LAIBOW v. MENASHE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

RIMA E. LAIBOW, spouse of ALBERT

STUBBLEBINE, III, deceased, Civ. No. 19-4549 (KM) (SCM)

Plaintiff, OPINION

v.

RICHARD MENASHE, WILLIAM

OSER, LISA CASALE, THE

COMMUNITY HOSPITAL GROUP

d/b/a JFK MEDICAL CENTER,

KINDRED HOSPITAL, ABC

COMPANIES (1-10), DEFENDANT

PARTNERSHIPS (1-10), JOHN DOE

PHYSICIANS (1-10), JANE DOE

NURSES (1-10), JANE MOE

TECHNICIANS, and PARAMEDICAL

EMPLOYEES (1-20),

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Pro se Plaintiff Rima Laibow brings this case on behalf of the estate of her

husband, Major General Albert N. Stubblebine, Ill. Ms. Laibow’s complaint

alleges negligence and statutory violations by several institutions and

professionals involved in the medical treatment of Gen. Stubblebine in the

weeks preceding his death in 2017. Before the Court are two motions:

Defendant Kindred Hospital’s Motion to Dismiss Plaintiffs Complaint with

Prejudice and Compel Alternative Dispute Resolution in Lieu of an Answer (DE

10); and Defendant Lisa Casale’s Motion to Dismiss Plaintiff's Complaint

Pursuant to Fed. R. Civ. P. 12(b)(6) (DE 11). For the following reasons, both

motions to dismiss are GRANTED.

I. BACKGROUND!

A. The Parties

Ms. Laibow and Gen. Stubblebine were married for twenty-three years

before he died on February 6, 2017. (DE 1 4§ 1 & 3). Ms. Laibow is the

executor and administrator of his estate and a citizen of Arizona. (DE 1 4] 1&

2). At the time of his death, Gen. Stubblebine was without known children, and

he had a life expectancy (actuarially speaking, presumably) of 4.6 years. (DE 1

3). He was a citizen of Arizona. (DE 1 { 3). The amount in controversy in this

dispute exceeds $75,000.00, exclusive of interest and costs. (DE 1 4 4).

Defendant Richard Menashe is an osteopathic doctor with thirty-four

years of experience. (DE 1 4 5). He specializes in family medicine. (DE 1 { 5).

Dr. Menashe is affiliated with Defendant JFK Medical Center. (DE 1 5).

Defendant William Oser is a medical doctor with thirty-four years of

experience. (DE 1 { 7). He practices internal medicine. (DE 1 4 7). Dr. Oser is

affiliated with Defendant JFK Medical Center. ? (DE 1 { 7).

Defendant Lisa Casale is a medical doctor who specializes in

pulmonology. (DE 1 { 9).

Defendant Community Hospital Group, Inc. (“Community”) is a New

Jersey non-profit corporation that owns, operates, and does business as JFK

Medical Center (“JFK”). (DE 1 4 11; DE 1 12)$

For purposes of this motion, the facts alleged in the complaint, not yet tested by

any fact finder, are assumed to be true. See Section II.A.1., infra. Docket entries will

be cited as “DE _..”

2 Ms. Laibow alleges that “Dr. Menashe is affiliated with JFK Medical Center” in

paragraph 5 and repeats that allegation verbatim in paragraph 7. (DE 1 4 5 & 7). The

subject of paragraph 7, however, is Dr. Oser, and so this may be an editing error. Also

unclear is whether plaintiff intended to allege that both doctors have thirty-four years

of experience.

3 Ms. Laibow named JFK Medical Center separately in her complaint to ensure

that the appropriate entity would be joined to and receive notice of this action. (DE 1

q 12).

Defendant Kindred Hospital is a thirty-four-bed “transitional hospital” in

Rahway, New Jersey. (DE 1 4 13). Kindred advertises that as a “transitional

care hospital” it offers “the same in[-|depth care [a patient] would receive in a

traditional hospital but for an extended recovery period.” (DE 1 § 13). It

partners with physicians to offer twenty-four-hour clinical care, seven days a

week. (DE 1 4 13).

B. Gen. Stubblebine’s Final Weeks

From September 1, 2016, to January 4, 2017, Gen. Stubblebine was a

patient at JFK. (DE 1 J 16). On January 4, 2017, he was transferred from JFK

to Kindred at the behest of JFK personnel. (DE 1 4 17). At the time, Ms. Laibow

was Gen. Stubblebine’s attorney-in-fact and health-care representative, but

she was not given sufficient notice and did not consent to the transfer. (DE 1

q 17).

Between January 4, 2017 and February 5, 2017, Gen. Stubblebine was a

patient at Kindred. (DE 1 4 18). On February 5, 2017, he was moved to Robert

Wood Johnson University Hospital, where he died the next day, February 6,

2017. (DE 1 ¥ 18).

During this time, Defendants provided negligent services and deviated

from the standard of care with respect to Gen. Stubblebine, which led to his

death. (DE 1 | 19-22).

C. Ms. Laibow’s Allegations

Ms. Laibow’s complaint alleges eight counts of tort- and statute-based

wrongdoing. She alleges the following:

1. Counts 1 and 2: Negligence and Wrongful Death (Against

Kindred and JFK)

Defendants had a nondelegable duty to exercise reasonable care towards

Gen. Stubblebine. (DE 1 4] 26 & 35). Defendants failed to allocate sufficient

resources to adequately care for Gen. Stubblebine and otherwise failed to

exercise reasonable care, including by abandoning Gen. Stubblebine at JFK

while he needed a ventilator to breathe. (DE 1 J 27 & 36). Defendants violated

the New Jersey Patient Bill of Rights, N.J.S.A 30:4-24.2, by:

e failing to properly evaluate, assess, and document Gen.

Stubblebine’s nutritional status and needs;

e failing to develop, document, and communicate a coherent,

consistent, and medically appropriate treatment plan for Gen.

Stubblebine;

e failing to regularly adopt, update, and implement a medically

appropriate treatment plan for Gen. Stubblebine;

e failing to adopt, incorporate, and implement a medically

appropriate nutritional plan in Gen. Stubblebine’s treatment plan;

e failing to update and make necessary changes to the nutritional

plan in the treatment plan as Gen. Stubblebine’s medical condition

evolved;

e allowing non-medical staff to interfere with and block the provision

of critically needed parenteral! feeding to Gen. Stubblebine after the

same was ordered by the attending physician, namely when the

Director of Nutrition noted that “nutrition has no place in this

patient’s care”;

e failing to adequately supervise Gen. Stubblebine’s care and

treatment by failing to take necessary action to reverse medically

disastrous decisions outside the scope of practice of non-medical

staff, which contradicted the order to provide parenteral nutrition

to Gen. Stubblebine;

e repeatedly delaying—for non-medical reasons—for over three

weeks the installation of a PEG tube ordered for Gen. Stubblebine

as medically necessary for his nutrition;

e failing to develop, document, communicate, and implement a

coherent, consistent, and medically appropriate treatment plan for

Gen. Stubblebine to ensure his adequate hydration;

e failing to take necessary action to ensure that Gen. Stubblebine

was sufficiently hydrated, which resulted in numerous instances of

dehydration-induced tachycardia, which in turn caused long-term

damage to his heart and kidneys;

e prescribing beta blockers, a medically inappropriate medication, to

address Gen. Stubblebine’s dehydration-induced tachycardia and

other cardiac arrythmias, which significantly worsened Gen.

Stubblebine’s physical condition and caused his death;

e violating the Patient Bill of Rights when a physician attempted to

circumvent Ms. Laibow’s refusal to allow the administration of beta

blockers by surreptitiously attempting to force their administration

medications while Ms. Laibow was not present;

e failing to develop, document, and communicate a coherent,

consistent, and medically appropriate treatment plan to ensure

that muscle deconditioning, muscle wasting, pressure sores or

decubitus ulcers would not develop in a comatose and otherwise

immobilized and incapacitated Gen. Stubblebine;

e failing to implement or execute a coherent, consistent, and

medically appropriate treatment plan to ensure that muscle

deconditioning, muscle wasting, pressure sores or decubitus ulcers

would not develop in a comatose and otherwise immobilized and

incapacitated Gen. Stubblebine;

* wrongfully hiding and actively concealing Gen. Stubblebine’s

rapidly deteriorating skin and muscle condition, which quickly

developed massive decubitus ulcers and pressure sores;

e failing to implement a regular schedule for turning Gen.

Stubblebine’s body to prevent or slow the development of massive

decubitus ulcers and pressure sores on Gen. Stubblebine’s body;

using an ill-fitting, inappropriately designed intubation harness,

which caused Gen. Stubblebine to suffer a facial decubitus ulcer,

causing his upper lip to become severely damaged;

e providing inadequate nursing care by restricting movement and

lacking proper decompression boots and pressure stocking, which

caused Gen. Stubblebine to develop deep vein thrombosis,

* inappropriately administering medications and drugs that were not

indented for Gen. Stubblebine, including insulin, while his records

and charts demonstrated Decedent’s low blood sugar; and

e failing to identify, incorporate and implement into Gen.

Stubblebine’s treatment plan cardiac resuscitation procedures, the

failure of which exacerbated and compounded the negative impact

of his February 5, 2017 cardiac arrest and further caused or

contributed to his death on February 6, 2017.

(DE 1 JJ 28 & 37).

Gen. Stubblebine was admitted to JFK with aspirational pneumonia and

sepsis, which improved, but the sepsis returned more virulently as a result of a

nosocomial infection caused by poor sanitary conditions. (DE 1 44 28 &37).

These infections included MRSA, C. diff., and pseudomonas. (DE 1 qf 28 &

37). They required the administration of stronger medications, which in turn

were more toxic and caused more kidney and other organ damage. (DE 1 JJ 28

& 37). Defendants’ documentation of Gen. Stubblebine’s care and treatment

was lax, inaccurate, and inadequate. (DE 1 J] 28 & 37).

2. Counts 3 and 4: Negligence Per Se Under the New Jersey

Patient Bill of Rights (Against Kindred and JFK)

Defendants failed to ensure, preserve and otherwise provide for Gen.

Stubblebine’s rights under N.J. Stat. Ann. § 30:4-24.2 and New Jersey

common law. (DE 1 | 48-49 & 56-57). Gen. Stubblebine suffered severe

injuries and damages, including dehydration, malnutrition, weight loss,

improper treatments, pressure ulcers, infections, extreme pain and discomfort,

increased expenses associated with further surgical pain and expensive

surgical procedures, mental and emotional anguish, a significantly decreased

quality of life, deprivation of dignity, general and specific neglect and lack of

care, and substantial costs and expenses for medical care and treatment and

ultimately suffered a prolonged, agonizing, untimely, and likely preventable

death. (DE 1 4 48-49 & 56-57).

3. Counts 5 and 6: Negligent Supervision (Against JFK and

Kindred)

Defendants knew or should have known that their patients, including

Gen. Stubblebine, were elderly and greatly limited in their ability to move and

to communicate their needs clearly and effectively and needed particular care

and supervision. (DE 1 { 59-61 & 63-65). Defendants failed to exercise

adequate care in the supervision of the treatment of their elderly patients,

including Gen. Stubblebine, particularly with respect to his inability to

communicate his health needs clearly and effectively. (DE 1 | 59-61 & 63-65).

Gen. Stubblebine sustained severe personal injuries, endured great pain and

suffering, incurred medical expenses for the care and treatment of those

injuries, and ultimately suffered a prolonged, agonizing, untimely, and likely

preventable death. (DE 1 ¢ 59-61 & 63-65).

4. Counts 7 and 8: Punitive Damages (Against JFK and Kindred)

Defendants caused Gen. Stubblebine to sustain and suffer severe

personal injuries and damages of both a permanent and temporary nature. (DE

1 | 68 & 71). Gen. Stubblebine was forced to endure great pain and suffering,

incur medical expenses for the care and treatment of said injuries, and

ultimately suffered a prolonged, agonizing, untimely and likely preventable

death. (DE 1 68 & 71).

D. Procedural History

On February 1, 2019, Ms. Laibow sued Richard Menashe, William Oser,

Lisa Casale, the Community Hospital Group d/b/a JFK Medical Center,

Kindred Hospital, ABC Companies (1-10), Defendant Partnerships (1-10), John

Doe Physicians (1-10), Jane Doe Nurses (1-10), Jane Moe Technicians, and

Paramedical Employees (1-20). (DE 1). Drs. Menashe, Oser, and Casale each

answered and crossclaimed against the other defendants. (DE 4, 5 & 8).

On May 17, 2019, Kindred moved to dismiss the complaint and to

compel arbitration of the claims. (DE 10). Kindred’s motion papers included a

copy of an arbitration agreement that Ms. Laibow had signed on January 6,

2017, the day Gen. Stubblebine was admitted to Kindred. (DE 10-4). Ms.

Laibow filed papers in opposition to the motion (DE 13), and Kindred filed a

reply (DE 17).

On May 24, 2019, Dr. Casale moved to dismiss pursuant to Rule

12(b)(6).4 (DE 11-1). Ms. Laibow filed papers in opposition to the motion (DE

20), and Dr. Casale filed a reply (DE 25}.

Il, DISCUSSION

Because this matter involves a controversy between citizens of different

states and the amount in controversy is alleged to exceed the sum of $75,000,

this Court has jurisdiction pursuant to 28 U.S.C. § 1332. Federal procedural

law and New Jersey substantive law will apply. See Erie R.R. v. Tompkins, 304

U.S, 64, 78 (1938).

A. Standard of Review

1. Motion to Dismiss for Failure to State a Claim upon Which

Relief Can Be Granted

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in

part, if it fails to state a claim upon which relief can be granted. See Fed. R.

Civ. P. 12(b)(6). The defendant, as the moving party, bears the burden of

showing that no claim has been stated. Animal Sci. Prods., Inc. v. China

Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of a

motion to dismiss, the facts alleged in the complaint are accepted as true and

all reasonable inferences are drawn in favor of the plaintiff. N.J. Carpenters &

the Trs. Thereof v. Tishman Const. Corp. of N.J., 760 F.3d 297, 302 (3d Cir.

2014).

Federal Rule of Civil Procedure 8(a) does not require that a complaint

contain detailed factual allegations. Nevertheless, “a plaintiffs obligation to

provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and

4 Motions to dismiss by JFK, Dr. Oser, and Community (DE 14), and Dr.

Menashe (DE18), are pending and will be decided separately.

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the

complaint’s factual allegations must be sufficient to raise a plaintiff's right to

relief above a speculative level, so that a claim is “plausible on its face.” Id, at

570; see also W. Run Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712

F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While “(t]he

plausibility standard is not akin to a ‘probability requirement’... it asks for

more than a sheer possibility.” Iqbal, 556 U.S. at 678.

Where, as here, the plaintiff is proceeding pro se, the complaint is “to be

liberally construed,” and, “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, “pro se litigants still must

allege sufficient facts in their complaints to support a claim.” Mala v. Crown

Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). “While a litigant’s pro se

status requires a court to construe the allegations in the complaint liberally, a

litigant is not absolved from complying with Twombly and the federal pleading

requirements merely because s/he proceeds pro se.” Thakar v. Tan, 372 F.

App’x 325, 328 (3d Cir. 2010) (citation omitted).

The Third Circuit has liberally permitted pleading amendments to ensure

that “a particular claim will be decided on the merits rather than on

technicalities.” Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990).

Indeed, where a complaint is dismissed on Rule 12(b)(6) grounds, “a District

Court must permit a curative amendment, unless an amendment would be

inequitable or futile.” Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)

(emphasis added); accord Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d

Cir. 2008) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.

2002) (citing Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000)).

2. Motion to Compel Arbitration

This Circuit’s case law has meandered somewhat in defining the proper

standard of review of a motion to compel arbitration. The upshot, however, is

fairly clear. Where the issue can be decided without evidence, it will be, based

on an application of the familiar Rule 12(b)(6) standard to the face of the

pleadings. Failing that, however, the Court will permit discovery and decide the

issue on a summary judgment standard, pursuant to Rule 56. If there is a

genuine issue of fact, summary judgment will be denied and the issues will be

tried.

Because arbitration is a “matter of contract” between two parties, “a

judicial mandate to arbitrate must be predicated upon the parties’ consent.”

Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 771 (3d Cir.

2013) (quoting Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d 51,

54 (3d Cir. 1980)). Pursuant to the Federal Arbitration Act (“FAA”), a court may

enforce a contract to arbitrate, but only if the court is satisfied that the

“making of the agreement” to arbitrate is not “in issue.” Id.

In Guidotti v. Legal Helpers Debt Resolution, the Third Circuit stated the

approach a court must take on a motion to compel arbitration. The judiciary

must balance the competing goals of the FAA: the speedy and efficient

resolution of disputes, and the enforcement of private agreements. /d. at 773.

Reconciling sometimes murky precedent in light of those competing interests,

the Guidotti court reasoned that where “the affirmative defense of arbitrability

of claims is apparent on the face of a complaint (or... documents relied upon

in the complaint}, . . . the FAA would favor resolving a motion to compel

arbitration under a motion to dismiss standard without the inherent delay of

discovery.” Id. at 773-74. Such an approach “appropriately fosters the FAA’s

interest in speedy dispute resolution. In those circumstances, ‘t]he question to

be answered . . . becomes whether the assertions of the complaint, given the

required broad sweep, would permit adduction of proofs that would provide a

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recognized legal basis’ for rejecting the affirmative defense.” Id. at 774 (quoting

Leone v. Aetna Cas. & Sur. Co., 599 F.2d 566, 567 (3d Cir. 1979).

“In many cases, however, a more deliberate pace is required, in light of

both the FAA’s insistence that private agreements be honored and the judicial

responsibility to interpret the parties’ agreement, if any, to arbitrate.” id.

[The Rule 12(b)(6) standard will not be appropriate] when either the

motion to compel arbitration does not have as its predicate a

complaint with the requisite clarity to establish on its face that the

parties agreed to arbitrate or the opposing party has come forth

with reliable evidence that is more than a naked assertion .. . that

it did not intend to be bound by the arbitration agreement, even

though on the face of the pleadings it appears that it did. Under

the first scenario, arbitrability not being apparent on the face of

the complaint, the motion to compel arbitration must be denied

pending further development of the factual record. The second

scenario will come into play when the complaint and incorporated

documents facially establish arbitrability but the non-movant has

come forward with enough evidence in response to the motion to

compel arbitration to place the question in issue. At that point, the

Rule 12(b)(6) standard is no longer appropriate, and the issue

should be judged under the Rule 56 standard.

Under either of those scenarios, a restricted inquiry into factual

issues will be necessary to properly evaluate whether there was a

meeting of the minds on the agreement to arbitrate and the non-

movant must be given the opportunity to conduct limited discovery

on the narrow issue concerning the validity of the arbitration

agreement. In such circumstances, Rule 56 furnishes the correct

standard for ensuring that arbitration is awarded only if there is

an express, unequivocal agreement to that effect.

Id. (internal citations and quotations and external citation omitted).

B. Kindred’s Motion to Dismiss

Kindred moves this Court to compel arbitration of the claims against it,

and therefore to dismiss the complaint. (DE 10-4 at 3). Kindred attaches to its

papers a copy of an arbitration agreement between it and Ms. Laibow. (DE 10-5

at 3) Ms. Laibow has submitted a declaration in response, likewise attaching a

copy of the arbitration agreement. (DE 13 at 27) She does not really dispute the

11

document’s authenticity—rather, she claims that she does not remember it or

did not knowingly sign it. I will therefore consider the arbitration agreement,

which was submitted by both sides in support of their arguments for and

against arbitration, and which appears to be well within the scope of what is

properly considered under Guidotti, supra.

Kindred argues that the arbitration agreement between it and Ms. Laibow

is enforceable in that there was no unfairness in contract formation and that

the terms of the agreement are not substantively unconscionable. (DE 10-4 at

3-7). Ms. Laibow responds that the agreement is a “classic example of an

adhesion contract.” (DE 13 at 3). She disclaims any memory of signing it, and

she alleges that she would not have done so if she had been knowingly

confronted with it. (Id.). Ms. Laibow describes the agreement as “deficient and

defective,” because, according to her, the agreement does not explain what

arbitration is and how it differs from litigation, and it was not written in plain

language that an average consumer would understand. (/d.). Kindred responds

that the terms of the agreement were clear and that Ms. Laibow voluntarily

signed it on Gen. Stubblebine’s behalf. (DE 17 at 2). Kindred adds that both

the FAA and New Jersey law are clear that arbitration is a favored method of

dispute resolution. (/d.}.

Federal law is decidedly pro-arbitration. The FAA’s purpose is “to reverse

the longstanding judicial hostility to arbitration agreements that had existed at

English common law and had been adopted by American courts, and to place

arbitration agreements upon the same footing as other contracts.” Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991). Thus, the statute

makes agreements to arbitrate “valid, irrevocable, and enforceable,” 9 U.S.C.

§ 2, subject only to traditional principles of contract formation and

interpretation. The FAA provides that contract provisions manifesting the

intent of the parties to settle disputes in arbitration shall be binding, allows for

the stay of federal court proceedings in any matter that is referrable to

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arbitration, and permits both federal and state courts to compel arbitration if

one party has failed to comply with an agreement to arbitrate. 9 U.S.C. §§ 2 —-4.

Cumulatively, those provisions “manifest a liberal federal policy favoring

arbitration agreements.” Gilmer, 500 U.S. at 24 (quotations omitted). Thus, “as

a matter of federal law, any doubts concerning the scope of arbitrable issues

should be resolved in favor of arbitration.” Moses H. Cone Mem’! Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).

The Supreme Court has recently given new content to that strong federal

pro-arbitration policy. In fact, the Court seems to have implied, with

disapproval, that the states were promulgating facially neutral rules that were

in fact intended to discriminate against agreements to arbitrate vis-a-vis other

contracts:

The FAA... preempts any state rule discriminating on its face

against arbitration—for example, a “law prohibit[ing] outright the

arbitration of a particular type of claim.” .... And not only that:

The Act also displaces any rule that covertly accomplishes the

same objective by disfavoring contracts that (oh so coincidentally)

have the defining features of arbitration agreements.

Kindred Nursing Centers Ltd. P’ship v. Clark, 137 8. Ct. 1421, 1426 (2017)

(quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 341 (2011)), Any

consideration of State law, then, must bear in mind the Kindred preemption

principle.

The fact remains, however, that arbitration is a creature of contract.

Before referring any controversy to arbitration, the Court must determine

whether the parties have indeed agreed to arbitrate it. Green Tree Fin. Corp. v.

Bazzle, 539 U.S. 444, 452 (2003). That determination has three subparts: (1)

whether the parties agreed to arbitrate; (2) whether the dispute is within the

scope of the agreement; and (3} whether Congress nevertheless intended the

dispute to be non-arbitrable. Sarbak v. Citigroup Global Markets, Inc., 354 F.

Supp. 2d 531, 536-37 (D.N.J. 2004).

New Jersey courts, too, have held that arbitration “is a favored means of

dispute resolution.” Hojnowski v. Vans Skate Park, 187 N.J. 323, 342 (2006).

13

The state courts have “long noted our public policy that encourages the ‘use of

arbitration proceedings as an alternative forum.” Wein v. Morris, 194 NJ. 364,

375-76 (2008) (citing Perini Corp. v. Greate Bay Hotel & Casino. Inc., 129 N.J.

479, 489 (1992)); see also Delta Funding Corp. v. Harris, 189 N.J. 28, 39 (2006).

Accordingly, arbitration clauses are afforded a “presumption of arbitrability,”

which can only be overcome if the Court can determine with “positive

assurances” that the clause does not cover the dispute at issue. AT&T Techs. v.

Comme’ns. Workers of Am., 475 U.S. 643, 650 (1986); see also Moses H. Cone

Mem/’I Hosp., 460 U.S. at 4 (“Any doubts concerning the scope of arbitrable

issues should be resolved in favor of arbitration”). Ultimately, arbitration

agreements should be read liberally to find arbitrability whenever possible.

Jansen v. Solomon Smith Barney, Inc., 342 N.J. Super. 254,257 (App. Div.

2001).

Here, Ms. Laibow argues that the arbitration agreement in this case is

both procedurally and substantively unconscionable. Procedural

unconscionability deals with the manner in which the parties entered into a

contract, and it takes into consideration a variety of inadequacies, such as age,

literacy, lack of sophistication, hidden or unduly complex contract terms,

bargaining tactics, and the particular setting existing during the contract

formation process. Sitogun Holdings, Inc. v. Ropes, 800 A.2d 915, 921 (N.J.

Super. Ch. Div. 2002) (citations omitted). Substantive unconscionability, on the

other hand, will be found when the terms of an agreement are so one-sided

that they shock the court’s conscience. Jd. (citations omitted).

Under New Jersey law, unconscionability is fact-dependent. See, e.g.,

Delta Funding Corp. v. Harris, 912 A.2d 104, 110-11 (N.J, 2006). I have taken

Ms. Laibow’s factual allegations and submissions at face value. I nevertheless

find that she has not set forth a valid claim of unconscionability.

The arbitration agreement plainly bears Ms. Laibow’s signature. (She

halfheartedly attempts to cast doubt on the validity of her signature but does

not forthrightly deny signing. See infra.) The agreement provides that Kindred

14

“may reasonably rely upon the validity and authority of the representative’s

signature based upon actual, implied or apparent authority.” (DE 13 at 30).

Ms. Laibow’s allegations do not support the assertion that she lacked the

capacity to understand the agreement’s terms or lacked the authority to sign

on Gen. Stubblebine’s behalf.

Ms. Laibow argues in essence that, at the time of signing, she was

distraught and distracted by her husband’s plight:

[A]t the very moment her critically-ill husband was being admitted

to Defendant Kindred Hospital by ambulance, when the Plaintiff

had no opportunity to review such documents while her husband

is being admitted by ambulance into Defendant Kindred Hospital,

while her husband was on a ventilator for life support, before the

Plaintiff could be with her husband.

(DE 13 at 3). She elaborates on this theme in a declaration attached to her

brief, in which she argues that, whatever she may have signed, she did not

intend to agree to arbitrate with Kindred:

4. On my arrival at Kindred Hospital, I was met by a social worker

employed by Kindred who presented me with a handful of

documents to sign so that my husband could be admitted

immediately. I was told the papers were routine hospital admission

documents which had to be signed immediately for my

extremely||ill husband to be admitted and receive treatment at

Kindred Hospital.

5. Because of the quasi-emergency nature of my husband’s

admission into Kindred Hospital, I was given little or no time to

review the handful of documents the social worker gave me to sign

as the spouse of Gen. Stubblebine. I was presented with such

documents either in an open area of Kindred or elsewhere, but in

no event was | given the opportunity to sit and carefully read each

of the many documents I was asked to sign at such time before |

was allowed to see or be with my husband at Kindred Hospital.

6. I recall that some of the documents | signed were in large print,

and others were in single-spaced, small print that was difficult for

me to read. 1 was in such a state of worry and fear for my

husband’s well-being that my focus was on finding out how he was

doing after the transfer in the ambulance.

15

7. Attached as Exhibit B hereto is a true copy of the “Voluntary

Alternative Dispute Resolution Agreement” defendant Kindred

Hospital has claimed | signed on June 6, 2017. I note that such

decument is in small, 9 pt print, is single-spaced, and is four

pages in length. I do not remember ever seeing this document

before, nor do I remember signing this document at any time, on

either January 6, 2017 or January 9, 2017, nor has anyone ever

given me a copy of such document for my records, to my

knowledge.

7. 1do not remember ever receiving or signing a copy of any form of

“Voluntary Alternative Dispute Resolution Agreement” document.

No one from Kindred Hospital ever told me that I was signing any

form of “Voluntary Alternative Dispute Resolution Agreement.” If

they had, I would have refused to sign such an agreement. No one

to my knowledge ever gave me a copy of such “Voluntary

Alternative Dispute Resolution Agreement.”

8. I would never have willingly signed away any of my husband’s

rights, nor have I ever agreed to sign away any of my rights under

law.

9. I do not recognize the document the Defendant Kindred has

produced as its “Voluntary Alternative Dispute Resolution

Agreement,” ....

(DE 13 at 23-25).

Ms. Laibow’s complaint, even as supplemented by her declaration, does

not sufficiently allege procedural unconscionability. She states that she lacked

sufficient time to review the agreement in the haste and confusion of this

medical emergency. The agreement itself, however, explicitly states that its

execution is not a precondition to nursing care and that it may be cancelled

within five business days. (DE 13 at 29). Ms. Laibow does not allege that she

had a diminished mental capacity or was herself a patient at the hospital.

Rather, she was the patient’s legal representative and attorney-in-fact. (DE 10-

5 at 2; DE 13 at 30) The patient’s incapacity is the very rationale for granting

such a power of attorney to the patient’s representative. As such, it was her

function to review and execute routine hospital admission documents that

included the arbitration agreement. Ms. Laibow is not unsophisticated. Ms.

1B

Laibow is herself a physician, and therefore presumably has at least some

familiarity with hospital procedures and admission documents. The language of

the agreement is clear, Ms. Laibow is an educated and sophisticated party, and

her signature is evident on the page. A claim of mere inability to recall is not

sufficient to establish procedural unconscionability. See generally Moore v.

Woman to Woman Obstetrics & Gynecology, L.L.C., No. A-0683-11T1, 2013 N.J.

Super. Unpub. LEXIS 2035 (App. Div. Aug. 14, 2013) (compelling arbitration

where plaintiff “recalled filling out paperwork but had no specific recollection of

the arbitration agreement”); see also Leodori v. CIGNA Corp., 175 N.J. 293, 302

(2003) (“[W]e determine a written agreement’s validity by considering the

intentions of the parties as reflected in the four corners of the written

instrument.”).

The Court certainly sympathizes with a patient or loved one who must

cope with admission paperwork at a stressful time. But that, unfortunately, is

a fact of life. Virtually anyone being admitted to a hospital for a serious

condition could claim similar stress; it cannot be the law that any sucha

person, or their appointed representative, necessarily lacks the capacity to

effectively execute such necessary documents.

I turn to the claim of substantive unconscionability. The agreement is

also not substantively unconscionable; it does not take advantage of the stress

and time pressure of hospital admission. Quite the contrary. The agreement’s

terms include the following:

a) [The Patient] has the right to seek legal counsel concerning this

Agreement;

(b) the execution of this Agreement is not a precondition to the

furnishing of services to the patient by the Hospital;

(c):‘this Agreement may be cancelled by the Patient by delivering

written notice of revocation to the Hospital not later than 5:00 p.m.

local time on the fifth (5th) business day after signing the

Agreement; and

17

(d) nothing in this Agreement shall prevent Patient or any other

person from reporting alleged violations of law to the appropriate

administrative, regulatory or law enforcement agency.

(DE 13 at 29).

The agreement provides that Kindred shall bear not only the costs of the

mediator and the arbitrator, but also any other reasonable costs for the first

five days of any hearing. If a hearing lasts longer than five days, the agreement

calls for the parties to split the costs equally. The agreement requires a plaintiff

to pay his or her own legal fees in arbitration (which he or she would also incur

in traditional litigation). Finally, the agreement allows the parties to select a

mediator and arbitrator. It suggests one such service, but ultimately permits

the parties to select any independent and impartial decisionmaker. The

agreement directs the parties to the procedural rules that it contemplates will

govern any dispute resolution. (DE 13 at 27-31, passim)

Nor do Ms. Laibow’s allegations support a conclusion that the agreement

is otherwise unenforceable. The agreement plainly and succinctly summarizes

the purpose of the document. A bold, capitalized, underlined heading on the

first page of the agreement alerts the reader to an arbitration/ mediation

clause. Bolded text alerts the reader that arbitration is in lieu of, and waives,

litigation in court.

I. ALTERNATIVE DISPUTE RESOLUTION (“ADR”) AGREEMENT

PROVISIONS

A. Any and all claims or controversies arising out of or in any

way relating to this Agreement or the Patient’s stay at the

Hospital including disputes regarding interpretation -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 (including, without limitation, any claim based on

violation of rights, negligence, medical malpractice, any other

departure from the accepted standards of health care or safety

or the Code of Federal Regulations or unpaid hospital

charges), irrespective of the basis for the duty or of the legal

18

theories upon which the claim is asserted. shall be submitted

to alternative dispute resolution as described in this

Agreement. Only disputes that would constitute a legally

cognizable cause of action in a court of law may be submitted

to alternative dispute resolution. The parties to this

Agreement understand that the dispute resolution

process contains provisions for both mediation and

binding arbitration. If the parties are unable to reach

settlement informally, or through mediation, the dispute

shall proceed to binding arbitration. Binding arbitration

means that the parties are waiving their right to a trial,

including their right to a jury trial, their right to trial by

a judge and their right to appeal the decision of the .

arbitrator(s). Except as expressly set forth herein, the

provisions of the New Jersey Arbitration Act, N.J.S.A

2A:23B-1, et seq., shall govern the arbitration. This

Agreement includes claims against the Hospital, its

employees and for its medical director(s) in his/her

capacity as medical director.

(DE 13 at 27).

The arbitration agreement was thus neither procedurally nor

substantively unconscionable; it manifests the parties’ agreement to arbitrate.

Moreover, this dispute falls within the scope of the agreement—which covers

“(ajny and ail claims or controversies arising out of . . . the Patient’s stay at the

Hospital.” (DE 13 at 27). In light of New Jersey’s strong preference for

arbitration, see Wein, 194 N.J. at 375-76; Hojnowski, 187 N.J. at 342, the

agreement is therefore valid. Kindred’s to compel arbitration, and therefore to

dismiss the complaint as against itself, is therefore GRANTED.

C. Casale’s Motion to Dismiss

Dr. Casale asks this Court to dismiss Ms. Laibow’s complaint for failure

to state a claim under Rule 12(b)(6).5 (DE 11-1). Specifically, she asserts that

5 Dr. Casale’s theory relies on federal court procedures as embodied in rules and

interpretive case law. Out of caution, I consider whether the matter would be

considered under Rule 12(b)(1), rather than 12(b)(6), if the issue were treated as one of

standing. See St. Thomas-St. John Hotel & Tourism Ass’n v. Virgin Islands, 218 F.3d

232, 240 (3d Cir. 2000) (“The issue of standing is jurisdictional.”). | conclude that no

19

Ms. Laibow, a pro se plaintiff, cannot sue on behalf of her late husband’s

estate. (DE 11-1). Ms. Laibow opposes this motion, claiming that Dr. Casale’s

motion is frivolous. A substantial portion of her opposition is devoted to her

demand that the Court impose sanctions. (DE 20).

Title 28, United States Code, Section 1654 guarantees that “[iJn all courts

of the United States the parties may plead and conduct their own cases

personally or by counsel as, by the rules of such courts, respectively, are

permitted to manage and conduct causes therein.” Although a non-lawyer is

entitled to represent herself pro se, she may not appear pro se on behalf of

another person or entity. Schneller v. Crozer Chester Med. Ctr., 276 F. App’x

169, 170 n.1 (3d Cir. 2008). That rule has particular application to an

appearance on behalf of an entity that is not a natural person. See also

Marrakush Soc’y v. N.J. State Police, No. 09-2518, 2009 U.S, Dist. LEXIS 68057

at *92 (D.N.J. July 30, 2009) (“Any juridical entity (meaning, any

fictitious /artificial/legal person) cannot appear in legal proceedings pro se.”).

In Estate of Twardy v. Lakes of Larchmont Condo Ass’n, No. 15-6501,

2016 U.S. Dist. LEXIS 65322 at *1, 2016 WL 2901664 (D.N.J. May 18, 2016)

(Hillman, J.}, the estate’s executor filed a pro se complaint on behalf of the

estate. Id. The case came before the court on plaintiff's in forma pauperis

motion, but the court expanded its inquiry to consider whether the executor

was entitled to prosecute the action in the first place. Jd. at *2 (“[I]t is highly

questionable whether an executor of an estate who is not an attorney may file

suit on behalf of an estate.”).

Estate of Twardy collects some of the most pertinent case law. It cites,

but does not explicitly adopt, the most liberal standard of pro se

further analysis is required because it would make no difference. Where, as here, the

jurisdictional challenge is directed to the face of the complaint, the court’s standard of

review is indistinguishable from the familiar Rule 12(b)(6) standard.)). “A facial 12(b)(1)

challenge, which attacks the complaint on its face without contesting its alleged facts,

is like a 12(b)(6) motion in requiring the court to ‘consider the allegations of the

complaint as true.” Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d

Cir. 2016) (citation omitted).

90

representation, which is that an executor may represent the estate pro se, but

only if she is the sole beneficiary and the estate has no creditors:

The executor of the Estate, Francis Twardy, is not an attorney and

is prosecuting the claims of the Estate. The United States Supreme

Court in Rowland v. Cal. Men’s Colony, 506 U.S. 194, 201-02

(1993) reinforced the rule that corporations and other artificial

entities may appear in federal court only through counsel. Thus, it

is highly questionable whether an executor of an estate who is not

an attorney may file suit on behalf of an estate. See, e.g., In re

Olick, 571 F. App’x 103, 106 (3d Cir. 2014) (citing Rowland, 506

U.S. at 201-02) (other citation omitted) (finding that a pro se

trustee may not represent the trust in federal court because he is

not an attorney and without counsel the trust may not appear in

federal court); cf. Gray, 352 F. App’x at 656 n.1 (citing Pridgen v.

Andresen, 113 F.3d 391, 393 (2d Cir. 1997)) (noting that the

appeal also raised a question as to whether Gray, as a non-lawyer,

may represent the estate, but not reaching the question because

the decision was based on the holding that the estate may not

proceed in forma pauperis); Caputo v. Forceno, No. 15-1911, 2015

U.S. Dist. LEXIS 58536 at *2 (E.D. Pa. May 5, 2015) (“Federal

courts generally will only permit a non-attorney to proceed pro se

in her capacity as the administratrix of an estate when she is the

sole beneficiary and the estate has no creditors.”) (citing Johnson v.

Marberry, 549 F. App’x 73, 75 (3d Cir. 2013) (per curiam) (pro se

litigant could not prosecute claims on behalf of estate/heirs);

Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007) (per curiam)

(“{I]f the administrator is not the sole beneficiary of the estate, then

he or she may not represent the estate in court.”); Jones ex rel.

Jones v. Corr. Med. Servs., Inc., 401 F.3d 950, 952 (8th Cir. 2005)

(“(Wjhen an estate has beneficiaries or creditors other than the

administratrix or executrix, the action cannot be described as the

litigant’s own, because the personal interests of the estate, other

survivors, and possible creditors will be affected by the outcome of

the proceedings.”))

Id. at *2-3.

Even under the most liberal view, then, a pro se plaintiff purporting to

represent a decedent’s estate must demonstrate that the estate has no other

beneficiaries or creditors. The purpose of this rule is to ensure that the rights

of the estate’s beneficiaries or creditors are adequately protected. See Murray v.

97

City of Phila., 901 F.3d 169, 171 (3d Cir. 2018) (“Attorneys’ training,

experience, and their ‘ethical responsibilities and obligations’ help ensure that

a represented party’s interests are not squandered ... . Only attorneys may be

sued for legal malpractice; a represented party could not seek recourse against

a non-attorney for even the most egregious conduct.” (citations omitted)).

Ms. Laibow’s opposition fails to establish that she should be permitted to

proceed as the pro se representative of Gen. Stubblebine’s estate. The

complaint is consistent with a conclusion that Ms. Laibow is the sole

beneficiary of the estate—it states that at the time of his death, Gen.

Stubblebine was without known children—but it does not precisely allege that.

(DE 1 7 3)6 At any rate, the complaint fails to allege the other prerequisite—

that the estate does not have any creditors.

Ms. Laibow’s brief in opposition relies on authority that is not quite on

point:

[C]ontrary to Defendants’ unwarranted misrepresentations, both

New Jersey law (N.J.R 1:21-1(4) ... and [] Third Circuit case law

have plainly held that a pro se party, who is the real party in

interest in an estate (as the Plaintiff is as the sole beneficiary of the

Estate of the Decedent), may in fact appear and speak for that

estate while acting pro se. See, e.g., Murray v. City of Philadelphia,

No. 16-3145 [901 F.3d 169] (3rd Cir. 2018)....

(DE 20 { 4).

N.J.R. 1:21-1(4) is a state court rule. It provides that “[a] person not

qualifying to practice pursuant to the first paragraph of this rule shall

nonetheless be permitted to appear and prosecute or defend an action in any

court of this State if the person... is a real party in interest to this action.” I

cannot apply state law standards as to who is a “real party in interest,”

6 To her opposition brief, Ms. Laibow attaches a copy of what purports to be Gen.

Stubblefield’s Last Will and Testament. (DE 20, Ex. A) Analysis of the status of the

heirs and creditors nevertheless remains outside the scope of this, a Rule 12(b)(6)

motion to dismiss the complaint.

yy

however. A federal court sitting in diversity is bound to apply federal—not

state—rules of court procedure. See Erie, 304 U.S. at 78.

The cited Murray decision does address federal standards. It does not

directly support Ms. Laibow’s position here, however, because it was deciding a

different issue.

Murray cites at length the general rule that a non-lawyer may not

represent another person or entity in federal court:

Although an individual may represent herself or himself pro se, a

non-attorney may not represent other parties in federal court. See

Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 232 (3d Cir.

1998} (“The rule that a non-lawyer may not represent another

person in court is a venerable common law rule.”), abrogated on

other grounds by Winkelman ex rel. Winkelman v. Parma City Sch.

Dist., 550 U.S. 516 (2007). This principle has been applied by the

Supreme Court, this Court, and other courts in various contexts.

See, e.g., Rowland v. Cal. Men’s Colony, 506 U.S. 194, 202 (1993)

(recognizing that corporations must be represented by counsel and

that “save in a few aberrant cases, the lower courts have uniformly

held that 28 U.S.C. § 1654... . does not allow corporations,

partnerships or associations to appear in federal court otherwise

through a licensed attorney” (footnote omitted)); Simon v. Hartford

Life, Inc., 546 F.3d 661, 667 (9th Cir. 2008) (holding that a non-

lawyer could not litigate pro se on behalf of an ERISA plan); Oset-

Afriyie [v. Med. Coil. of Pa.|, 937 F.2d [876,] 882 [(3d Cir. 1991)]

(‘We hold that Osei-Afriyie, a non-lawyer appearing pro se, was not

entitled to play the role of attorney for his children in federal

court.”); Phillips v. Tobin, 548 F.2d 408, 411-12 (2d Cir. 1976)

(holding that a non-attorney could not appear pro se to conduct a

shareholder’s derivative suit).

Murray, 901 F.3d at 170-71.

Murray then disallows representation by a plaintiff who, unlike Ms.

Laibow, was a non-beneficiary administrator of the estate. Thus Murray’s

holding neither favors nor disfavors Ms. Laibow’s position here. In so holding,

however, Murray emphasized the policy considerations underlying the general

rule requiring attorney representation:

aa

We turn to whether a non-attorney, non-beneficiary administrator

like Murray conducts her “own case” when representing an estate

in federal court. 28 U.S.C. § 1654. The answer is no. If an estate

has one or more beneficiaries besides the administrator, then the

case is not the administrator’s own because the interests of other

parties are directly at stake. The interests of other parties, such as

beneficiaries, may not be represented by a non-attorney

administrator of an estate. Accordingly, we hold that this case is

not Murray’s own and that she may not conduct it pro se on behalf

of her granddaughter, the estate’s sole beneficiary.

Our holding accords with those of our sister Courts of Appeals to

consider the question we decide today. Further, practical

considerations support our holding. Attorneys’ training,

experience, and their “ethical responsibilities and obligations” help

ensure that a represented party’s interests are not squandered.

Collinsgru, 161 F.3d at 231; see Osei-Afriyie, 937 F.2d at 882

(holding that a pro se father’s “lack of legal experience has nearly

cost his children the chance ever to have any of their claims

heard.”). Only attorneys may be sued for legal malpractice; a

represented party could not seek recourse against a non-attorney

for even the most egregious conduct. See Collinsgru, 161 F.3d at

231. Accordingly, our holding limiting pro se representation

pursuant to § 1654 “serve[s] the interests of the represented party

as well as the interests of adversaries and the court.” Pridgen, 113

F.3d at 393.

Murray, 901 F.3d at 171-72.

All of that said, the Murray decision might be read to suggest in dictum

that, if faced by the issue, it would adopt what I have termed the “liberal view”

that the sole beneficiary of an estate with no creditors may represent it in

federal court. Murray cited with approval several cases that, if only by negative

implication, acknowledge or adopt that view:

See, e.g., Rodgers [v. Lancaster Police & Fire Dep’t, 819 F.3d 205,

211 (Sth Cir. 2016)]; (holding that a person may represent an

estate pro se “if that person is the only beneficiary and the estate

has no creditors”); Malone v. Nielson, 474 F.3d 934, 937 (7th Cir.

2007) (per curiam) (“[I]f the administrator is not the sole

beneficiary of the estate, then he or she may not represent the

estate in court.”); Jones [ex rel. Jones v. Corr. Med. Servs., Inc., 401

9a

F.3d 950, 952 (8th Cir. 2005)] (“[The administrator] is not the only

beneficiary /creditor of [the] . . . estate. Thus, as a nonattorney, [he]

may not engage in the practice of law on behalf of others.”);

Shepherd v. Wellman, 313 F.3d 963, 970-71 Cir. 2002);

Pridgen, 113 F.3d at 393 (“[A]n administratrix ... of an estate may

not proceed pro se when the estate has beneficiaries or creditors

other than the litigant.”); see also Reshard v. Britt, 839 F.2d 1499

(11th Cir. 1988) (en banc) {plurality opinion) (per curiam) (affirming

by operation of law as a result of an equally divided en banc court

the district court’s ruling that estate representatives could not

proceed pro se when the estate had other beneficiaries).

Murray, 901 F.3d at 172 n.3.

Ms. Laibow has not pled or otherwise established both that she is the

sole beneficiary of the estate and that there are no other creditors. Dr. Casale’s

motion to dismiss is therefore GRANTED. The dismissal is, however, without

prejudice, because it is not futile to anticipate that this defect could be cured—

if not by amendment of the complaint, then surely by retention of an attorney

to represent the estate.

Ill. CONCLUSION

For the reasons set forth above, the motions to dismiss are GRANTED.

The dismissal as against Kindred is with prejudice, as the claim must be

pursued in arbitration. The dismissal as against Dr. Casale is without

prejudice to a curative amendment or retention of an attorney to represent the

estate within 30 days.

An appropriate order follows.

Dated: November 21, 2019 7 ; ( (AS

Hon. Kevin McNulty

United States District Judge

as