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,
BEATRICE MORENO, deceased, by the personal representative of the wrongful death estate, MONICA CRUZ HATTON, Defendant.
G. Brown Deana M. Bennett J Zoe E. Lees Jeremy K. Harrison
Modrall, Sperling, Roehl, Harris & Sisk, PA Albuquerque,
New Mexico Attorneys for the Plaintiff
Ellen Reilly Wayne T. Freeland Wilkes & McHugh, P.A.
Phoenix, Arizona Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant's
Motion for Appointment of a Neutral Arbitrator, filed June 7,
2018 (Doc. 20)(“Motion”). The Court held a
hearing on January 7, 2019. See Clerk's Minutes
at 1, filed January 7, 2019 (Doc. 25). The primary issue is
who from among the following individuals the Court, pursuant
to the Federal Arbitration Act, 9 U.S.C. §§ 1-14
(“FAA”), should appoint as a neutral arbitrator
in this matter: (i) the Honorable James Hall, former state
District Judge for the First Judicial District of the State
of New Mexico; (ii) Mr. William Madison of Madison, Mroz,
Steinman & Dekleva, P.A.; (iii) Mr. Bruce Hall of Rodey,
Dickason, Sloan, Akin, & Robb, P.A.; (iv) the Honorable
Bruce Black, former United States of America District Judge
for the District of New Mexico; (v) the Honorable William P.
Lynch, former United States Magistrate Judge for the District
of New Mexico; or (vi) the Honorable Alan Torgerson, former
United States Magistrate Judge for the District of New
Mexico. The Court concludes that it will appoint an
arbitrator in this matter and that it will appoint Judge Hall
as the arbitrator.
Court recited the factual background and early procedural
history in its Memorandum Opinion and Order, filed September
29, 2017, 277 F.Supp.3d 1191 (Doc. 19)(“MOO”).
The Court incorporates that recitation here. The Court takes
its facts from the Complaint to Compel Arbitration and
Petition for Appointment of Arbitrator, filed December 13,
2016 (Doc. 1)(“Complaint”). The Court provides
these facts for background. It does not adopt them as the
truth, and it recognizes that these facts are largely
Plaintiff the Evangelical Lutheran Good Samaritan Society,
d/b/a Good Samaritan Society -- Betty Dare's (“Good
Samaritan”) version of events.
Good Samaritan owns and operates a nursing home in
Alamogordo, New Mexico. See Complaint . . . ¶
1[, ] at 1 . . . . On February 27, 2014, Good Samaritan
admitted [Defendant Beatrice ]Moreno into that nursing home,
and she lived there until her death on August 26, 2015.
See Complaint ¶¶ 8, 19, at 2, 5;
[Plaintiffs Motion to Compel Arbitration and Petition for
Appointment of Arbitrator at 1, filed December 13, 2016 (Doc.
3)(“Motion to Compel”)]. 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 Society Admission Agreement (dated
February 27, 2014), filed December 13, 2016 (Doc. 1
-1)(“ Admission Agreement”)] on Moreno's
behalf. See Complaint ¶ 8, at 2-3; . . .
Admission Agreement at 14-15 . . . . 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 [¶¶ A-E, ] at
13-14 . . .; 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 [¶ C, ] at 13 . . . . SM Gantz
elected to arbitrate disputes on Moreno's behalf.
See Complaint ¶ 18, at 5; Admission Agreement
at 14 . . . .
2, 277 F.Supp.3d at 1197.
Admission Agreement contains two sentences relevant to
choosing an arbitrator. See Admission Agreement
¶¶ C-D, at 13-14. First, the Admission Agreement
provides: “The Parties shall work together in good
faith to select a mutually agreeable individual arbitrator or
a nationally recognized arbitration service provider.”
Admission Agreement ¶ C, at 13. Second, the Admission
Agreement states: “The Parties agree that in the event
they are unable to agree upon selection of a mutually
agreeable individual arbitrator or nationally recognized
arbitration service provider, Section 5 of the FAA shall
control.” Admission Agreement ¶ D, at 14.
After Moreno died on August 26, 2015, Moreno's daughter,
Monica Cruz Hatton, was appointed personal representative of
Moreno's estate. [See Complaint ¶ 20, at
5-6.] Hatton subsequently filed a lawsuit in the Twelfth
Judicial District Court [of New Mexico] 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
4, 277 F.Supp.3d at 1198.
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.
4-5, 277 F.Supp.3d at 1197-98. In the MOO, the Court stayed
the case and ordered that the parties pursue arbitration.
See MOO at 74, 277 F.Supp.3d at 1239. More than six
months after the Court filed the MOO, Hatton filed the
Motion, complaining that the parties could not agree to an
arbitrator. See Motion at 3.
asks that, because over six months have passed since the
Court ordered arbitration and the parties have yet to agree
to an arbitrator, the Court appoint a neutral arbitrator.
See Motion at 2. Hatton encourages the Court to
choose Mr. Madison. See Motion at 2. Hatton explains
that, under the arbitration agreement, when the parties
cannot agree to a neutral arbitrator, the FAA's § 5
controls. See Motion at 1 (citing Arbitration
Agreement at 13-14). According to Hatton, § 5 provides
that the court shall “designate and appoint an
arbitrator” “if for any reason there shall be a
lapse in the naming of an arbitrator.” Motion at 1
(quoting 9 U.S.C. § 5). Hatton explains that, in
discussions with Good Samaritan, she proposed Mr. Madison;
Mr. Hall; Mr. Paul Bardacke of Bardacke Allison; and Mr.