Legal Document: Mccormick By Zaccone Vs Brookdale Evesham

On May 01, 2023 a MOTION DISMISSING COMPLAINT submitted by FISHBEIN, JOEL, I of LITCHFIELD CAVO LLP on behalf of BROOKDALE SENIOR LIVING LLC, BROOKDALE EVESHAM, BLC-BRENDENWOOD LLC, BROOKDALE PROVIDEN, BROOKDALE SENIOR LIVING INC ET AL. against MARY ZACCONE, JANE DOE NURSES (1-20), JANE MOE TECHNICIANS,, ABC COMPANIES (1-10), JOHN DOE PHYSICIANS (1-10) *LINKED FILING* was filed involving a dispute between Mary Zaccone, and 0) Jane Doe Nurses (1-2, , Abc Companies, Blc-Brendenwood Llc, Brookdale Evesham, Brookdale Living Communities, Brookdale Providen, Brookdale Senior Housing Llc, Brookdale Senior Living Inc, , Jane Moe Technicians, for Professional Malpractice in the District Court of Burlington County.

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LITCHFIELD CAVO LLP
An Illinois Limited Liability Partnership
Suite 1220
1515 Market Street
Philadelphia, PA 19102
215-999-5571
By: Joel I. Fishbein., Esquire, Attorney I.D. No. 17181989
Attorneys for Defendants, Brookdale Evesham; BLC-Brendenwood, LLC, Brookdale
Providen, Brookdale Senior Living, Inc, Brookdale Living Communities of New Jersey d/b/a
Brookdale Evesham, Brookdale Senior Living, LLC, and Brookdale Senior Housing, LLC

ELIZABETH McCORMICK, by and through :
Power of Attorney, MARY ZACCONE : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION
Plaintiff, : MERCER COUNTY
:
v. : Docket No. BUR-L-000852-23
:
BROOKDALE EVESHAM; BLC- :
BRENDENWOOD, LLC; BROOKDALE :
PROVIDEN; BROOKDALE SENIOR :
LIVING, INC; BROOKDALE LIVING :
COMMUNITIES OF NEW JERSEY D/B/A : NOTICE OF MOTION
BROOKDALE EVESHAM; BROOKDALE :
SENIOR LIVING, LLC; BROOKDALE :
SENIOR HOUSING, LLC; ABC :
COMPANIES (1-10); JOHN DOE :
PHYSICIANS (1-10); JANE DOE NURSES :
(1¬20); JANE MOE TECHNICIANS, CNAs :
AND PARAMEDICAL EMPLOYEES (1-
20),
Defendants.

TO: David R. Cohen, Esquire
331 Newman Springs Road, Building 1, Fourth Floor, Suite 143
Red Bank, New Jersey 07701

PLEASE TAKE NOTICE that the undersigned attorneys for Defendants Brookdale

Evesham; BLC-Brendenwood, LLC, Brookdale Providen, Brookdale Senior Living, Inc,

Brookdale Living Communities of New Jersey d/b/a Brookdale Evesham, Brookdale Senior

Living, LLC, and Brookdale Senior Housing, LLC will apply to the Superior Court of New Jersey,

Law Division, located at the Burlington County Courthouse, 49 Rancocas Rd, Mt Holly, NJ 08060,
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on the ____ day of September, 2023 at 9:00 a.m. or as soon thereafter as counsel may be heard for

an Order granting Moving Defendants’ Motion to Dismiss without Prejudice and to Compel

Arbitration.

PLEASE TAKE FURTHER NOTICE that Defendants shall rely on the attached

Memorandum of Law and Certification of Joel I. Fishbein, Esq. with exhibits, submitted herewith.

PLEASE TAKE FURTHER NOTICE that a proposed form of Order is submitted

herewith in accordance with R. 1:6-2(a). An original and two copies of the proposed Order is

attached to the moving papers.

PLEASE TAKE FURTHER NOTICE that Defendants waive oral argument and requests

a ruling on the papers unless opposition is timely filed and served, in which case Moving

Defendants requests oral argument

LITCHFIELD CAVO, LLP

/s/ Joel I. Fishbein____
Joel I. Fishbein, Esquire
Attorneys for Defendants,
Brookdale Evesham; BLC-Brendenwood, LLC,
Brookdale Providen, Brookdale Senior Living, Inc,
Brookdale Living Communities of New Jersey d/b/a
Brookdale Evesham, Brookdale Senior Living, LLC,
and Brookdale Senior Housing, LLC

Dated: September 6, 2023

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ELIZABETH McCORMICK, by and through :
Power of Attorney, MARY ZACCONE : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION
Plaintiff, : BURLINGTON COUNTY
:
v. : Docket No. BUR-L-00852-23
:
BROOKDALE EVESHAM; BLC- :
BRENDENWOOD, LLC; BROOKDALE :
PROVIDEN; BROOKDALE SENIOR :
LIVING, INC; BROOKDALE LIVING :
COMMUNITIES OF NEW JERSEY D/B/A : ORDER
BROOKDALE EVESHAM; BROOKDALE :
SENIOR LIVING, LLC; BROOKDALE :
SENIOR HOUSING, LLC; ABC :
COMPANIES (1-10); JOHN DOE :
PHYSICIANS (1-10); JANE DOE NURSES :
(1¬20); JANE MOE TECHNICIANS, CNAs
AND PARAMEDICAL EMPLOYEES (1-
20),
Defendants.

THIS MATTER, having been brought before the Court by way of motion of Joel I.

Fishbein, counsel for Defendants Brookdale Evesham; BLC-Brendenwood, LLC, Brookdale

Providen, Brookdale Senior Living, Inc, Brookdale Living Communities of New Jersey d/b/a

Brookdale Evesham, Brookdale Senior Living, LLC, and Brookdale Senior Housing, LLC on

their Motion to Dismiss without Prejudice and to Compel Arbitration (“Motion”) and good and

sufficient notice of the Motion having been afforded to all parties, and the Court having

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considered the papers submitted in support of the Motion and in opposition thereto, and for good

cause shown;

IT IS ON THIS _____ day of ______________, 2022, HEREBY ORDERED that:

1. Moving Defendants’ Motion to Dismiss without Prejudice and to Compel

Arbitration is GRANTED.

2. Pursuant to N.J.S.A. 2A:23B-7(a), Plaintiff, Estate of Elizabeth McCormick by

and through Power of Attorney Mary Zaccone b, is enjoined from litigating her claims in court

against Defendants.

3. No costs are awarded in favor of any party or against the other.

4. This matter is stayed pending the resolution of the arbitration.

BY THE COURT:

_______________________________
J.S.C.

__X_ Opposed

____ Unopposed

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ELIZABETH McCORMICK, by and through :
Power of Attorney, MARY ZACCONE : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION
Plaintiff, : MERCER COUNTY
:
v. : Docket No. BUR-L-000852-23
:
BROOKDALE EVESHAM; BLC- :
BRENDENWOOD, LLC; BROOKDALE :
PROVIDEN; BROOKDALE SENIOR : CERTIFICATION OF COUNSEL IN
LIVING, INC; BROOKDALE LIVING : SUPPORT OF DEFENDANTS’ MOTION TO
COMMUNITIES OF NEW JERSEY D/B/A : DISMISS WITHOUT PREJUDICE AND TO
BROOKDALE EVESHAM; BROOKDALE : COMPEL ARBITRATION
SENIOR LIVING, LLC; BROOKDALE :
SENIOR HOUSING, LLC; ABC :
COMPANIES (1-10); JOHN DOE :
PHYSICIANS (1-10); JANE DOE NURSES :
(1¬20); JANE MOE TECHNICIANS, CNAs :
AND PARAMEDICAL EMPLOYEES (1-
20),
Defendants.

I, Joel I. Fishbein, Esquire, of full age, hereby certify as follows:

1. I am counsel for Defendants Brookdale Evesham; BLC-Brendenwood, LLC,

Brookdale Providen, Brookdale Senior Living, Inc, Brookdale Living Communities of New

Jersey d/b/a Brookdale Evesham, Brookdale Senior Living, LLC, and Brookdale Senior

Housing, LLC.

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2. I am an attorney with the firm of Litchfield Cavo, LLP and in that regard I am

responsible for the handling of the within action on behalf of Defendants and, as such, I am fully

familiar with the facts and circumstances surrounding this case.

3. I make this Certification in support of Defendants’ Motion to Dismiss without

Prejudice and to Compel Arbitration.

4. Attached as Exhibit “A” to the Motion is a true and correct copy of the

Admission Agreement executed by Plaintiff, Elizabeth McCormick.

5. Attached as Exhibit “B” is the Complaint filed in the above-captioned matter.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false I am subject to punishment.

LITCHFIELD CAVO LLP
An Illinois Limited Liability Partnership

Attorneys for Brookdale Evesham; BLC-
Brendenwood, LLC, Brookdale Providen,
Brookdale Senior Living, Inc, Brookdale
Living Communities of New Jersey d/b/a
Brookdale Evesham, Brookdale Senior
Living, LLC, and Brookdale Senior Housing,
LLC

By:
Joel I. Fishbein, Esquire

Dated: September 6, 2023

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Litchfield Cavo LLP
Suite 1220
1515 Market Street
Philadelphia, PA 19102
215-999-5571
By: Joel I. Fishbein., Esquire, Attorney I.D. No. 17181989
Attorneys for Defendants, Brookdale Evesham; BLC-Brendenwood, LLC, Brookdale
Providen, Brookdale Senior Living, Inc, Brookdale Living Communities of New Jersey d/b/a
Brookdale Evesham, Brookdale Senior Living, LLC, and Brookdale Senior Housing, LLC

ELIZABETH McCORMICK, by and through :
Power of Attorney, MARY ZACCONE : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION
Plaintiff, : BURGLINTON COUNTY
:
v. : Docket No. BUR-L-000852-23
:
BROOKDALE EVESHAM; BLC- :
BRENDENWOOD, LLC; BROOKDALE :
PROVIDEN; BROOKDALE SENIOR : MEMORANDUM OF LAW IN SUPPORT OF
LIVING, INC; BROOKDALE LIVING : DEFENDANTS’ MOTION TO DISMISS
COMMUNITIES OF NEW JERSEY D/B/A : WITHOUT PREJUDICE AND TO COMPEL
BROOKDALE EVESHAM; BROOKDALE : ARBITRATION
SENIOR LIVING, LLC; BROOKDALE :
SENIOR HOUSING, LLC; ABC :
COMPANIES (1-10); JOHN DOE :
PHYSICIANS (1-10); JANE DOE NURSES :
(1¬20); JANE MOE TECHNICIANS, CNAs :
AND PARAMEDICAL EMPLOYEES (1- :
20), :
Defendants. :

I. INTRODUCTION

This Motion to Dismiss without Prejudice and to Compel Arbitration, filed by

Defendants Brookdale Evesham; BLC-Brendenwood, LLC, Brookdale Providen, Brookdale

Senior Living, Inc, Brookdale Living Communities of New Jersey d/b/a Brookdale Evesham,

Brookdale Senior Living, LLC, and Brookdale Senior Housing, LLC seeking the enforcement of

the valid and enforceable arbitration agreement between the parties. For the reasons that follow,

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Plaintiffs’ Complaint must be dismissed without prejudice, she must be compelled to arbitrate

her dispute, and this matter must be stayed pending the resolution of the arbitration.

II. STATEMENT OF FACTS

A. Factual Background

On August 20, 2021, Plaintiff Elizabeth McCormick signed an Admission Agreement

(Exhibit “A”) which contained a valid and binding Agreement to Arbitrate which stated as

follows:

V. AGREEMENT TO ARBITRATE.

Should any of sub-sections A & B provided below, or any part thereof, be deemed
void or invalid, the validity of the remaining sub-sections, or parts thereof, will
not be affected.

A. ARBITRATION PROCEEDINGS.

1. Any and all claims or controversies arising out of, or in any way relating to,
this Agreement or any of your stays at the Community, excluding any action
for involuntary transfer or discharge or eviction, and including disputes
regarding interpretation, scope, enforceability, unconscionability, waiver,
preemption and/or violability of this Agreement, whether arising out of State
or Federal law, whether existing or arising in the future, whether for
statutory, compensatory or punitive damages and whether sounding in breach
of contract, tort or breach of statutory duties, irrespective of the basis for the
duty or the legal theories upon which the claim is asserted, shall be submitted
to binding arbitration, as provided below, and shall not be filed in a court of
law. The parties to this Agreement further understand that a judge
and/or jury will not decide their case.

2. The parties hereby expressly agree that this Arbitration Provision, the
Residency Agreement and the Resident’s stays at the Community
substantially involve interstate commerce, and stipulate that the Federal
Arbitration Act (“FAA”) shall exclusively apply to the interpretation and
enforcement of this Agreement, and shall preempt any inconsistent State law
and shall not be reverse preempted by the McCarran-Ferguson Act; United
States Code Title 15, Chapter 20, or other law. Any party who demands
arbitration must do so for all claims or controversies that are known, or
reasonably should have been known, by the date of the demand for
arbitration, and if learned of during the course of the arbitration proceeding
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shall amend the claims or controversies to reflect the same. All current
damages and reasonably foreseeable damages arising out of such claims or
controversies shall also be incorporated into the initial demand or amendment
thereto.

3. A demand for Arbitration by you, your legal representative, a person or
organization acting on your behalf with your consent, or the personal
representative of your estate (collectively “Resident Party”) shall be made in
writing and submitted to Legal Department, Brookdale Senior Living Inc.,
6737 W. Washington St. #2300, Milwaukee, WI 53214, via certified mail,
return receipt requested. Demand for Arbitration by us shall be made in
writing and submitted to you or your agent, representative, successor or
assign and/or your legal representative via certified mail, return receipt
requested.

4. The arbitration proceedings shall take place in the county in which the
Community is located, unless agreed to otherwise by mutual consent of the
parties.

5. The arbitration panel shall be composed of one (1) arbitrator. Subject to the
requirements of section A.5, the parties shall agree upon an arbitrator that
must be a member of the New Jersey Bar with at least ten (10) years of
experience as an attorney. If the parties cannot reach an agreement on an
arbitrator within twenty (20) days of receipt of the Demand for Arbitration,
then each party will select an arbitrator. These arbitrators will act only for the
purpose of appointing a sole arbitrator to hear the case, subject to the criteria
above. If either party fails to select their arbitrator within the (20) days
mentioned above, they effectively forfeit their right to choose an arbitrator.

6. The arbitrator shall be unbiased of all parties, witnesses, and legal counsel. No
past or present officer, director, affiliate, subsidiary, or employee of a party,
witness, or legal counsel may serve as an arbitrator in the proceeding.

7. Discovery in the arbitration proceeding shall be governed by the New Jersey
Rules of Civil Procedure. However, discovery may be modified by
agreement of the parties.

8. The arbitrator shall designate a time and place within the county in which the
Community is located, for the arbitration hearing and shall provide thirty (30)
days’ notice to the parties of the arbitration hearing.

9. The arbitrator shall apply the New Jersey Rules of Evidence and New Jersey
Rules of Civil Procedure in the arbitration proceeding except where
otherwise stated in this Agreement. Also, the arbitrator shall apply, and the
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arbitration decision shall be consistent with, New Jersey law except as
otherwise stated in this Arbitration Provision.

10. The arbitration decision should be signed by the arbitrator and delivered to the
parties and their counsel within thirty (30) days following the conclusion of
the arbitration. The decision shall be in writing and shall set forth in detail the
arbitrator’s findings of fact and conclusions of law.

11. The arbitrator’s decision shall be final and binding and such decision may
only be vacated or modified as allowed by the Federal Arbitration Act.

12. The arbitrator’s fees and costs associated with the arbitration shall be divided
equally among the parties. The parties shall bear their own attorneys’ fees
and costs and hereby expressly waive any right to recover attorney fees or
costs, actual or statutory.

13. The arbitration proceeding shall remain confidential in all respects, including
the Demand for Arbitration, all arbitration filings, deposition transcripts,
documents produced or obtained in discovery, or other material provided by
and exchanged between the parties and the arbitrator’s findings of fact and
conclusions of law. Following receipt of the arbitrator’s decision, each party
agrees to return to the producing party within thirty (30) days the original and
all copies of documents exchanged in discovery and at the arbitration
hearing, except those documents required to be retained by counsel pursuant
to law. Further, the parties to the arbitration also agree not to discuss the
amount of the arbitration award or any settlement, the names of the parties, or
name/location of the Community except as required by law. Notwithstanding
the confidentiality agreement, nothing prohibits the parties from reporting to
local or state governments.

14. This Arbitration Provision binds third parties not signatories to this
Arbitration Provision, including any spouse, children, heir, representatives,
agents, executors, administrators, successors, family members, or other
persons claiming through the Resident, or persons claiming through the
Resident’s estate, whether such third parties make a claim in a representative
capacity or in a personal capacity. Any claims or grievances against the
Community or the Community’s corporate parent, subsidiaries, affiliates,
employees, officers or directors shall also be subject to and resolved in
accordance with this Arbitration Provision.

15. The terms of this Arbitration Provision are severable.

16. The Arbitration Provision shall survive your death.

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B. BENEFITS OF ARBITRATION. The parties’ decision to select arbitration
is supported by the potential cost-effectiveness and time-savings offered by
selecting arbitration, which may avoid the expense and delay of judicial
resolution in the court system. The parties’ decision to select arbitration is
supported by the potential benefit of preserving the availability, viability, and
insurability of a long term care company for the elderly and disabled in
STATE, by limiting such company’s exposure to liability. With this
Agreement, we are better able to offer our services and accommodations at a
rate that is more affordable to you. In terms of the potential time-savings
offered by selecting arbitration, the parties recognize that selecting a quick
method of resolution is potentially to a resident’s advantage.

You and/or your legal representative understand that other long term care
companies’ Agreements may not contain an arbitration provision. The parties
agree that the reasons stated above are proper consideration for the
acceptance of the Arbitration Provision. The undersigned acknowledges
that he or she has been encouraged to discuss this Agreement with an
attorney.

The parties to this Agreement further understand that a judge and/or a
jury will not decide their case.

(all emphasis in original).

B. Procedural History

Plaintiff filed their Complaint on May 1, 2023. See Exhibit “B.” This Motion is the first

filing by Defendants.

C. Facts Specific to the Motion to Compel Arbitration

In filing the Complaint in court, Plaintiff violated the arbitration of the Admission

Agreement pursuant to which she agreed to arbitrate any dispute arising from her residency at

Brookdale Evesham.

For the reasons that follow, this court must compel arbitration of Plaintiff’s claims

against Brookdale.

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III. LEGAL ARGUMENT

A. The Federal Arbitration Act Governs the Issue Presented and Requires This
Court To Compel Arbitration

The Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“the FAA”) reflects an “emphatic

federal policy in favor of arbitration.” Marmet Health Care Ctr., Inc. v. Brown, 132 S. Ct. 1201,

1203 (2012) (quoting KPMG LLP v. Cocchi, 132 S.Ct. 23, 25 (2011) (per curiam) (quoting

Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346,

87 L.Ed.2d 444 (1985)). The FAA requires state courts to place arbitration agreements on equal

footing with other contracts and it prohibits state courts from creating rules that single out

arbitration. Kindred Nursing Centers, Ltd. Partnership v. Clar, 137 S.Ct. 1421, 1426 (2017)

(invalidating decisional law requiring specific powers of attorney did not contain specific

language about waiving jury trials, but instead contained general language covering resolving

disputes or entering into contracts).

Enacted in 1925 to combat the judicial hostility to arbitration prevailing at the time, the

FAA manifested Congress’s intent to liberally favor the enforcement of arbitration agreements.

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011); Hall Street Associates, L.L.C. v.

Mattel, Inc., 552 U.S. 576 (2008). The FAA not only declares a national policy

favoring arbitration, but actually withdraws power of states to require a judicial forum for

resolution of claims that contracting parties agreed to resolve by arbitration. Mastrobuono v.

Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995).

The source of Congress’s authority to adopt the FAA derives from the powers granted to

it by the Commerce Clause established in the United States Constitution, Article 1, Section 8,

Clause 3, which gives Congress the power “to regulate commerce with foreign nations, and

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among the several states…” See Estate of Ruszala ex rel. Mizerak v. Brookdale Living

Communities, Inc., 415 N.J. Super. 272, 290, 1 A.3d 806, 816-17 (App. Div. 2010) (finding that

nursing homes meet the requirements for a showing of an effect on interstate commerce because

“pursuant to Congress’ Commerce Clause power, the FAA will reach transactions ‘in individual

cases without showing any specific effect upon interstate commerce if in the aggregate the

economic activity in question would represent a general practice subject to federal control.’”)

(internal citations omitted).

Once adopted, the FAA became “the supreme law of the land, and the Judges in every

State [became] bound thereby.” United States Constitution, Article VI, Clause 2 (“the

Supremacy Clause”). Accordingly, pursuant to the Supremacy Clause, any categorical rule

prohibiting arbitration is preempted by the FAA. See Marmet Health Care, 132 S.Ct. at 1204.

Section 2 is the primary substantive provision of the FAA. Moses H. Cone Mem’l

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). Section 2 of the FAA creates “a

body of federal substantive law of arbitrability, applicable to any arbitration agreement

within the coverage of the Act.” Id.

The body of substantive federal law “generated by elaboration of FAA § 2 is

equally binding on state and federal courts.” Vaden v. Discover Bank, 556 U.S. 49, 59

(2009) (citing Southland Corp. v. Keating, 465 U.S. 1, 12 (1984); Martindale v. Sandvik,

173 N.J. 76, 85 (2002) (“[S]ubstantive protection of the FAA applies irrespective of

whether arbitrability is raised in federal or state court.”) (quoting Southland, 465 U.S. at

16).

Indeed, all state and federal courts “must abide by the FAA, which is ‘the

supreme Law of the Land,’ and by the opinions of [the Supreme Court of the United
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States] interpreting that law.” Nitro-Lift Technologies, L.L.C. v. Howard, 133 S.Ct. 500,

503 (2012) (per curiam) (internal citations omitted). Thus, state courts “have a prominent

role to play as enforcers of agreements to arbitrate.” Vaden, 556 U.S. at 59 (emphasis

supplied). As the Appellate Division noted in Ruszala, 415 N.J. Super. at 293, 1 A.3d at

818-19:

Our State’s prohibition of arbitration agreements in nursing home contracts,
designed to protect the elderly, is thus irreconcilable with our national policy
favoring arbitration as a forum for dispute resolution. Under our federal system of
government, national policy prevails. Therefore, the FAA’s clear authorization
nullifies the specific prohibition of arbitration provisions in nursing home or
assisted living facilities’ contracts contained in N.J.S.A. 30:13–8.1.

Id.

More recently, in Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022), the

Supreme Court explained that Section 2 of the FAA contains two clauses: The first is “an

enforcement mandate, which renders agreements to arbitrate enforceable as a matter of law,” and

the second is “a saving clause, which permits invalidation of arbitration clauses on grounds

applicable to ‘any contract.’” Id. at 1917 (citing and quoting Concepcion, 563 U.S. at 339–340

(2011) and Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1621–1622 (2018)). In Moriana,

California courts prohibited arbitration of disputes initiated pursuant to California’s Private

Attorney General Act (“PAGA”) which empowered workers to sue on behalf of other similarly

situated employees. Id at 1914. The Court reversed the California courts’ decision and enforced

a clause in an employment contract requiring arbitration of the plaintiffs’ employment related

PAGA claims. The Court held that the FAA prohibited and preempted the rule applied by the

California courts as established by the Supreme Court of California in Iskanian v. CLS Transp.

Los Angeles, LLC, 59 Cal.4th 348, 382, 327 P.3d 129, 148, 173 Cal.Rptr.3d 289 (2014) that

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parties initiating PAGA suits could never been compelled to arbitrate their individual PAGA

claims. Id. at 1924.

The longstanding and unbroken line of precedent from the Supreme Court of the United

States interpreting the FAA to preempt state court decisional and statutory law that impair the

right to contract for arbitration requires that the Binding Arbitration Agreement in this case be

enforced.

B. The Threshold Question Of Whether the Arbitration Agreement Must
Be Enforced Is To Be Decided By the Arbitrator and Not This Court.

Whether the parties are bound by a given arbitration clause has been described by the

courts as a “gateway dispute.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002)

(citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995)). Thus, issues

touching the validity or scope of an arbitration agreement are “arbitrability” issues. See generally

Howsam, 537 U.S. at 84 (collecting cases). Provisions delegating the decision about the gateway

dispute to the arbitrator, rather than the court, are enforceable under the FAA. Rent–A–Center,

W., Inc. v. Jackson, 561 U.S. 63, 68–69 (2010). This gateway dispute will be decided by the

arbitrator if the parties’ arbitration agreement delegated the decision on this issue clearly and

unmistakably to the arbitrator. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942-944

(1995) (quoting from AT & T Technologies v. Communications Workers, 475 U.S. 643, 649

(1986) and Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 583, n. 7 (1960)).

In this case, Paragraph 1 of the Arbitration Agreement contained in the Residency

Agreement provides:

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interpretation, scope, enforceability, unconscionability, waiver, preemption
and/or violability of this Agreement,

(emphasis supplied). Thus, the delegation of arbitrability is clear, unambiguous and absolute.

The arbitrator, and not this court, is to decide the question of arbitrability.

C. If, Despite the Delegation To the Arbitrator, This Court Proceeds To
Determine The Question of Arbitrability, It Must Compel Arbitration

If despite the clear delegation to requiring the arbitrator to resolve this issue, this court

proceeds to decide the question of arbitrability, it has been repeatedly held that the court's

inquiry:

must be strictly confined to the question whether the reluctant party did agree to
arbitrate the grievance or did agree to give the arbitrator power to make the
award he made. An order to arbitrate the particular grievance should not be
denied unless it may be said with positive assurance that the arbitration clause
is not susceptible of an interpretation that covers the asserted dispute. Doubts
should be resolved in favor of coverage.

United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83 (1960).

Furthermore, in determining whether the agreement shall be enforced and whether the

agreement covers the dispute “due regard must be given to the federal policy favoring

arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of

arbitration.” Volt, 489 U.S.at 475-76; See also, Mastrobuonno, 514 U.S. at 62 (“due regard must

be given to the federal policy favoring arbitration, and ambiguities as to the scope of the

arbitration clause itself resolved in favor of arbitration.”)(quoting from Volt).

1. The Arbitration Agreement is Enforceable

Mrs. McCormick signed the Admission Agreement containing the Agreement to

Arbitrate. She cannot disavow that agreement now.

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2. The Claims in the Complaint are Within the Scope of the
Arbitration Agreement, and Plaintiff Must Be Compelled to
Arbitrate Them.

The Complaint contains three counts. See Exhibit B. All allege claims covered by the

definition of dispute in the Agreement to Arbitrate as follows:

Any and all claims or controversies arising out of, or in any way relating to, this
Agreement or any of your stays at the Community, excluding any action for
involuntary transfer or discharge or eviction, …. whether arising out of Local,
State or Federal law, whether existing or arising in the future, whether for
statutory, compensatory or punitive damages and whether sounding in breach of
contract, tort or breach of statutory duties, or otherwise, irrespective of the basis
for the duty or the legal theories upon which the claim is asserted,

See Griffin v. Burlington Volkswagen, Inc., 411 N.J.Super. 515, 518-519 (2010) (“Courts have

generally read the terms ‘arising out of’ or ‘relating to’ a contract as indicative of an ‘extremely

broad’ agreement to arbitrate any dispute relating in any way to the contract.”).

3. The Language of the Arbitration Provision Fully Complies with the
Dictates set forth in Atalese v. U.S. Legal Services Group, L.P., 219
N.J. 430, 442 (2019)

The Supreme Court of New Jersey’s decision in Atalese v. U.S. Legal Services Group,

L.P., 219 N.J. 430, 442 (2019) provides no grounds for this Court to refuse to enforce the

Arbitration Agreement in this case.

The language at issue in the Brookdale Evesham Arbitration Agreement states:

[A]ny and all claims or controversies arising out of, or in any way relating to, this
Agreement or any of your stays at the Community, excluding any action for
involuntary transfer or discharge or eviction . . . shall been submitted to binding
arbitration, as provided below, and shall not be filed in a court of law. The
parties to this Agreement further understand that a judge and/or jury will
not decide their case.

(emphasis in original). The court in Atalese noted that "[n]o particular form of words is

necessary to accomplish a clear and unambiguous waiver of rights." Atalese, supra, 219 N.J.

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BUR-L-000852-23 09/06/2023 10:51:12 AM Pg 12 of 15 Trans ID: LCV20232529216

at 444. However, the language quoted above tracks verbatim the language specifically

approved by the Atalese court as follows: “the clause, at least in some general and sufficiently

broad way, must explain that the plaintiff is giving up her right to bring her claims in court or

have a jury resolve the dispute.” Atalese, 219 N.J. at 447 (2014).

The Brookdale arbitration provision does precisely that. It passes muster under the

standard established in Atalese.

4. Estoppel Prevents Plaintiff From Attempting to Disavow the
Residency Agreement’s Arbitration Agreement When Ellen
Schoenberg Derived the Benefit of the Bargain Regarding Every
Other Undertaking in the Residency Agreement.

Equitable estoppel is applied in the arbitration setting to prevent a non-signatory party

from resisting arbitration found in one contractual provision when that same party embraced the

remaining benefits of the contractual relationship before the dispute leading to arbitration arose.

See E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269

F.3d 187, 200 (3d Cir. 2001) (courts use equitable estoppel to “prevent a non-signatory from

embracing a contract, and then turning its back on the portions of the contract, such as an

arbitration clause, that it finds distasteful”), and Friedman v. Yula, 679 F.Supp.2d 617, 627–28

(E.D. Pa. 2010).

The issue before the court is governed by the Residency Agreement and its Arbitration

Agreement. Brookdale Evesham honored all of the terms of the Residency Agreement. It

provided Mrs. McCormick with room, board, food, medications, physical therapy, occupational

therapy, assistance with activities of daily living, care and treatment, all with Mrs. McCormick’s

explicit consent. Those services were paid for with Mrs. McCormick’s authority when she signed

the Residency Agreement. Only now does Mrs. McCormick seeks to disavow the last remaining

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undertaking she agreed to i.e., the obligation to arbitrate disputes. Equitable estoppel prevents

Mrs. McCormick from playing fast and loose in this fashion.

The causes of action set forth in the Complaint asserted against Brookdale Evesham

arise out of and relate to Mrs. McCormick’s residency at Brookdale Evesham. Accordingly,

the Arbitration Agreement must be enforced.

4. This Motion is Filed Pursuant to N.J.S.A. 2A:23B-7 Which Requires
This Court to Enter an Order Compelling Arbitration

Defendants file this Motion pursuant to N.J.S.A. 2A:23B-7 seeking to compel arbitration.

N.J.S.A. 2A:2B provides in relevant part:

a. On filing a summary action with the court by a person showing an agreement to
arbitrate and alleging another person's refusal to arbitrate pursuant to the
agreement:

(2) if the refusing party opposes the summary action, the court shall proceed
summarily to decide the issue and order the parties to arbitrate unless it finds that
there is no enforceable agreement to arbitrate.

b. … If the court finds that there is an enforceable agreement to arbitrate, it shall
order the parties to arbitrate.

* * * * * * * *

d. The court may not refuse to order arbitration because the claim subject to
arbitration lacks merit or grounds for the claim have not been established.

e. If a proceeding involving a claim referable to arbitration pursuant to an alleged
agreement to arbitrate is pending in court, an application pursuant to this section
shall be made in that court. …

f. If a party commences a summary action to order arbitration, the court on just
terms shall stay any judicial proceeding that involves a claim alleged to be subject
to the arbitration until the court renders a final decision pursuant to this section.

g. If the court orders arbitration, the court on just terms shall stay any judicial
proceeding that involves a claim subject to the arbitration. If a claim subject to the
arbitration is severable, the court may limit the stay to that claim.

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N.J.S.A. 2A:23B-7. Defendants have established the existence of an arbitration agreement as

required by N.J.S.A. 2A:23B-7 (a). In addition, as required by N.J.S.A. 2A:23B-7 (a),

Defendants have established that Plaintiff has evidenced her refusal to arbitrate by commencing

the instant action in the Superior Court of New Jersey, Burlington County, Law Division.

The court is prohibited from withholding the requested order based upon its evaluation of

the merits of the dispute presented. N.J.S.A. 2A:23B-7(d). This motion is properly presented as

a motion to dismiss the complaint without prejudice and to compel arbitration because Plaintiffs

initiated the above captioned lawsuit, when the claims set forth in the lawsuit against Defendants

were referable to arbitration. N.J.S.A. 2A:23B-7(e). The proceedings in this case must be stayed

pending the court’s decision with respect to this motion. N.J.S.A. 2A:23B-7(f). When the court

concludes, as it must, that the claims against Defendants are referable to arbitration, it must enter

an order referring the claims against Defendants to arbitration, pursuant to subsection N.J.S.A.

2A:23B-7 (b) which mandates that this court “shall order the parties to arbitration.”

In considering this motion to compel arbitration, New Jersey law requires that: “courts

operate under a “presumption of arbitrability in the sense that an order to arbitrate the particular

grievance should not be denied unless it may be said with positive assurance that the arbitration

agreement is not susceptible of an interpretation that covers the asserted dispute.” Curtis v.

Cellco Partnership, 413 N.J. Super. 26, 33-34 (App. Div. 2010) quoting Epix Holdings Corp. v.

Marsh & McLennan Cos., 410 N.J. Super. 453, 471 (App. Div. 2009) quoting Caldwell v. KFC

Corp., 958 F.Supp. 962, 973 (D.N.J. 1997).

As in Grandvue Manor, LLC v. Cornerstone Contracting Corp., 471 N.J. Super. 135, 144

(App. Div. 2022), the parties in this case clearly and unambiguously agreed to submit “any

claim” to binding arbitration. The arbitration agreement must be enforced through the entry of
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the proposed order which grants the motion to compel arbitration but stays the case pending the

resolution of the arbitration so that, if necessary, the parties can resort to the court to enforce any

arbitration award. Id. at 147 (order dismissing case for lack of personal jurisdiction was in error).

IV. CONCLUSION

For the foregoing reasons, Defendants respectfully requests that this Honorable Court

enter the accompanying order compelling Plaintiff to arbitrate her claims against Defendants set

forth in Plaintiff’s Complaint, and staying this litigation pending the outcome of the arbitration.

LITCHFIELD CAVO LLP
An Illinois Limited Liability Partnership

By:
Joel I. Fishbein, Esquire
Attorneys for Defendants,
Brookdale Eveham; BLC-Brendenwood,
LLC, Brookdale Providen, Brookdale Senior
Living, Inc, Brookdale Living Communities
of New Jersey d/b/a Brookdale Evesham,
Brookdale Senior Living, LLC, and
Brookdale Senior Housing, LLC

Dated: September 6, 2023

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BUR-L-000852-23 09/06/2023 10:51:12 AM Pg 1 of 2 Trans ID: LCV20232529216

LITCHFIELD CAVO LLP
An Illinois Limited Liability Partnership
Suite 1220
1515 Market Street
Philadelphia, PA 19102
215-999-5571
By: Joel I. Fishbein, Attorney I.D. No.: 17181909
Attorneys for Defendants, Brookdale Evesham; BLC-Brendenwood, LLC, Brookdale
Providen, Brookdale Senior Living, Inc, Brookdale Living Communities of New Jersey d/b/a
Brookdale Evesham, Brookdale Senior Living, LLC, and Brookdale Senior Housing, LLC

:
ELIZABETH McCORMICK, by and through : SUPERIOR COURT OF NEW JERSEY
Power of Attorney, MARY ZACCONE : LAW DIVISION – BURLINGTON COUNTY
:
Plaintiff, : Docket No.: BUR-L-000852-23
:
v. : CIVIL ACTION
:
BROOKDALE EVESHAM; BLC- :
BRENDENWOOD, LLC; BROOKDALE :
PROVIDEN; BROOKDALE SENIOR : PROOF OF SERVICE
LIVING, INC; BROOKDALE LIVING :
COMMUNITIES OF NEW JERSEY D/B/A :
BROOKDALE EVESHAM; BROOKDALE :
SENIOR LIVING, LLC; BROOKDALE :
SENIOR HOUSING, LLC; ABC :
COMPANIES (1-10); JOHN DOE :
PHYSICIANS (1-10); JANE DOE NURSES :
(1¬20); JANE MOE TECHNICIANS, CNAs :
AND PARAMEDICAL EMPLOYEES (1- :
20), :
Defendants. :
:

I, Joel I. Fishbein, Esquire, hereby caused a true and correct copy of the Notice of Motion

to Dismiss and to Compel Arbitration, Memorandum of Law in Support Thereof, Certification of

Counsel and proposed form of Order of Defendants, Brookdale Evesham; BLC-Brendenwood,

LLC, Brookdale Providen, Brookdale Senior Living, Inc, Brookdale Living Communities of

New Jersey d/b/a Brookdale Evesham, Brookdale Senior Living, LLC, and Brookdale Senior
BUR-L-000852-23 09/06/2023 10:51:12 AM Pg 2 of 2 Trans ID: LCV20232529216

Housing, LLC (“Moving Defendants”) to be filed and served on this 6th day of September,

2023, upon all counsel of record listed below via the Court’s electronic filing system:

David R. Cohen, Esquire
Cohen Kolodny Abuse Analytics, LLC
331 Newman Springs Road, Building 1, Fourth Floor, Suite 143
Red Bank, New Jersey 07701

LITCHFIELD CAVO LLP
An Illinois Limited Liability Partnership

By:
On behalf of the firm
Joel I. Fishbein, Esquire
Attorneys for Defendants,
Brookdale Evesham; BLC-Brendenwood, LLC,
Brookdale Providen, Brookdale Senior Living, Inc,
Brookdale Living Communities of New Jersey d/b/a
Brookdale Evesham, Brookdale Senior Living, LLC,
and Brookdale Senior Housing, LLC
BUR-L-000852-23 09/06/2023 10:51:12 AM Pg 1 of 45 Trans ID: LCV20232529216

Case Info

Judge

James J Ferrelli Track Judge’s New Case

Case No.

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Document Filed Date

September 06, 2023

Case Filing Date

May 01, 2023

County

Parties

0) Jane Doe Nurses (1-2 Defendant
(1-10) John Doe Physicians Defendant
Abc Companies (1-10) Defendant
Blc-Brendenwood Llc Defendant
Brookdale Evesham Defendant
Brookdale Living Communities Defendant
Brookdale Providen Defendant
Brookdale Senior Housing Llc Defendant
Brookdale Senior Living Inc Defendant
David Robert Cohen Attorney for the Plaintiff
, Jane Moe Technicians Defendant
Joel I Fishbein Attorney for the Defendant
Mary Zaccone Plaintiff

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Document for Mccormick By Zaccone Vs Brookdale Evesham

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