United States District Court, N.D. Indiana, South Bend Division
KEITH BIXLER, as Special Personal Representative of the Estate of Paula Bixler, Deceased, Plaintiff,
ELKHART OPERATING, LLC, d/b/a Golden Living Center-Elkhart, et al., Defendants.
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge
2, 2017, Defendant, Elkhart Operating, LLC d/b/a Golden
Living Center-Elkhart (“Golden”), filed its
Motion to Compel Arbitration and to Stay the Lawsuit Pending
Alternative Dispute Resolution Proceedings. Plaintiff, Keith
Bixler, as Special Personal Representative of the Estate of
Paula Bixler, filed his response in opposition on June 20,
2017. Golden's motion became ripe on June 27, 2017, when
Golden filed its reply brief. The undersigned may enter a
ruling on this motion based on the parties' consent and
28 U.S.C. § 636(c).
March 26, 2015, Paula Bixler was admitted to Golden for care
related to health issues. As part of the admission process,
Mrs. Bixler signed and executed an Admission Agreement, the
Preamble of which reads:
This Admission Agreement is a legally binding contract that
defines the rights and obligations of each person (or party)
who signs it. Please read this Agreement carefully before you
sign it. If you have any questions, please discuss them with
LivingCenter staff before you sign the Agreement. You are
encouraged to have this Agreement reviewed by your attorney,
or by any other advisor of your choice, before you sign it.
If you are able to do so, you must sign this Agreement in
order to be admitted to this LivingCenter. If you are not
able to sign this Agreement, your Legal Representative, who
has been given authority by you to admit you to the
LivingCenter, must sign it on your behalf. . . . You are not
required to sign any other document as a condition of
admission to the LivingCenter.
[DE 28-1 at 3]. In addition, Mrs. Bixler signed and
executed a separate Alternative Dispute Resolution Agreement
(“ADR Agreement”), which explicitly started with
the statement in all caps that “THIS AGREEMENT IS
NOT A CONDITION OF ADMISSION TO OR CONTINUED
RESIDENCE IN THE FACILITY.” [DE 28-2 at 1].
Agreement begins by identifying Mrs. Bixler as the
“Resident” governed by the Agreement and defines
the term “Resident” as follows:
The term “Resident” as used in this Agreement
shall refer to the Resident, all persons whose claim is or
may be derived through or on behalf of the Resident,
including any next of kin, guardian, executor, administrator,
legal representative, or heir of the Resident, and any person
who has executed this Agreement on the Resident's behalf.
[Id.]. As relevant here, the ADR Agreement, which
includes a provision incorporating it into the Admission
Agreement, required that the parties pursue mediation, or if
unsuccessful, binding arbitration to resolve any disputes
“arising out of or in any way relating to [the ADR]
Agreement or to the Resident's stay at the Facility
[i.e., Golden] or the Admissions Agreement between
the Parties . . . .” [Id. at 1-2]. As defined
in the ADR Agreement, disputes subject to the parties'
voluntary agreement to participate in ADR
include but are not limited to all claims in law or equity
arising from one Party's failure to satisfy a financial
obligation to the other Party; a violation of a right claimed
to exist under federal, state, or local law or contractual
agreement between the Parties; tort; breach of contract;
consumer protection; fraud; misrepresentation; negligence;
gross negligence; malpractice; and any alleged departure from
any applicable federal, state, or local medical, health care,
consumer, or safety standards.
[Id. at 2].
residing at Golden, Mrs. Bixler developed a Stage IV
decubitus ulcer, which led to sepsis and ultimately Mrs.
Bixler's death on August 26, 2015. On August 11, 2016,
Plaintiff, in his capacity as Mrs. Bixler's husband and
as Special Representative of her estate, initiated this
action with a complaint in Indiana state court alleging
wrongful death under Ind. Code § 34-23-1 et
seq. [DE 5]. In his complaint, Plaintiff specifically
alleges that Golden was careless and negligent and breached
the applicable standard of care in its treatment of Mrs.
Bixler. [Id. at 4, ¶¶ 13-14]. Plaintiff
further alleges that he suffered injury in the form of lost
love, affection, companionship, and services of his wife as a
direct and proximate result of Golden's carelessness and
September 16, 2016, Golden removed the case to this Court. On
October 3, 2016, Golden filed its answer asserting three
affirmative defenses, including lack of subject matter
jurisdiction based on the ADR Agreement's arbitration
requirement. [DE 7 at 5]. On November 18, 2016, the parties
filed their Rule 26(f) Report of Parties' Planning, which
made no mention of the arbitration requirement but reported
the parties' agreement to a trial before a United States
Magistrate Judge and the parties' preference for
“use of a settlement conference presided over by a
magistrate judge rather than a privately arranged alternative
dispute resolution” with a statement that “if the
need for privately arranged alternative dispute resolution
arises, the ...