               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0618n.06

                                          No. 16-6373

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


DIVERSICARE LEASING CORPORATION,                  )                  FILED
d/b/a Wurtland Nursing & Rehabilitation Center;   )            Nov 08, 2017
OMEGA HEALTHCARE INVESTORS, INC.;                 )        DEBORAH S. HUNT, Clerk
DIVERSICARE HEALTHCARE SERVICES,                  )
INC.; DIVERSICARE MANAGEMENT                      )       ON APPEAL FROM THE
SERVICES CO.,                                     )       UNITED STATES DISTRICT
                                                  )       COURT FOR THE EASTERN
        Plaintiffs-Appellees,                     )       DISTRICT OF KENTUCKY
                                                  )
v.                                                )
                                                  )                OPINION
ANNETTE HALL, Executor of the Estate of           )
Alliene Menshouse,                                )
                                                  )
        Defendant-Appellant.                      )
                                                  )


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.
No. 16-6373
Diversicare Leasing Corp et al. v. Hall


                                       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.



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No. 16-6373
Diversicare Leasing Corp et al. v. Hall


        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.




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No. 16-6373
Diversicare Leasing Corp et al. v. Hall


                                     III. CONCLUSION

          For the reasons discussed above, we GRANT Diversicare’s motion and DISMISS Hall’s

appeal.




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