enjoin the State Court action “to
protect or effectuate its decision to compel
arbitration.” Motion to Compel at 20.
2.
Hatton's Response to Good Samaritan's Motion to
Compel.
Hatton
responded on January 9, 2017. See Defendant's
Response to Plaintiff's Motion to Compel Arbitration and
Petition for Appointment of Arbitrator, filed January 9, 2017
(Doc. 14)(“Response”). Hatton argues broadly that
the Court, not the arbitrator, has the ability to determine
arbitrability despite the Admission Agreement's
Delegation Clauses and that, here, the Court should decide
that Hatton's claims are not arbitrable, because SM Gantz
lacked authority to enter into the Admission Agreement, SM
Gantz failed to consult with Moreno before signing the
agreement, and the Admission Agreement's arbitration
clause is substantively and procedurally unconscionable.
See Response at 1-2.
As an
initial matter, Hatton argues that, because she contends that
“the Arbitration Agreement is unenforceable in its
entirety, ” the Court, not the arbitrator, should
decide arbitrability. Response at 6. Hatton explains that,
“even though parties can contract to delegate such
[arbitrability] decisions to the arbitrator, a delegation
within an unenforceable agreement is of no effect.”
Response at 6 (citing Rupelt v. Laurel Healthcare
Providers, LLC, 2013-NMCA-014, ¶ 8, 293 P.3d 902,
906). Accordingly, Hatton argues that, for three reasons, the
Arbitration Agreement is unenforceable. See Response
at 6.
First,
Hatton argues that SM Gantz lacked authority to waive
Moreno's constitutional right to a jury trial, so the
Arbitration Agreement is unenforceable. See Response
at 7. Hatton asserts that, under New Mexico law, the court
order granting temporary guardianship limits the temporary
guardian's power to what is expressly “specified in
the court order.” Response at 7 (emphasis
omitted)(citing N.M. Stat. Ann § 45-5-310(E); N.M Stat.
Ann § 45-5-301.1). Hatton contends that, given this
limit on a temporary guardian's power, SM Gantz'
guardianship authorizing letter granting SM Gantz the power
“to make only the decisions regarding . . .
medical and psychiatric care, residential placement, safety,
and supervision . . . as reasonably necessary to avoid
immediate and irreparable harm” did not authorize
SM Gantz to make decisions that would “waiv[e] Ms.
Moreno's constitutional right to a jury trial.”
Response at 8 (emphasis in original). According to Hatton, a
decision to waive constitutional jury rights “did
nothing to address immediate or irreparable harm threatening
Ms. Moreno.” Response at 8. Hatton further contends
that SM Gantz lacked authority, because he was obligated to
act in Moreno's best interest, but there is no evidence
“as to why this waiver was in Ms. Moreno's best
interest.” Response at 8.
Second,
Hatton argues that the Arbitration Agreement is unenforceable
because SM Gantz failed to follow proper procedures to waive
Moreno's constitutional rights. See Response at
10. Hatton avers that, under several jurisdictions'
caselaw, a guardian must “inquir[e] into the
incapacitated person's preferences or, in the absence
thereof, such actions must be clearly within the
incapacitated person's best interests.” Response at
10. Hatton argues that, here, SM Gantz failed to follow
proper procedures, because SM Gantz, as “a corporate
guardian, routinely signs arbitration agreements . . . and
perfunctorily did so here without any investigation into
[Moreno's] individual desires or preferences . . . or
without any examination [of] her best interests.”
Response at 12. Hatton argues that, accordingly, even if SM
Gantz had the authority to sign the Arbitration Agreement,
his failure to inquire into her preference and his failure to
investigate into Moreno's best interest
“invalidates [SM Gantz'] February 27, 2014
signature on the Arbitration Agreement.” Response at
13.
Third,
Hatton argues that the Arbitration Agreement is procedurally
and substantively unconscionable. See Response at
13. Hatton asserts that the Arbitration Agreement is
substantively unconscionable, because it binds “all of
[the] residents' most likely claims and reserves [Good
Samaritan's] most likely claim for collection of past-due
accounts” to the courts. Response at 14 (citing
Cordova v. World Finance Corp. of NM, 2009-NMSC-021,
¶¶ 25-32, 208 P.3d 901, 908-10; Rivera v.
American General Fin. Servs., Inc., 2011-NMSC-033,
¶¶ 50-53, 259 P.3d 803, 818-19). Hatton maintains
that although the Admission Agreement does not reference
collection claims, the Arbitration Agreement's scope does
not cover collection claims and that the Admission
Agreement's provision covering “late payment
charges” references court costs, thus signaling that
Good Samaritan “contemplates . . . going to
court” to collect late payments. Response at 15. Hatton
also argues that the Arbitration Agreement is substantively
unconscionable, because it requires residents to pay for half
of both the filing fee and the cost of an arbitrator -- a
prohibitively high amount. See Response at 16
(citing Green Tree Fin. Corp.-Ala. V. Randolph, 531
U.S. 79, 90 (2000); Clark v. Renaissance West, LLC,
232 Ariz. 510. ¶ 9-19, 307 P.3d 77, 79-81 (Ct. App.
2013)). Hatton further contends that the Arbitration
Agreement's confidentiality clause demonstrates
substantive unconscionability, because confidentiality
clauses allow Arbitration Agreement drafters to
“accumulate ‘institutional knowledge of prior
arbitrations, '” whereas potential plaintiffs
“cannot obtain precedent or other prior information,
” to their detriment. Response at 17. Hatton adds that,
as a policy matter, the state has an interest in a
“transparent judicial process, ” so the Court
should conclude that the confidentiality agreement is
substantively unconscionable. See Response at 17.
Hatton
also avers that the Arbitration Agreement is procedurally
unconscionable, because it lacks “the specific
procedural rules by which an arbitration will be
governed.” Response at 17. According to Hatton, the
Arbitration Agreement's provision allowing the parties to
agree upon “the rules of the arbitration service
provider” if arbitration occurs, unless the parties
cannot agree, in which case the plaintiff's rules will
apply, demonstrates that there are no procedural rules,
making Hatton “unable to determine if the Arbitration
Agreement should be rejected for restricting a resident's
ability to prove his or her case.” Response at 17-18.
Hatton argues that, accordingly, the Agreement's
“failure to disclose applicable procedural rules
renders it procedurally unconscionable.” Response at
18.
Regarding
remedy, Hatton states that, if the Court finds the
arbitration provision unconscionable, severing portions of
the arbitration clause is inappropriate. See
Response at 18. Hatton argues that the “one-sided
arbitration provisions are central to the overall arbitration
scheme” and, thus, cannot be severed to “save the
parties' general agreement to arbitrate.” Response
at 18 (citing Ruppelt v. Laurel Healthcare Providers,
LLC, 2013-NMCA-014, ¶ 20, 293 P.3d 902, 909).
Hatton insists that, accordingly, the Court “should
strike the Arbitration Agreement in its entirety.”
Response at 19. Hatton requests, alternatively, “the
right to conduct discovery regarding the Arbitration
Agreement's enforceability” and for the Court to
“hold an evidentiary hearing on the issues
presented.” Response at 2.
Finally,
Hatton refutes several of Good Samaritan's arguments that
the Arbitration Agreement is enforceable. Hatton avers that
Barron v. The Evangelical Lutheran Good Samaritan
Society, 2011-NMCA-094, 265 P.3d 720, which Good
Samaritan cites, is inapposite, because that case failed to
consider “decisions made by court-appointed guardians
for an incapacitated person.” Response at 8-9. Hatton
argues that, even if the decision is applicable, the case
nonetheless allows limitations to be placed on a
guardian's authority, and because the guardianship letter
did not expand SM Gantz' authority to afford waiver of
constitutional rights, the Admission Agreement is still
unenforceable. See Response at 9. Hatton further
contends that the Arbitration Agreement could not have bound
her as a third-party beneficiary, as Good Samaritan argues,
because she was a party to the contract and, as a matter of
law, parties to a contract cannot be third-party
beneficiaries. See Response at 9-10 n.1. Hatton also
avers that she is not equitably estopped from challenging the
Arbitration Agreement, because she “received no
benefits from the arbitration Agreement, ” Good
Samaritan did not reasonably rely on SM Gantz' authority,
because Good Samaritan was responsible for investigating the
limits of SM Gantz' power, and Hatton's claims are
not based on the Admission Agreement, but on negligence and
on state and federal regulations governing nursing
facilities. Response at 10 n.1.
3.
Good Samaritan's Reply.
Good
Samaritan argues in reply that Hatton failed to attack
adequately the Admission Agreement's Delegation Clauses,
which, under controlling Supreme Court precedent, means
“that this Court ‘must treat [the Delegation
Clauses] as valid.'” Reply in Support of
Plaintiff's Motion to Compel Arbitration at 1, 3 filed on
January 23, 2017 (Doc. 15)(“Reply”)(citing
Rent-A-Center, 561 U.S. at 72). Good Samaritan
insists that state precedent which Hatton cites, see
Ruppelt v. Laurel Healthcare Providers, LLC,
2013-NMCA-014, 293 P.3d 902, “does not control the
analysis, ” but rather Rent-A-Center, 561 U.S.
at 72, controls, because federal law -- the FAA -- is at
issue, Reply at 3. This federal case, according to Good
Samaritan, should end the matter, because the
clear-and-unmistakable language in the arbitration clause
delegating the arbitrability issue to the arbitrator requires
the Court to delegate this issue to an arbitrator. Reply at 2
(citing Rent-A-Center, W., Inc. v. Jackson, 561 U.S.
at 69 n.1). Good Samaritan also argues that Ruppelt v.
Laurel Healthcare Providers, LLC, 2013-NMCA-014, 293
P.3d 902, even if applicable, was about a different issue --
waiver of a delegation argument and that Ruppelt v.
Laurel Healthcare Providers, LLC, stands for the
proposition that “a district court is precluded from
deciding a party's claim of unconscionability unless that
claim is based on the alleged unconscionability of the
delegation provision itself.” Reply at 3. Good
Samaritan contends that Hatton's remaining arguments
about SM Gantz' authority, SM Gantz' procedural
oversights, and unconscionability, are irrelevant.
See Reply at 1.
Good
Samaritan argues that, even if the Court concludes that it
can decide whether SM Gantz had authority to sign the
arbitration provision, SM Gantz had that authority.
See Reply at 4. Good Samaritan insists that the
Letter of Temporary Guardianship's statement that SM
Gantz could make decisions regarding Moreno's medical and
psychiatric care, residential placement, safety and
supervision encompass “selecting a dispute resolution
mechanism.” Reply at 4. Hatton's arguments to the
contrary, Good Samaritan adds, are unavailing, because the
state court's order appointing SM Gantz as guardian
signaled that Moreno needed help “managing her property
and financial affairs.” Reply at 4. Good Samaritan
further asserts that the New Mexico guardianship statutes
requiring the court order to specify what rights are divested
supports Good Samaritan's position, because the
“Letters of Temporary Guardianship authorized Mr. Gantz
to admit Ms. Moreno to Betty Dare, ” so,
“concomitantly, divested [Moreno] of those
rights.” Reply at 5. Good Samaritan asserts that,
contrary to Hatton's argument that Barron v.
Evangelical Lutheran Good Samaritan Soc'y,
2011-NMCA-094, 265 P.3d 720, requires the Court to conclude
that SM Gantz lacked authority to waive Moreno's right to
a jury trial, “Barron's fundamental
holding is that the authority to admit a resident includes
the authority to agree to arbitration, even when the resident
is unaware of the arbitration agreement.” Reply at 6.
Good
Samaritan also argues that SM Gantz was not required to
observe certain “protocols” before waiving
Moreno's right to a jury trial. Reply at 6. According to
Good Samaritan, there is no strong presumption in New Mexico
against waiving constitutional rights, especially
“where, as here, election in favor of arbitration was
optional.” Reply at 6 (citing Truong v. Allstate
Ins. Co., 2008-NMCA-051, ¶¶ 21-25, 182 P.3d
814, rev'd on other grounds, 2010-NMSC-009, 227 P.3d 73).
Good Samaritan adds that Hatton's protocol argument is
contrary to Barron v. Evangelical Lutheran Good Samaritan
Soc'y, 2011-NMCA-094, 265 P.3d 720, because, in that
case, an agent “did not have to inquire about the
principal's preferences before waiving a jury
trial.” Reply at 7 (citing Barron v. Evangelical
Lutheran Good Samaritan Soc'y, 2011-NMCA-094, 265
P.3d 720). Good Samaritan avers, moreover, that New Mexico
guardianship statutes recognize that “a guardian may
not be able to know an incapacitated person's
‘values, '” so the law does not require SM
Gantz to “ascertain Ms. Moreno's preferences prior
to electing arbitration.” Reply at 7 (citing NM Stat.
Ann. § 45-5-312(B)(3)). Finally, it argues that the FAA
precludes a requirement that SM Gantz follow certain
procedures before waiving Moreno's jury right, because
that ruling would “place the Arbitration Provision on
an unequal footing from the other provisions of the Admission
Agreement.” Reply at 8 (citing Allied-Bruce
Terminix Cos. Inc. v. Dobson, 513 U.S. 265, 281 (1995)).
Good Samaritan also argues that it is not required to
demonstrate that “waiving a jury trial is in
[Moreno's] best interest, ” because it is
inconsistent with caselaw concluding that arbitration
“generally costs less than litigation and leads to a
quicker resolution.” Reply at 8-9 (citing Barron v.
Evangelical Lutheran Good Samaritan Soc'y,
2011-NMCA-094, ¶ 41, 265 P.3d at 732).
Good
Samaritan finally argues that the arbitration provision is
not unconscionable for four reasons. First, Good Samaritan
asserts that the arbitration provision is not one-sided,
because the provision covers, among other things, “all
other disputes” and “any legal controversy,
” and, thus “requires both parties to submit all
claims to the arbitrator.” Reply at 9-10. Good
Samaritan adds that the reference to court costs in another
portion of the agreement makes sense, because the arbitration
provision is optional. See Reply at 9. Second, Good
Samaritan argues that Hatton fails to meet her burden that
the arbitration provision's cost sharing is prohibitive
or “that she would be prevented from vindicating her
rights, ” because Hatton produced no evidence on the
matter. Reply at 10-11. In addition, Good Samaritan asserts
that the arbitration provision “does not mandate
payment of costs, ” but instead notes that a person
might have to pay a fee, and that “any costs will be
shared equally.” Reply at 11. Third, Good Samaritan
argues that Hatton has cited no New Mexico caselaw concluding
that a confidentiality agreement can be unconscionable, and
stresses here that “[t]he fact specific nature of
[Hatton's] claims make it unlikely that Good Samaritan
would obtain an advantage or information that could benefit
it.” Reply at 11. Good Samaritan adds that Hatton might
benefit from the confidentiality agreement, because Hatton
may be able to keep confidential any medical issues Moreno
had and “the reasons for her placement with Adult
Protective services.” Reply at 11. Good Samaritan avers
that, if the Court is inclined to hold the cost-sharing or
confidentiality provisions unconscionable, they could be
severed, because “they are not so central ‘to the
agreement that they are incapable of separation from the
agreement to arbitrate.'” Reply at 11 n.6 (quoting
Figueroa v. THI of New Mexico at Casa Arena Blanca,
LLC, 2013-NMCA-077, ¶ 39, 306 P.3d 480, 494).
Fourth, the arbitration provision is not procedurally
unconscionable, according to Good Samaritan, because the
parties are required “to agree to a set of rules”
and, thus, the procedure “is reasonable and fair to
both sides.” Reply at 12 (emphasis omitted). Good
Samaritan adds that procedural unconscionability requires
more than just “the absence of rules” but other
“indicia of unconscionability, not present here.”
Reply at 12 (citing e.g., Lucas v. Gund,
Inc., 450 F.Supp.2d 1125, 1131 (C.D. Cal.
2006)(Rafeedie, J.).
4.
The Hearing.
The
Court held a hearing on May 2, 2017. See Draft
Transcript of Motion Hearing (taken May 2,
2017)(“Tr.”).[1] Good Samaritan opened by noting that
the state court had issued a stay in the State Court Action,
and Good Samaritan requested that the Court to enter an order
or another preliminary ruling before August 11, 2017 -- the
date the stay expired. See Tr. at 3:12-16; 4:10- 11
(Bennett). Based on the state court already entering a stay,
Good Samaritan admitted that the stay relief it requests in
its Motion to Compel “has been rendered moot.”
Tr. at 4:7-9 (Bennett). Good Samaritan requested that the
Court should “compel the parties or order the parties
to follow the language of the arbitration provision”
and to take some time, “perhaps 10 to 14 days, to agree
on a mutually acceptable arbitrator, ” and, if the
parties cannot agree, the Court should appoint one. Tr. at
6:3-10 (Bennett). Good Samaritan maintained that the
threshold issues are the Delegation Clauses in the
Arbitration Agreement and that contract formation issues
“can be delegated to an arbitrator.” Tr. at
7:20-23 (Bennett). Good Samaritan acknowledged “the
[Supreme] Court has identified some tension between the case
law construing delegation clauses, and case law construing
the FAA generally, ” but it thought that a
contract's existence and formation were “gateway
issues that can be delegated to the arbitrator, ” and
that Good Samaritan's arbitration provision “does
delegate those [issues] to the arbitrator.” Tr. 8:3-6;
8:11-17 (Bennett). After the Court inquired whether there was
also a tension between the “general rule that [the]
Court has to first determine whether the contract and
specifically the arbitration clause are valid, ” Good
Samaritan responded that Rent-A-Center concluded
that a court can “sever a delegation clause from an
otherwise invalid arbitration provision, and . . . look to
the validity [of the] the formation existence of a delegation
clause apart from” the rest of the arbitration clause,
and, in fact, the FAA requires a court to do that analysis.
Tr. at 8:18-24; 9:4-12 (Bennett, Court).
Regarding
whether, as a non-signatory, Hatton is bound, Good Samaritan
argued that SM Gantz' “letter of temporary
guardianship” grants him “the ability to bind Ms.
Moreno.” Tr. at 12:19-23 (Bennett). Hatton countered
that SM Gantz lacked the authority to enter into a voluntary
Arbitration Agreement on Moreno's behalf, and that
“[t]he circumstances of a temporary guardian is very
limited to the power and authority that he was given under
the temporary letters.” Tr. at 14:20-23; 17:23-18:1
(Bossie). Reading from the order granting SM Gantz temporary
guardianship, Hatton asserted that SM Gantz'
“only” authority is to make “decisions
regarding medical, psychiatric, residential placement, safety
and supervision for Ms. Moreno, as reasonably necessary to
avoid immediate and irreparable harm.” Tr. at 50:1-8
(Bossie). Hatton argued that, although SM Gantz had authority
to make decisions regarding medical care, SM Gantz'
authority excluded agreeing to arbitrate, because the
Admission Agreement stated at the top: “Resident's
agreement to arbitrate dispute is not a condition of
admission or a continued stay.” Tr. at 15-20
(Bossie)(quoting Admission Agreement at 13 [at 21 on CM/ECF].
Hatton also asserted that caselaw from the Supreme Court of
Washington and from California courts supports the contention
that SM Gantz lacked authority, because those courts have
concluded that a guardian ad litem cannot waive an
individual's right to a jury trial without the
patient's informed consent. See Tr. at 17:6-14;
(Bossie). Hatton doubted that the guardian ever met or talked
with Moreno and argued that “there [are] multiple
disputed issues of fact that would have to be explored in
this case” to determine SM Gantz' authority to
enter an Arbitration Agreement, thus, requiring discovery.
Tr. at 14:23-15:7 (Bossie). The “bottom-line” for
Hatton was that “the Court needs to look at whether the
guardian had authority” to sign on Moreno's behalf
and that the Court did “not even [have] to get [to] the
delegation clause . . . if this is a void null contract,
” and requested that the Court “deny[] the motion
to compel arbitration” or issue an order allowing
Hatton “to depose Mr. Gantz” to determine whether
SM Gantz had authority to sign for Moreno. Tr. at 20:18-21:6
(Bossie). Hatton added that Barron v. The Evangelical
Lutheran Good Samaritan Society, 2011-NMCA-094, 265 P.3d
720, upon which Good Samaritan relied, is inapposite, because
the patient there gave “verbal actual and apparent
authority” for her guardian “to sign the
documents” so “[Barron v. The Evangelical
Lutheran Good Samaritan Society, 2011-NMCA-094, 265 P.3d
720] is not controlling whatsoever to the facts of this
case.” Tr. at 20:13-17 (Bossie). Whether SM Gantz had
authority, Hatton posited, was a question of fact that
“would be done by a jury” or that the Court could
determine the issue if there is no undisputed facts. Tr. at
21:23-25; 22:3-9 (Bossie).
Good
Samaritan rejoined that “[t]here is no need for
discovery here, ” because “Mr. Gantz should be
presumed to have acted in Ms. Moreno's best
interests” based on the state court's initial
determination to appoint him guardian. Tr. 24:15-25:3
(Bennett, Court). Good Samaritan argued that, although there
was a “temporary guardianship process” here that
“doesn't allow for the same protections as the full
guardianship process, ” the New Mexico statute
governing the temporary guardianship process requires the
district court to “find that appointing a temporary
guardianship is necessary to [] protect the allegedly
incapacitated person, ” which triggers a presumption.
Tr. at 26:13-20 (Bennett). Good Samaritan admitted, however,
that the FAA provides for a limited hearing when arbitration
provisions are at issue, and that “Judge Vazquez . . .
held a short sort of abbreviated bench trial” and that
type of proceeding would be appropriate. Tr. at 36:10-14
(Bennett).
Good
Samaritan also contended that N.M. Stat. Ann. § 45-5-312
-- the statute which Hatton employed to argue that SM
Gantz' authority is limited -- grants the guardian the
same power “just as a parent [has], vis-à-vis a
minor child.” Tr. at 27:12-21 (Bennett). According to
Good Samaritan, that statute also bestows a guardian the
power “to act as a decision maker on [a patient's]
behalf” and to “institute proceedings to protect
her financial affairs.” Tr. at 27:25-28:2 (Bennett).
Good Samaritan added that the statute does not suggest that
“a guardian has to inquire about an incapacitated
person's wishes or desires.” Tr. at 30:17-18
(Bennett). Good Samaritan argued that N.M. Stat. Ann. §
45-5-312's language that “the decision to consent
to or withhold treatment shall be made in accordance with the
values of the incapacitated person, if known, ” did not
compel a different answer, because the statute
“presumes” the guardian's “preexisting
knowledge by using the term if known.” Tr. at 30:2-10
(Bennett). Good Samaritan also countered Hatton's
suggestion that Barron v. The Evangelical Lutheran Good
Samaritan Society, 2011-NMCA-094, 265 P.3d 720, is
factually inapposite, because the patient there “had no
idea that the administration agreement contained an
arbitration provision, ” so the case “holds that
there is no requirement that a guardian or an agent [pursue]
a [re]quest to determine the principal or the ward's
desires.” Tr. at 33: 1-15 (Bennett).
Concerning
the Delegation Clauses, Hatton maintained her position that
those clauses are not a threshold issue, instead asserting
that “[the Court] do[es] not even [have] to reach the
delegation clause if [the Arbitration Agreement] is a void
unenforceable arbitration agreement.” Tr. at 18:19-25
(Bossie). Hatton subsequently argued that the Arbitration
Agreement as a whole was null and void, so the Court did not
have to reach the delegation issue. See Tr. at
22:23-23:1 (Bossie). Hatton conceded that, if she did not
persuade the Court that SM Gantz lacked authority to sign on
Moreno's behalf that “there is really no issue on
the delegation side from [Hatton].” Tr. at 23:19-24:1
(Bossie, Court). Good Samaritan replied that a recent United
States Court of Appeals for the Tenth Circuit decision,
Belnap v. Iasis Healthcare, 844 F.3d 1272 (10th Cir.
2017), concludes that arbitrability, not the guardian's
authority, “is the first question that this Court must
address.” Tr. at 34:9-18 (Bennett).
Turning
to unconscionability, Good Samaritan argued that there is
“nothing in the record that demonstrates that the
arbitration provision is grossly unfair or grossly burdens
the defendants' rights.” Tr. at 39:22-24 (Bennett).
Good Samaritan maintained its position that the arbitration
provision is not one-sided, because the agreement covers
disputes that both the residents and the nursing home bring,
and the collection agreement provision mentioning court costs
does not suggest otherwise, because residents can opt out of
arbitration at signing, so Good Samaritan must otherwise
reasonably reserve its court rights. See Tr. at
40:12-41:2 (Bennett). Good Samaritan also retained its
argument that the fee-sharing provision is not
unconscionable, because “the party opposing arbitration
has to show with individualized evidence that the cost
sharing provision is cost prohibit[ive], ” and that
Hatton has made no such showing. Tr. at 42:11-22 (Bennett).
Good Samaritan also preserved its position that the
confidentiality agreement is not unconscionable, because it
“has benefit to both sides” -- Hatton may want to
keep Moreno's medical information private. Tr. 44:1-7
(Bennett). Finally, Good Samaritan asserted that there is no
procedural unconscionability, because the provision
“allows the parties to select the rules” by which
the arbitrator must abide and that provision “seems to
me to be inherently fair.” Tr. at 44:23-25 (Bennett).
Responding
to the unconscionability arguments, Hatton argued that her
three arguments “taking all of them together as
building blocks . . . rises to the level, based on the law,
to be substantively unconscionable.” Tr. at 48:24-49:2
(Bossie). First, Hatton argued, the Arbitration
Agreement's one-sidedness indicates unconscionability,
because Good Samaritan drafted its own agreement, and it
drafted the collection cost provision mentioning
“attorneys' fees and court costs.” Tr. at
46:14-20 (Bossie). Hatton added that the dispute section
mentions specifically claims that will most often only be
resident rights claims: negligence, malpractice, tort claims,
and fraud. See Tr. at 47:4-12 (Bossie). Second,
Hatton asserted that the arbitration provision is
cost-prohibitive, because “[g]enerally an arbitrator
can run from 250 to 350 to 450 per hour . . ., [and that]
Moreno's estate . . . doesn't have any money to do
that.” Tr. 47:15-20 (Bossie). Third, Hatton argued that
the confidentiality agreement “benefits Good
Sam[aritan], ” especially in the punitive damages
inquiry, because it bars Hatton from obtaining information of
widespread harm to other “vulnerable adults.” Tr.
at 48:5-23 (Bossie). Hatton admitted, however, that the
confidentiality clause by itself would not rise to the level
of unconscionability. See Tr. at 48:5-7 (Bossie).
Good
Samaritan rejoined that the reference to court costs does not
necessarily mean that the clause captured only judicial court
costs, because “numerous courts . . . have held that
arbitrators, just like a court of law, can award
attorneys' fees and costs.” Tr. at 53:4-7
(Bennett). Good Samaritan argued that, although the
arbitration provision mentions specifically some claims, such
as breach of contract, negligence, and others, those claims
equally applied to residents and the nursing facility,
because breach of contract “would cover a collection
claim.” Tr. at 53:14-19 (Bennett). Good Samaritan
averred that, even if Hatton was right about those references
to claims applying disproportionately to residents, the FAA
preempts that argument, and the Supreme Court of New Mexico
has concluded that, “even when there is a chance that
another party is [the] most likely party to bring a certain
claim, that in and of itself does not render that provision
substantively unconscionable.” Tr. 54:1-10 (Bennett).
Turning to cost-sharing, Good Samaritan contended that there
is no evidence to suggest that Hatton could not pay for
arbitration and what evidence exists does not support a
cost-burden inference, because there is no record how much
the Estate has and “we actually don't know how much
the arbitration is going to cost.” Tr. at 54:11-55:3
(Bennett, Court). According to Good Samaritan, “the
parties have control over how much” the arbitration
will cost, because the parties select the arbitrator and the
rules. Tr. at 55:3-9 (Bennett).
Finally,
turning back to SM Gantz' authority, Good Samaritan
argued that the temporary guardian statute's language
about avoiding irreparable and immediate harm does not limit
the guardian's authority, because that language “is
the judicial prerequisite to finding and appointing a
temporary guardian, ” so “that [language] should
[not] be read as any limit on [SM Gantz']
authority.” Tr. at 58:18-24 (Bennett). Good Samaritan
asserted, again, that Barron v. The Evangelical Lutheran
Good Samaritan Society, supports this conclusion, and
that the Court should follow this Court of Appeals of New
Mexico's decision, because it is “based on
foundational principles of agency law, ” and that the
Court should defer to a state court decision on state law.
Tr. at 60:22-61:18 (Bennett).
LAW
REGARDING ARBITRATION AGREEMENTS
1.
Federal law.
“The
FAA reflects the fundamental principle that arbitration is a
matter of contract.” Rent-A-Center 561 U.S. at
67. “[T]he basic purpose of the Federal Arbitration Act
is to overcome courts' refusals to enforce agreements to
arbitrate.” Allied-Bruce Terminix Cos., Inc. v.
Dobson, 513 U.S. 265, 270 (1995). “The FAA thereby
places arbitration agreements on an equal footing with other
contracts, and requires courts to enforce them according to
their terms.” Rent-A-Center, West, Inc. v.
Jackson, 561 U.S. at 67-68.
Under
§ 4 of the FAA, a party “aggrieved” by the
another party's failure “to arbitrate under a
written agreement for arbitration” may petition a
federal court “for an order directing that such
arbitration proceed in the manner provided for in such
agreement.” 9 U.S.C. § 4. If a party is aggrieved
by the refusal of another to arbitrate under a written
agreement, the district court, upon petition, “shall
hear the parties, and upon being satisfied that the making of
the agreement for arbitration or the failure to comply
therewith is not in issue, the court shall make an order
directing the parties to proceed to arbitration in accordance
with the terms of the agreement.” 9 U.S.C. § 4.
Section 2, the “primary substantive provision of the
Act, ” Moses H. Cone Mem'l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983), provides: “A
written provision in . . . a contract evidencing a
transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract . . .
shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of
any contract.” 9 U.S.C. § 2. “If a party
challenges the validity under § 2 of the precise
agreement to arbitrate at issue, the federal court must
consider the challenge before ordering compliance with that
agreement under § 4.” Rent-A-Center, 561
U.S. at 71. “[T]he basis of challenge [must] be
directed specifically to the agreement to arbitrate before
the court will intervene.” Rent-A-Center, 561
U.S. at 71.
The FAA
also indicates that, upon a finding that a matter is
referable to arbitration, the district court “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.” 9 U.S.C. § 3.
Notwithstanding 9 U.S.C. § 3's terms, however,
several Courts of Appeal have concluded that “dismissal
is a proper remedy when all of the issues presented in a
lawsuit are arbitrable.” Choice Hotels Int'l,
Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10
(4th Cir. 2001). See Green v. Ameritech Corp., 200
F.3d 967, 973 (6th Cir. 2000)(“The weight of authority
clearly supports dismissal of the case when all of the issues
raised in the district court must be submitted to
arbitration.”); Bercovitch v. Baldwin Sch.,
Inc., 133 F.3d 141, 156 n.21 (1st Cir. 1998); Alford
v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th
Cir. 1992); Sparling v. Hoffman Constr. Co., 864
F.2d 635, 638 (9th Cir. 1988).
The
Tenth Circuit has, correctly, cautioned that, when one of the
parties petitions the court to stay an action pending
compulsory arbitration, 9 U.S.C. § 3's mandatory
language is binding and that it is error for the court to
dismiss the action. See Adair Bus Sales, Inc. v. Blue
Bird Corp., 25 F.3d 953, 955 (10th Cir. 1994). When,
however, the party seeking to compel arbitration requests the
court for dismissal, and there is no evidence in the record
of any party requesting a stay, it is not error for the
district court to dismiss the case. See Armijo v.
Prudential Ins. Co. of Am., 72 F.3d 793, 797 (10th Cir.
1995); Cornoyer v. AT&T Mobility Servs., LLC,
No. CIV 15-0474 JB/WPL, 2016 WL 6404853, at *7-8 (D.N.M. Oct.
5, 2016)(Browning, J.).
2.
Ne ...