UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

THI OF NEW MEXICO AT HOBBS CENTER, LLC; THI OF NEW MEXICO, LLC, Plaintiffs-Appellees,

v. JASON SPRADLIN, as personal representative of the wrongful death estate of Douglas A. Spradlin, Jr., deceased, Defendant-Appellant. No. 12-2182 (D.C. No. 2:11-CV-0792-MV-LAM) (D. N.M.)

ORDER AND JUDGMENT *

Before HOLMES , HOLLOWAY , and BACHARACH , Circuit Judges.

Mr. Douglas Spradlin died not long after being removed from the PlaintiffsAppellees’ nursing home. Mr . Spradlin’s son, Jason, 1 brought a wrongful-death

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 20, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - action in state court. The Plaintiffs-Appellees then file d suit in federal court to compel arbitration, with di versity jurisdiction being alle ged and not disputed. Jason now appeals from a federal di strict court order compelling arbitration of the wrongful death action. We have appellate jurisdictio n under 28 U.S.C. § 1291, and we affirm.
B ACKGROUND In August 2006, Mr. Douglas Spradlin was admitted to THI of New Mexico at Hobbs Center, LLC, a nursing home, for lo ng-term care and treatment of his dementia. He was accompani ed by his daughter, Melissa. Upon admission, Mr. Dougla s Spradlin signed a “Dur able Power of Attorney for Financial and Healthcare Decision Maki ng,” appointing Jason and Melissa as his attorneys in fact. Aplt. App. at 27. Melissa then signed a six-page “Admission Contract.” In doing so, she checked a box indicating that she was “execut[ing] th[e] Contract in the capacit(y)” of “Immediate Family Member,” rath er than “Attorney-inFact under validly executed power of attorney.” Id. at 25. Mr. Douglas Spradlin did not sign the Admission Contract. The contract contains a clause requiri ng that any dispute between the parties regarding the Hobbs Center’s provision of h ealthcare services be resolved by binding arbitration:

1 For the sake of clarity throughout this order and judgment, we follow Defendant-Appellant’s conventi on and refer to Mr. Spradlin ’s children by their first names.- 3 - VI. Arbitration Pursuant to the Federal Arbitr ation Act, any action, dispute, claim, or controversy of any kind (e.g., whether in contract or tort, statutory or common law, legal or e quitable, or otherwise) now existing or hereafter arising between the pa rties in any way arising out of, pertaining to or in connection w ith the provision of healthcare services . . . causing inju ry to either party wher eby the other party or its agents, employees or representativ es may be liable, in whole or in part, . . . shall be reso lved by binding arbitrati on administered by the National Health Lawyers A ssociation (the “NHLA”). Id. at 24. Directly below this clause and immediately above the signature lines is a provision stating that “THE UNDERS IGNED ACKNOWLEDGE THAT EACH OF THEM HAS READ AND UNDERSTOOD THIS CONTRACT, AND THAT EACH
OF THEM VOLUNTARILY CONSENTS TO ALL OF ITS TERMS.” Id. Mr. Douglas Spradlin lived at Hobbs Center for roughly two-and-a-half years. On March 6, 2009, he was removed from th e home and he died five days later. In June 2011, Jason, as the personal representative of his father’s estate, sued THI and other defendants in New Mexico state court for wrongful death. In response, THI filed a complaint in federal district court to compel arbitration. Jason then moved to dismiss THI’s complaint, arguing that the arbitration agreement was invalid and unenforceable. In support of her brother’s motion to dismiss, Melissa submitted an affidavit, sta ting that when she signed the Admission Contract, she “did not know what the term arbitration meant” and that she “felt rushed while signing the documents.” Id. at 202. Additionally, Melissa stat ed she did not believe that her father was capable of understanding the power of attorney that he signed.- 4 - The district court concluded that it ha d diversity jurisdiction over the matter and that the arbitration agreement was va lid and enforceable. Having resolved the only issue present, the cour t then dismissed the case.
D ISCUSSION I. Standards of Review The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, embodies the national policy favoring arbitration. Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440, 443 (2006). “Although the [Supreme] Court has . . . long recognized and enforced a liberal federal policy favoring ar bitration agreements, . . . the question of arbitrability [ ] is an issue for judicial determ ination unless the pa rties clearly and unmistakably provide otherwise.” Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79, 83 (2002) (citation, brackets, and internal quotation marks omitted). “[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Id. (internal quotation marks omitted). “Generally, courts should apply ordinary state-law pr inciples that govern the formation of contracts to determine whether a party has agreed to arbitrate a dispute.” Hardin v. First Cash Fin. Servs., Inc. , 465 F.3d 470, 475 (10t h Cir. 2006) (internal quotation marks omitted). We review de novo a district court’s decision compelling arbitration. Hancock v. Am. Tel. & Tel. Co., Inc. , 701 F.3d 1248, 1261 (10th Cir. 2012), cert. denied , 133 S. Ct. 2009 (2013).- 5 - II. Binding Effect of the Admission Contract A. On Mr. Douglas Spradlin Jason argues that Melissa had no author ity to sign the Admission Contract and bind their father because the power of attorn ey, which appointed her as an attorney in fact, was signed by their fath er while he was incompeten t. But, as noted by the district court in its order co mpelling arbitration, the power of attorney is irrelevant because Melissa signed the Admission Contract , not pursuant to her authority as her father’s attorney in fact, but simply as “Immedia te Family Member.” Aplt. App. at 25. But more importantly, in the district court, Ja son did not dispute THI’s assertion that Mr. Douglas Spradlin, desp ite not signing the Admission Contract, was bound by it as a third-party beneficiary. And the dist rict court deemed Jason’s silence as a “concessi on of this point.” Id. at 394 n.1. Arguments not raised in the district court “are waived for purposes of appeal.” Quigley v. Rosenthal , 327 F.3d 1044, 1069 (10th Cir. 2003). Additionally, Jason rais es the third-party-beneficiary issue only in his reply brief before this c ourt. Generally, a party may not attempt to dispute an issue for the firs t time in a reply brief. See Reedy v. Werholtz , 660 F.3d 1270, 1274 (10t h Cir. 2011). Moreover, in arguing before this cour t that the wrongful-death beneficiaries are not bound by the Admission Contract under a third-party beneficiary theory, which we address below in Part II.B., Jas on asserts that Mr. Douglas Spradlin is- 6 - indeed bound under a third-party-benefi ciary theory: “The contract only was intended to benefit [Mr. Douglas Spradlin], so only he (and perhaps his estate) are bound by its terms.” Ap lt. Opening Br. at 34. Accordingly, we reject Jason’s argumen ts that the Admission Contract is not binding on Mr. Douglas Spradlin. B. On Wrongful-Death Beneficiaries Jason contends that “[t]he arbitrati on [clause] cannot be applied against the wrongful death beneficiaries” like himself who did not si gn the Admission Contract. Aplt. Opening Br. at 33-34. We disagree. 2 “Generally, third parties who are not si gnatories to an arbitration agreement are not bound by the agreement and are not subject to . . . arbitration.” Horanburg v. Felter , 99 P.3d 685, 689 (N.M. Ct. App. 2004 ) (employment discrimination case). But New Mexico’s Wrongful Death Act, N.M. Stat. Ann. § 41-2-1 - § 41-2-4, “transmits to the personal re presentative the cause of ac tion which the injured person would have had if death had not ensued.” Stang v. Hertz Corp. , 463 P.2d 45, 55 (N.M. Ct. App. 1969). Thus, the wr ongful-death statute confers upon the beneficiaries those rights that the deceden t would have possessed had he lived. See

2 Additionally, Jason cursorily argues that the arbitration clause cannot bind the beneficiaries because the (1) Admission C ontract terminated when Mr. Douglas Spradlin died; and (2) “[t]he wrongful d eath beneficiaries are not parties to the agreement.” Aplt. Opening Br. at 34. Bu t he did not make these arguments below, and therefore, they are waived. See Quigley , 327 F.3d at 1069. Further, perfunctory arguments that fail to frame and develop an issue are in sufficient to invoke appellate review. Murrell v. Shalala , 43 F.3d 1388, 1390 n.2 (10th Cir. 1994).- 7 - N.M. Stat. Ann. § 41-2-1 (providing a cause of action for the st atutory beneficiaries insofar as the decedent, had he lived, could have “maintai n[ed] an action and recover[ed] damages”); Romero v. Byers , 872 P.2d 840, 846 (N.M. 1994) (characterizing the wrongful d eath statute as a survival st atute that “provides a cause of action for the benefit of the statutory beneficiaries to sue a tortfeasor for the damages . . . which the decedent himself w ould have been entitled to recover had death not ensued” (internal quotation marks omitted)); Hogsett v. Hanna , 63 P.2d 540, 543 (N.M. 1936) (stating that the wrongful -death statute, instead of “creat[ing] a new cause of action,” “transmi ts to the designated persons a cause of action when the injured person would have had one had death not ensued”). There is a split of author ity among the states regarding the binding effect of arbitration provisions on nons ignatory, wrongful-death heirs. “States that bind such plaintiffs generally view wrongful death clai ms as derivative of the decedent’s claim, or focus on the public policy favoring arbitra tion agreements. Stat es that do not bind claimants generally emphasize the independ ence of the wrongful death claim or the need for consent in creating binding arbitration.” Ruiz v. Podolsky , 237 P.3d 584, 591 n.2 (Cal. 2010) (citations omitted). We conclude that in New Mexico, a wrongful-death claim derives directly from the claim possessed by the decedent, had he or she liv ed. Thus, in New Mexico, as in Mississippi, Florida, Texas, and Michigan, a “wrong ful-death suit is a derivative action by the beneficiaries, a nd those beneficiaries, theref ore, stand in the position of- 8 - their decedent.” Trinity Mission of Clinton, LLC v. Barber , 988 So. 2d 910, 919 (Miss. Ct. App. 2007); see also Laizure v. Av ante at Leesburg, Inc. , 109 So. 3d 752, 761-62 (Fla. 2013) (“[T]he nature of a wrongf ul death cause of action in Florida is derivative in the context of determining whether a decedent’s es tate and heirs are bound by the decedent’s agreemen t to arbitrate. The esta te and heirs stand in the shoes of the decedent for purposes of whet her the defendant is liable and are bound by the decedent’s actions and contracts with respect to defens es and releases.”); In re Labatt Food Serv., LP , 279 S.W.3d 640, 646 (Tex. 200 9) (“[R]egardless of the fact that [decedent’s] beneficiaries are seeking compensation for their own personal loss, they still stand in [d ecedent’s] legal shoes and ar e bound by his agreement.”); Ballard v. Sw. Detroit Hosp. , 327 N.W.2d 370, 371-72 (M ich. Ct. App. 1982) (“[A]lthough the Michigan wrongful death act provides for additional damages benefitting the decedent’s next of kin for lo ss of society and companionship, it does not create a separate cause of action i ndependent of the underlying rights of the decedent. Rather, the cause of action is expressly made derivative of the decedent’s rights.”). Consequently, because Mr. Dougl as Spradlin was bound by the arbitration clause as a third-party beneficiary, th e non-signatory, wrongful -death beneficiaries are likewise bound.- 9 - III. Procedural Unconscionability Jason argues that the arbitration cl ause in the Admission Contract is procedurally unconscionable because the contract is an a dhesion contract. “[U]nconscionability is an equitable doctrine, rooted in public policy, which allows courts to render unenforceable an agreemen t that is unreasonably favorable to one party while precluding a meaningful choice of the other party.” Strausberg v. Laurel Healthcare Providers, LLC , No. 33,331, __ P.3d __, 2013 WL 3226753, at *7 (N.M. June 27, 2013) (interna l quotation marks omitted). An adhesion contract is a “standardized contract offered by a tran sacting party with superior bargaining strength to a weaker party on a take-it-o r-leave-it basis, without opportunity for bargaining.” Id. at *8 (internal quota tion marks omitted). It “is procedurally unconscionable and unenforceable when the te rms are patently unfair to the weaker party.” Id. (brackets and internal quotation ma rks omitted). The party claiming unconscionability bears the burden to prove this affirmative c ontract defense. Id. at *9. In support of his argument that Melissa executed an unconscionable adhesion contract, Jason cite s Melissa’s affidavit statem ents that she has only an eleventh-grade education, she did not know what “arbitration” meant, and she “felt rushed” while signing the documents. Aplt. Op ening Br. at 29. Bu t these statements do not indicate (1) whether THI was in a su perior bargaining position, as might occur if there were no other suitable and availa ble nursing homes for Mr. Douglas Spradlin,- 10 - see Fiser v. Dell Computer Corp. , 188 P.3d 1215, 1221 (N.M. 2008) (noting “there was no evidence that Plain tiff could not avoid doing bu siness under the particular terms mandated by Defendant”); or (2) whether the Admission Contract was presented to Melissa on a take -it-or-leave-it basis. A nd despite Melissa’s limited education and her feeling rushed to sign the documents, nothing indicates that she was incapable of understanding the arbitrat ion clause or that THI used “sharp practices or high pressure tact ics” to secure her signature, Guthmann v. LaVida Llena , 709 P.2d 675, 679 (N.M. 1985), overruled in part on other grounds by Cordova v. World Fin. Corp. of N.M. , 208 P.3d 901 (N.M. 2009). Indeed, the arbitration clause was followed prominen tly by clear language above the signature lines indicating that she had read, understood, and consente d to all the terms of the Admission Contract. Therefore, we concl ude that the Admission Contract was not procedurally unconscionable. IV. Breach of Fiduciary Duty Jason argues “that THI breached fiduciary duties to [Mr. Douglas Spradlin] by presenting a mandatory arbitration agreemen t without full disclosure and making sure Melissa understood all its term s and ramifications,” and by “having [Mr. Douglas Spradlin] sign the Power of At torney knowing that he wa s mentally incompetent.” Aplt. Opening Br. at 31. But Jason does no t identify any New Mexico case declaring that a nursing home has a fiduciary duty to a prospective patient who has not yet entered into an admission contract. Indeed , in the analogous context of applying for- 11 - insurance, the New Mexico Court of Appeal s has expressly declin ed to impose such a duty prior to the formation of a contract: [W]e decline to acknowledge the exis tence of the insurer’s fiduciary duty before the issuance of the policy. At the application stage, the relationship between insurer and insure d is similar to that of buyer and seller, and the transacti on is little more than an arms-length negotiation involving the purchase of insura nce. Ordinarily, a buyer-seller relationship is not fiduciary in natu re, even though th e seller typically has superior bargaining power and kn owledge. An essential feature and consequence of a fiduciary relations hip is that the fiduciary becomes bound to act in the interests of [its] beneficiary and not itself. Obviously, this dynamic does not inhe re in the ordinary buyer-seller relationship. Azar v. Prudential Ins. Co. of Am. , 68 P.3d 909, 926 (N.M. Ct. App. 2003) (brackets, citation, and internal qu otation marks omitted). Similarly, in the context of seeki ng nursing-home services, the prospective patient and the nursing home are in a relati onship resembling a buye r and seller, with no services forthcoming until after contract formation. Until that time, the prospective patient and the nursing home ar e engaged in no more than negotiations for services, with the patient free to walk away if he or she deems the offered services unsatisfactory. We conclude then, that New Mexico would not recognize a fiduciary duty between a nursing home and a prospectiv e patient during negotiations over an admission contract. Thus , Jason’s breach-of-fiduciary-duty argument fails.- 12 - V. Discovery Jason contends that the di strict court should not have decided this case without providing an opportunity fo r discovery. We disagree. In enacting the FAA, Congress intended th at proceedings to compel arbitration be “expeditious and summary,” “with only rest ricted inquiry into factual issues.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 22 (1983). To obtain discovery in opposition to a moti on to compel arbitrat ion, the arbitration opponent must at least s how how discovery would “assi st[ ] them in opposing the motion to compel arbitration.” Wolff v. Westwood Mgmt., LLC , 558 F.3d 517, 521 (D.C. Cir. 2009). But in the district cour t, Jason provided little specif icity as to why discovery was necessary on the issues relevant to opposi ng arbitration. Indeed , he stated that if the district court was “dis inclined to” rule “that th e arbitration agreement is unenforceable,” “it should perm it discovery and conduct an evidentiary hearing.” Aplt. App. at 261. On appeal, Jason indicates that discovery was necessary “on whether [Mr. Douglas Spradlin] had me ntal capacity to sign the Po wer of Attorney.” Aplt. Opening Br. at 13. As we indicated above , however, that issue is irrelevant and subject to various pro cedural infirmities. See supra Part II.A. (concluding that the power of attorney is irrele vant because Melissa signed th e Admission Contract as a- 13 - family member rather than as her father’s attorney in fact, that the issue was not properly raised, and that Ja son conceded the issue). Jason next claims that discovery was needed to ascertain whether the Admission Contract is procedurally unconsc ionable. He questions whether “Melissa felt pressured, had no reasona ble alternative, or did not fully comprehend what she was signing.” Id. at 14. The answers to those que stions, however, were available to Jason through Melissa, who had already provided an affidavi t to aid Jason. Lastly, Jason asserts that discovery wa s needed to support his “defense that THI breached fiduciary duties owed to [Mr. Douglas Spradlin].” Id. We determined above that New Mexico would not recogni ze such a defense. Thus, discovery regarding such a defense is irrelevant. We conclude that the di strict court did not abuse its discretion in rejecting Jason’s request for discovery. C ONCLUSION The judgment of the dist rict court is affirmed. 3
Entered for the Court
William J. Holloway, Jr. Circuit Judge

3 Jason argues that “[i]n determining a remand remedy, the Court is reminded that THI has not produced most of the nursing home’s records for [Mr. Douglas Spradlin’s] first several mont hs of admission.” Aplt. Op ening Br. at 20-21. Because we affirm the district court’s judgment, we do not reach Jas on’s remand argument.