                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0124n.06

                                        Case No. 16-6168
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                          Feb 24, 2017
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk



BRANDENBURG HEALTH FACILITIES, et                   )
al.,                                                )
                                                    )
       Plaintiffs-Appellees,                        )       ON APPEAL FROM THE UNITED
                                                    )       STATES DISTRICT COURT FOR
v.                                                  )       THE WESTERN DISTRICT OF
                                                    )       KENTUCKY
IVYE MATTINGLY, Administratrix of the               )
estate of Mary Jo Hancock,                          )
                                                    )
       Defendant-Appellant.                         )

BEFORE: BOGGS, SILER, and MOORE, Circuit Judges.

       SILER, Circuit Judge. Ivye Mattingly appeals the district court’s grant of Plaintiffs’

motion to compel arbitration and enjoin state court proceedings. The Plaintiffs filed a motion to

dismiss Mattingly’s appeal for lack of appellate jurisdiction. Since the district court stayed the

case pending the completion of arbitration, the district court has not issued a final order, and we

have no jurisdiction over Defendant’s appeal. For this reason, the Plaintiffs’ motion to dismiss

the appeal is GRANTED and the appeal is DISMISSED.

                     FACTUAL AND PROCEDURAL BACKGROUND

       Mattingly is the administratrix of Mary Jo Hancock’s estate. Hancock was a resident at a

nursing home owned and operated by the Plaintiffs (collectively “Preferred Care”). In 2007,

before entering into the facility operated by Preferred Care, Hancock executed a durable power
Case No. 16-6168, Brandenburg Health Facilities, et al. v. Mattingly


of attorney granting Mattingly the authority to “make and enter into any contract or contractual

arrangement.” Mattingly brought a claim in state court on behalf of Hancock alleging that

Hancock suffered physical and emotional injuries as a result of negligent care provided by

Preferred Care in 2013. Preferred Care filed a motion to dismiss that lawsuit for failure to

properly file suit as a next friend. Preferred Care also filed a motion to compel arbitration as

contemplated in the parties’ agreement based on the Federal Arbitration Act (“FAA”). The state

court did not rule on the motion to compel arbitration, instead holding the case in abeyance

pending a decision by the Kentucky Supreme Court. After Extendicare Homes, Inc. v. Whisman,

478 S.W.3d 306 (Ky. 2015), was issued, Preferred Care brought a complaint in federal court

seeking to compel arbitration. The district court granted the motion to compel arbitration,

enjoined Mattingly from pursuing her claims in state court except for the wrongful death claim,

and stayed the federal case pending the conclusion of arbitration.

                                   STANDARD OF REVIEW

       We must determine for ourselves whether this court has jurisdiction over an interlocutory

appeal. See Crockett v. Cumberland Coll., 316 F.3d 571, 577 (6th Cir. 2003). Review of

whether the district court violated the Anti-Injunction Act is de novo. Six Clinics Holding Corp.,

II v. Cafcomp Sys., Inc., 119 F.3d 393, 397 (6th Cir. 1997).

                                          DISCUSSION

       Preferred Care moves to dismiss this appeal for lack of appellate jurisdiction under 6th

Cir. R. 27(d)(1). The basis of this motion is Preferred Care’s assertion that the district court’s

order was an interlocutory order which cannot be appealed pursuant to the text of the FAA.

       The text of the district court order is important in assessing our jurisdiction:

       (1) Plaintiffs’ motion to compel arbitration and enjoin the state court action is
       GRANTED. Mattingly is ENJOINED from proceeding against Plaintiffs in the

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Case No. 16-6168, Brandenburg Health Facilities, et al. v. Mattingly


        Meade Circuit Court action on all but the wrongful-death claim. The parties are
        COMPELLED to arbitrate pursuant to the terms of the parties’ agreement the
        claims which are the subject of Mattingly’s Meade Circuit Court complaint,
        excluding only the wrongful-death claim. Counsel shall promptly inform the
        Meade Circuit Court of this Memorandum Opinion and Order.

        (2) Pursuant to 9 U.S.C. § 3, this proceeding is STAYED until the conclusion of
        the ordered arbitration, at which time the Court will decide whether to enter
        judgment approving any arbitral award. The parties shall submit a joint status
        report every ninety (90) days from the date of entry of this Order until the
        resolution of the arbitration. The parties shall promptly report on the resolution of
        the arbitration, or of any settlement.

The critical language for the jurisdictional analysis is subpart (2) staying the case pending the

completion of arbitration under 9 U.S.C. § 3. Since the case was stayed under 9 U.S.C. § 3, an

appeal cannot be taken from the order under 9 U.S.C. § 16(b)(1) unless otherwise provided for in

28 U.S.C. § 1292(b). Section 1292(b) requires a district judge to state in writing in the relevant

interlocutory order that the order involves a controlling question of law whose resolution may

materially advance completion of the litigation, but the district court did not make such a finding

here.

        In an attempt to circumvent this textual bar on appellate jurisdiction, Mattingly cites a

case from the Ninth Circuit where that court held that “where an order compelling arbitration is

inextricably bound up with an injunction order, [appellate courts] have jurisdiction to review

both orders under 28 U.S.C. § 1292(a).” Quackenbush v. Allstate Ins. Co., 121 F.3d 1372, 1379

(9th Cir. 1997) (internal quotation omitted). This authority runs directly counter to our ruling in

Preferred Care of Delaware, Inc. v. Estate of Hopkins by & through Hopkins addressing an

almost identical scenario. 845 F.3d 765 (6th Cir. 2017).

        There is similarly no jurisdiction over Mattingly’s appeal of the district court’s injunction

of Mattingly’s proceeding on certain claims in state court. The district court has the authority



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Case No. 16-6168, Brandenburg Health Facilities, et al. v. Mattingly


under § 4 of the FAA to direct arbitration to proceed in accordance with the terms of the

arbitration agreement.    This arbitration clause does not allow litigation to proceed while

arbitration is ongoing. Since the injunction was entered pursuant to § 4 of the FAA, review of it

is foreclosed by 9 U.S.C. § 16(b)(2). See id. at 768-69.

       Mattingly also challenges the state-court injunction as it pertains to the Kentucky

defendants. Since those defendants could not have participated in federal litigation premised

upon diversity of citizenship, she argues that she should be allowed to pursue her claims against

them in state court. This argument fails to grasp that the district court’s jurisdiction is predicated

upon the FAA, a federal statute conferring federal question jurisdiction under 28 U.S.C. § 1331.

       For the foregoing reasons, the appeal is DISMISSED.




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