Opinion
No. 16-6373
11-08-2017
DIVERSICARE LEASING CORPORATION, d/b/a Wurtland Nursing & Rehabilitation Center; OMEGA HEALTHCARE INVESTORS, INC.; DIVERSICARE HEALTHCARE SERVICES, INC.; DIVERSICARE MANAGEMENT SERVICES CO., Plaintiffs-Appellees, v. ANNETTE HALL, Executor of the Estate of Alliene Menshouse, Defendant-Appellant.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0618n.06 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
OPINION
Before: DAUGHTREY, MOORE, and SUTTON, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Annette Hall ("Hall"), Executor of the Estate of Alliene Menshouse, appeals the district court's denial of her motion for relief. Plaintiffs-Appelles Diversicare Leasing Corp., d/b/a Wurtland Nursing & Rehabilitation Center; Omega Healthcare Investors, Inc.; Diversicare Healthcare Services, Inc.; and Diversicare Management Services Co. (together, "Diversicare") filed a motion to dismiss Hall's appeal for lack of jurisdiction. Because the district court (1) compelled arbitration, (2) stayed the district-court action, and (3) enjoined the state-court action, we do not have jurisdiction. Therefore, we GRANT Diversicare's motion and DISMISS Hall's appeal.
I. BACKGROUND
Hall, as the Executor for Alliene Menshouse's Estate, filed an action in Kentucky state court against Diversicare ("state-court action"). See R. 1-2 (Compl. Ex. B) (Page ID #11). Diversicare then filed an action in the United States District Court for the Eastern District of Kentucky to compel Hall to arbitrate her claims ("district-court action"). See R. 1 (Compl.) (Page ID #1). After reviewing the arbitration agreement, the district court issued an order (1) granting Diversicare's motion to compel arbitration, (2) staying the district-court action, and (3) enjoining Hall from proceeding in her state-court action. R. 14 (Order at 16-17) (Page ID #211-12). Hall then requested the district court to reexamine its order, R. 15 (Mot.) (Page ID #213), which the district court denied, R. 19 (Order at 3) (Page ID #244). Because the district court denied her motion, Hall filed this appeal. R. 21 (Notice) (Page ID #247). Diversicare now argues that we do not have appellate jurisdiction. Appeal R. 13 (Mot.).
II. DISCUSSION
We have jurisdiction to review a final district-court order. 28 U.S.C. § 1291. A litigant may appeal "a final decision with respect to an arbitration that is the subject of this title." 9 U.S.C. § 16(a)(3). However, "[e]xcept as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order" that (1) directs the litigants to arbitrate their action, 9 U.S.C. § 16(b)(2), or (2) stays the district-court action pending arbitration proceedings, id. § 16(b)(1). To use the exception to the finality requirement for controlling questions of law under § 1292(b), a litigant must receive certification from the district court.
We also have jurisdiction to review an order granting an injunction. 28 U.S.C. § 1292(a)(1). But we have recently decided that § 16(b)(2) prevents a litigant from appealing an order enjoining a state-court action covered by an arbitration clause. Preferred Care of Del., Inc. v. Estate of Hopkins, 845 F.3d 765, 768-69 (6th Cir. 2017) (holding that court lacked appellate jurisdiction because § 16(b) prevents this court from reviewing an order compelling arbitration, staying the district-court action, and enjoining the plaintiff from continuing its state-court action). And a litigant cannot use § 1292(a)(1) "to create an exception to the bar on appeals of orders directing arbitration or enjoining state or federal court litigation during the arbitration." Id. at 769.
We do not have jurisdiction over Hall's appeal. First, the district court ordered Hall to "prosecute all of her claims arising out of Alliene Menshouse's residency at Wurtland Nursing & Rehabilitation Center in accordance with the terms of the arbitration agreement," which § 16(b)(2) prevents us from reviewing. R. 14 (Order at 17) (Page ID #212). Similarly, § 16(b)(1) thwarts our review of the district court's decision to stay its action. Id. And our decision in Preferred Care precludes review of the district court's decision to enjoin Hall from pursuing her claims in her state-court action. R. 10 (Mot. at 1) (Page ID #119); R. 14 (Order at 16) (Page ID #211). Finally, Hall did not receive § 1292(b) certification from the district court. Therefore, we must dismiss Hall's appeal for lack of jurisdiction.
III. CONCLUSION
For the reasons discussed above, we GRANT Diversicare's motion and DISMISS Hall's appeal.