IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOAN DONOFRIO,

Plaintiff,

v. 

PENINSULA HEALTHCARE

SERVICES, LLC, a Delaware Limited

Liability Company, ONIX GROUP,

LLC, a Delaware Limited Liability

Company, and LONG TERM CARE

CORP., a Delaware Corporation,

Defendants.

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) C.A. No. N21C-07-122 MAA

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Submitted: March 4, 2022

Decided: April 8, 2022

Upon Defendants’ Motion to Dismiss Plaintiff's Complaint Pursuant to Delaware 

Superior Court Civil Rule 12(b)(1)

GRANTED in part.

MEMORANDUM OPINION

Benjamin A. Schwartz, Esquire (Argued), of SCHWARTZ AND SCHWARTZ, Dover, 

Delaware, Attorney for Plaintiff.

Maria R. Granaudo Gesty, Esquire, of BURNS WHITE LLC, Wilmington, Delaware

(Argued), Attorney for Defendants.

Adams, J.
2

Plaintiff Joan Donofrio (“Plaintiff”) brought a medical malpractice action 

against Defendants Peninsula Healthcare Services, LLC, Onix Group, LLC, and 

Long Term Care Corp. (collectively, “Defendants”) for injuries sustained at 

Defendants’ long-term care facility. Defendants moved to dismiss under Superior 

Court Civil Rule 12(b)(1) for lack of subject matter jurisdiction pursuant to an 

agreement to arbitrate. Plaintiff contends that the arbitration agreement is invalid 

and unenforceable.

For the reasons stated below, the Court holds there is a valid and enforceable 

arbitration agreement covering Plaintiff’s claims. The Court, therefore, stays the 

case pending the outcome of arbitration.

II. BACKGROUND

A. Relevant Facts

Plaintiff was admitted to Cadia Rehabilitation Renaissance (the “Facility”) on 

November 30, 2019 for physical therapy from a hip fracture. The Facility is owned 

and operated by Defendants.

Upon admission to the facility, Plaintiff’s daughter, Chris Johnson, 

accompanied her. The Facility presented Plaintiff with admission documents. 

Plaintiff signed above the “Resident” line, and Chris signed above the “Responsible 

Party” line.1

1 Pl.’s Resp. Br. Ex. A.
3

Two days later, on December 2, 2019, the Facility presented Plaintiff with 

additional admission documents. These documents included the “Receipt of 

Admission Documentation Acknowledgement Form,”2“Authorization for 

Services,”3“Consent for Treatment,”

4

“Advance Directives,”5“Authorization for 

Release,”6and a “Binding Arbitration Agreement”7(the “Agreement”). Plaintiff 

signed each document. Plaintiff’s Resident Sheet and Advanced Directives form 

indicated that Plaintiff was her own responsible party and that she did not have a 

power of attorney for healthcare.8 Plaintiff’s counsel confirmed at the Motion to 

Dismiss hearing on February 1, 2022 that Plaintiff did not have a power of attorney 

when she signed the Agreement.9

The Agreement provides, in part:

ANY, DISPUTE, DISAGREEMENT, CONTROVERSY, 

DEMAND, OR CLAIM, INCLUDING BUT NOT LIMITED TO, 

LEGAL CLAIMS, arising between them regarding any service or 

health care provided to Resident by Facility, even if such dispute arises 

after the Resident’s stay at the Facility has ended shall be submitted to 

BINDING ARBITRATION and EXCLUSIVELY RESOLVED BY 

ARBITRATION, except as otherwise set forth below.10

2 Defs.’ Br. Ex. B.

3 Defs.’ Br. Ex. E.

4 Defs.’ Br. Ex. F.

5 Defs.’ Br. Ex. G.

6 Defs.’ Br. Ex. I.

7 Defs.’ Br. Ex. A.

8 Defs.’ Br. Ex. D, G.

9 Transcript of Oral Argument at 41:7-11.

10 Defs.’ Br. Ex. A.
4

On December 10, 2019, Plaintiff fell and sustained injuries at the Facility. 

Plaintiff then brought a medical negligence action against Defendants for those

injuries.

B. Procedural Posture

Plaintiff commenced this action by filing a Complaint against Defendants on 

July 16, 2021. Defendants filed their Answer on September 13, 2021 and included

as an affirmative defense that the Court lacked subject matter jurisdiction pursuant 

to a valid and enforceable arbitration agreement. Defendants also moved for review

of Plaintiff’s Affidavit of Merit to determine whether it complied with 18 Del. C. § 

6853.

On September 20, 2021, Defendants filed a Motion to Dismiss pursuant to 

Superior Court Civil Rule 12(b)(1) for lack of subject matter jurisdiction.

Defendants filed their brief in support of the motion on October 28, 2021. Plaintiff 

filed their opposition to the Motion to Dismiss on November 29, 2021. The Court 

heard oral argument on the motion on February 2, 2022.11

11 On March 4, 2022, Plaintiff filed a letter addressing the recently enacted 

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. 

Plaintiff argued that the new law conflicts with the federal presumption in favor of 

arbitration. The new law, however, is irrelevant to the case at bar because the case 

does not involve allegations of sexual assault or sexual harassment. The federal law 

also does not impact Delaware’s history of public policy favoring arbitration. See 

D.I. 29.
5

IV. STANDARD OF REVIEW

Pursuant to Superior Court Civil Rule 12(b)(1), the Court must dismiss an 

action if it appears from the record that the Court does not have jurisdiction over the 

claims.12 The burden of establishing the Court’s subject matter jurisdiction rests

with the party seeking the Court’s intervention.13 In reviewing a motion to dismiss 

for lack of subject matter jurisdiction, the Court may consider documents outside of 

the pleadings14 and “need not accept Plaintiff’s factual allegations as true.”

15

Delaware courts lack subject matter jurisdiction over claims the parties 

contractually agreed to arbitrate.16 Although this Court cannot compel arbitration, 

the Court can determine whether an enforceable arbitration agreement exists for 

12 Super. Ct. Civil R. 12(b)(1).

13 Sun Life Assurance Co. of Canada - U.S. Operations Hldgs., Inc. v. Gp. One 

Thousand One, LLC, 206 A.3d 261, 265 (Del. Super. 2019) (citing Appriva 

Shareholder Litigation Co., LLC v. EV3, Inc., 937 A.2d 1275, 1284 n.14 (Del. 

2007)).

14 Dewey v. Amazon.com, Inc., 2019 WL 3384769, at *2 (Del. Super. July 25,

2019) (citing NAMA Hldgs., LLC v. Related World Market Center, LLC, 922 A.2d

417, 429 n. 15 (Del. Ch. 2007)).

15 Appriva Shareholder Litigation Co., LLC v. EV3, Inc., 937 A.2d 1275, 1285 

n.14 (Del. 2007) (quoting Philips v. County of Bucks, 1999 WL 600541, at *1 (E.D. 

Pa. Aug. 9, 1999) (“Unlike the standards employed in Rule 12(b)(6) analysis, the 

guidelines for the Court’s review of a Rule 12(b)(1) motion are far more demanding 

of the non-movant. The burden is on the Plaintiffs to prove jurisdiction exists. 

Further, the Court need not accept Plaintiffs factual allegations as true and is free to 

consider facts not alleged in the complaint.”)).

16 West IP Commc’ns, Inc. v. Xactly Corp., 2014 WL 3032270, at *5 (citing 

Aquila of Del., Inc. v. Wilmington Trust Co., 2011 WL 4908406, at *1 (Del. Super. 

Oct. 10, 2011) (internal quotations omitted)).
6

purposes of subject matter jurisdiction.

17

 Delaware’s public policy has a strong 

presumption in favor of arbitration.18 This policy aligns with federal policy favoring

arbitration as evinced in the Federal Arbitration Act (“FAA”). Accordingly, any 

doubt as to arbitrability should be resolved in favor of arbitration.19

V. DISCUSSION

To resolve Defendants’ motion to dismiss, the Court must engage in a threestep inquiry. First, the Court must determine whether this Court or an arbitrator 

should decide substantive arbitrability.20 Second, the Court must determine whether 

a valid and enforceable arbitration agreement exists.

21

 Finally, the Court must 

determine whether Plaintiff’s claim falls within the scope of the arbitration 

agreement.22

17 Jones v. 810 Broom St. Operations, 2014 WL 1347746, at *1 (Del. Super. 

June 25, 2014).

18 Kuhn Constr., Inc. v. Diamond State Port Corp., 990 A.2d 393, 396 (Del. 

2010) (citing SBC Interactive, Inc. v. Corporate Media Partners, 714 A.2d 758, 761 

(Del. 1998); NAMA Hldgs., 922 A.2d at 429 (“[T]he strong public policy in favor of 

arbitration embodied in federal law is given equal respect in this State...”); Dewey, 

2019 WL 3384769, at *3 (“The FAA evinces a strong federal policy favoring 

enforcement of arbitration agreement.”).

19 Parfi Hldg. AB v. Mirror Image Internet, Inc., 817 A.2d 149, 156 (Del. 2002).

20 GTSI Corp. v. Eyak Tech., LLC, 10 A.3d 1116, 1119 (Del. Ch. 2010).

21 Parfi, 817 A.2d at 155.

22 Id.
7

A. The Court Decides Substantive Arbitrability.

As a threshold matter, the Court must determine whether substantive 

arbitrability should be decided by the Court or an arbitrator.23 “The question of 

whether the parties agreed to arbitrate is generally one for the courts to decide and 

not for the arbitrators.”24 It is presumed that substantive arbitrability is an issue for 

judicial determination unless there is “clear and unmistakable evidence” to the 

contrary.

25

The “clear and unmistakable” standard can be satisfied by an express 

provision that substantive arbitrability will be determined by an arbitrator.26 Absent 

such an express provision, the Supreme Court of Delaware in James & Jackson, LLC 

v. Willie Gary, LLC27 articulated a two-pronged test for determining whether the 

“clear and unmistakable” standard is satisfied: 1) a statement that generally refers 

all disputes to arbitration; and 2) a reference to a set of rules, such as the American 

Arbitration Association (“AAA”), that would empower arbitrators to decide 

arbitrability.28

23 West IP Commc’ns, Inc., 2014 WL 3032270, at *6.

24 DMS Properties-First, Inc. v. P.W. Scott Assocs., Inc., 748 A.2d 389, 392 

(Del. 2000).

25 James & Jackson, LLC v. Willie Gary, LLC, 906 A.2d 76, 79 (Del. 2006) 

(quoting First Options Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995).

26 GTSI Corp., 10 A.3d at 1119.

27 906 a.2D 76 (Del. 2006).

28 Julian v. Julian, 2009 WL 2937121, at *5 (Del. Ch. 2009).
8

Here, the first prong is met because the Agreement generally refers all 

disputes to arbitration. The Agreement states that “any dispute, disagreement, 

controversy, demand, or claim, including but not limited to legal claims, arising 

between them regarding any service or health care provided...shall be submitted to 

binding arbitration and exclusively resolved by arbitration.” Delaware courts have 

found similar language to satisfy the first prong of the Willie Gary test.29

The second prong, however, is not met. The Agreement does not reference 

any rules empowering an arbitrator to decide arbitrability. The Agreement, 

therefore, does not meet the Willie Gary test, and this Court may determine 

substantive arbitrability.30

29 See Legenda Natural Gas II Hldgs., LP v. Hargis, 2012 WL 4481303, at *5 

(Del. Ch. Sept. 28, 2012) (“Here, the language ‘any dispute, controversy or claim 

arising out of or relating to this [Employment] Agreement’ generally refers all 

disputes to arbitration.”); Orix LF, LP v. Inscap Asset Mgmt., LLC, 2010 WL 

1463404, at *7 (Del. Ch. Apr. 13, 2010) (“Delaware courts have found the use of 

both ‘arising out of’ and ‘relating to’ language in an arbitration provision to be a 

broad mandate.”).

30 Though Delaware courts have expanded the Willie Gary test to include a third 

prong, it is inapplicable here. The third prong requires the Court to determine 

whether a non-frivolous argument in favor of substantive arbitrability exists. If the 

first two prongs are satisfied and there is a non-frivolous argument for substantive 

arbitrability, the Court must defer to the arbitrator. If, however, there are no nonfrivolous arguments, even if the first two prongs are satisfied, the Court may 

determine substantive arbitrability. Riley v. Brocade Commc’ns Sys., Inc., 2014 WL 

1813285, at *1 (Del. Ch. May 6, 2014). The Court here finds that the Agreement 

does not satisfy the one of the initial prongs of the Willie Gary test. Thus, the Court 

will not address the third prong.
9

B. There is a Valid and Enforceable Arbitration Agreement.

31

The Agreement provides that the Federal Arbitration Act (“FAA”) governs.32 

The FAA states that “[a] written provision...to settle by arbitration a controversy... 

shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law 

or in equity for the revocation of any contract.”33 Under the FAA, courts apply 

ordinary state-law principles governing contract formation when determining 

whether a valid arbitration agreement exists.34 Arbitration is a “creature of 

contract”35 and a party “cannot be forced arbitrate a claim absent a contractual or 

equitable duty to do so.”36 As the party seeking to enforce an arbitration agreement, 

Defendants have the burden of establishing a valid arbitration agreement.37

31 This Court has recently upheld an identical arbitration agreement in Skinner 

v. Peninsula Healthcare Services, LLC, 2021 WL 77824, at *3 (Del. Super. Mar. 1, 

2021). Though Skinner was a wrongful death claim, the Court specifically addressed 

the threshold matter of whether “a valid binding arbitration agreement exists.” The 

court held that the arbitration agreement, identical to the one here, was enforceable.

32 Defs.’ Br. Ex. B.

33 9 U.S.C. § 2.

34 Skinner, 2021 WL 778324, at *3 (citing First Options Chi., 514 U.S. at 944); 

see also AffiniPay, LLC v. West, 2021 WL 4262225, at *5 (Del. Ch. Sept. 17, 2021).

35 Aquila of Del., Inc., 2011 WL 1487060, at *1.

36 Behm v. Am. Intl. Group, Inc., 2013 WL 3981663, at *5 (Del. Super. July 30, 

2013) (citing NAMA Hldgs., 922 A.2d at 430).

37 Skinner, 2021 WL 778324, at *3 (citing First Options Chi., 514 U.S. 938).
10

i. The Agreement is supported by consideration.

Under Delaware law, a valid contract requires mutual assent to definite terms 

supported by consideration.38 Courts determine mutual assent using an objective 

standard based on overt manifestations of assent.39 “Where the putative contract is 

in the form of a signed writing, that document generally offers the most powerful 

and persuasive evidence of the parties’ intent to be bound.”40 

Here, Plaintiff contends that the Agreement fails for lack of consideration. 

The Restatement (Second) of Contracts provides that the exchange of reciprocal 

promises constitutes consideration.

41

 Consistent with that principle, courts have held 

that mutual promises to arbitrate by both parties is sufficient consideration.42

In the Agreement, both parties promise to arbitrate disputes. Specifically, the 

Agreement states:

“Cadia Healthcare Renaissance (“Facility”) and Joan Donofrio 

(“Resident”) understand and agree that ANY DISPUTE, 

DISAGREEMENT, CONTROVERSY, DEMAND, OR CLAIM, 

INCLUDING, BUT NOT LIMITED TO, LEGAL CLAIMS, arising 

between them regarding any service or health care provided to Resident 

by Facility...shall be submitted to BINDING ARBITRATION and 

EXCLUSIVELY RESOLVED BY ARBITRATION, except as 

38 Eagle Force Hldgs., LLC v. Campbell, 187 A.3d 1209, 1229 (Del. 2018).

39 Id. at 1229-30.

40 Eagle Force, 187 A.3d at 1230 (citing Seiler v. Levitz Furniture Co. E. 

Region, 367 A.2d 999, 1005 (Del. 1976)).

41 Restatement (Second) of Contracts § 71.

42 Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002) (“When both 

parties have agreed to be bound by arbitration, adequate consideration exists and the 

arbitration agreement should be enforced.”).
11

otherwise set forth below. This Agreement does not apply to (a) 

collection actions instituted by the Facility, (b) Resident’s due process 

rights before state or federal regulatory or administrative agencies.”

The Agreement binds both parties to arbitration. Thus, the mutual promises

exchanged constitutes sufficient consideration. 

Plaintiff contends that, although both parties agreed to arbitrate, Defendants 

carved out an exception for themselves in the Agreement which functionally 

unshackles them from binding arbitration. Specifically, Plaintiff refers to the 

language in the Agreement that provides, “[t]his Agreement does not apply to (a) 

collection actions instituted by the Facility.” As a result of this exception, Plaintiff 

claims there is only Plaintiff’s unilateral promise to arbitrate, not a mutual one. 

The Court disagrees. Though the Agreement provides an exception for the 

Facility, the exception is a narrow one and compels the Facility to arbitration for all 

claims other than a collection action. Other courts interpreting arbitration 

agreements have held that parties who agree to arbitrate may exclude certain claims, 

such as collection actions, from the scope of the arbitration agreement.43 The 

43 See Riley v. Premier Healthcare Management, LLC, 255 A.3d 1282 (Pa. 

Super. Ct. May 28, 2021) (TABLE) (holding that the exclusion of collection actions 

from the arbitration agreement was permissible); Salley v. Option One Mortg. Corp., 

592 Pa. 323 (Pa. 2007) (“parties who agree to arbitrate some claims may exclude 

others from the scope of the arbitration agreement.”).
12

Agreement also provides an arbitration exception for the Plaintiff in the very next 

clause.44 

Mutual promises do not require equal promises to constitute consideration. 

Absent fraud or unconscionability, contract law does not inquire into consideration’s 

value nor equivalency.

45

 Plaintiff here is not arguing fraud or unconscionability. 

Consistent with Delaware’s public policy interest in contractual freedom, parties are 

free to set and agree to their own terms. Thus, the Court holds that the Agreement 

is supported by valid consideration by exchanging reciprocal promises.

ii. Plaintiff possessed capacity when she executed the Agreement.

Plaintiff also claims that she does not recall signing the admission documents. 

Plaintiff does not deny that she signed the Agreement, nor does Plaintiff contest the 

authenticity of her signature. Rather, Plaintiff claims incapacity. Plaintiff alleges

that because she was on painkillers when she signed the Agreement, she was unable 

to understand the significance of the document.

44 Defs.’ Br. Ex. A. “This Agreement does not apply to (a) collection actions 

instituted by the Facility, (b) Resident’s due process rights before state or federal 

regulatory or administrative agencies.”

45 Restatement (Second) of Contracts §79.
13

Under Delaware law, adults are presumed to possess capacity.

46

 The party 

alleging incapacity bears the burden of proving otherwise.47 To prove incapacity, 

Plaintiff must prove that she was unable to understand in a reasonable manner the 

nature and consequences of the transaction, or that she was unable to act in a 

reasonable manner in relation to the transaction and the other party had reason to 

know of this condition.48 “A party’s capacity to enter into a contract is often best 

judged by the observations and impressions of parties who witnessed the 

complaining party’s actions.”49

To prove incapacity, Plaintiff claims that she was “on strong painkillers...on 

the day in question.”50 Plaintiff did not identify the painkillers nor their effects that 

would render Plaintiff incapacitated. Defendants’ Reply Brief clarifies that Plaintiff 

was administered Tramadol HCl 50mg pain medication on December 2, 2019.51 

Defendants also assert that Plaintiff was not adjudicated incompetent prior to signing 

the Agreement, Plaintiff signed several other important documents that day, and 

Defendants’ medical observation notes on the day in question indicate that Plaintiff 

46 Bettis v. Premier Pool & Property Mgmt., LLC, 2012 WL 4662225, at *2 (Del. 

Ch. Sept. 26, 2012) (quoting McAllister v. Schettler, 521 A.2d 617, 621 (Del. Ch. 

1986).

47 Id.

48 Barrows v. Bowen, 1994 WL 198724, at *4 (Del. Ch. 1995).

49 Donelson v. Colonial Parking, Inc., 2014 WL 4102482, at *2 (Del. Super. 

July 23, 2014).

50 Pl.’s Resp. Br. 14.

51 Defs.’ Reply 7.
14

was “alert and oriented x3” throughout that day, including after she received the pain 

medication.52 Plaintiff’s counsel stated at the hearing on the Motion that he was 

unaware of any medical side effects of Tramadol that would render a patient unable 

to understand a document.53 Plaintiff, therefore, has not met her burden of proving 

incapacity. 

iii. Plaintiff possessed authority when she executed the Agreement.

Plaintiff also attempts to nullify the Agreement by arguing that Plaintiff 

lacked authority to execute contracts on her behalf. Plaintiff claims that Defendants 

had “actual knowledge” that Plaintiff “relied heavily on the assistance of her 

daughter in reviewing important documentation” and “accepted that [her daughter]

was acting as her mother’s Power of Attorney.”

54

The Court finds that Plaintiff did not have a power of attorney and was her 

own responsible party. Thus, Plaintiff possessed authority to execute the Agreement 

on her behalf. On Plaintiff’s “Advance Directives” sheet, executed on December 2, 

2019, “none” is written over the space indicating whether Plaintiff had a power of 

attorney or guardian.55 Plaintiff also executed other admission documents on her 

own behalf, including the “Receipt of Admission Documentation Acknowledgement 

52 See Defs.’ Reply Ex. C.

53 Transcript of Oral Argument at 32:7-10.

54 Pl.’s Resp. 14.

55 Defs.’ Br. Ex. G. Plaintiff’s resident sheet also indicates that Plaintiff is her 

own responsible party. Defs.’ Br. Ex. D.
15

Form,” “Authorization for Services,” “Consent for Treatment,” “Advanced 

Directives” and others.

56

 Plaintiff’s counsel confirmed at the hearing on the Motion 

that Plaintiff did not have a power of attorney.57

C. The Arbitration Agreement Covers Plaintiff’s claims.

The scope of the Agreement covers Plaintiff’s claims. The Agreement states 

that “any dispute...arising between [the Facility and Plaintiff] regarding any service 

or health care provided to Resident by Facility...shall be submitted to binding 

arbitration and exclusively resolved by arbitration.”

58

 Plaintiff’s claims are for 

injuries and alleged negligence arising from care received at the Facility. Plaintiff’s 

claims, therefore, fall within the scope of the Agreement.

D. Plaintiff’s Remaining Contentions.

Lastly, Plaintiff attempts to void the Agreement by alleging it violates federal 

regulation 42 C.F.R. § 483.70(n) and that Defendants waived their right to enforce 

arbitration by actively participating in this litigation.

i. Noncompliance with 42 C.F.R. § 483.70 does not render the 

Agreement unenforceable.

Plaintiff claims the Agreement fails to comply with federal regulation 42 

C.F.R. § 483.70 for nursing and long term-care facilities. The regulation provides 

56 Defs.’ Br. Ex. B, E, F, G, I.

57 Transcript of Oral Argument at 41:7-11 (“I don’t think that [Plaintiff] had her 

power of attorney.”).

58 Defs.’ Br. Ex. A.
16

certain requirements that nursing and long-term care facilities must comply with to 

participate in Medicare and Medicaid. Plaintiff claims that because the Agreement 

violates provisions in 42 C.F.R. § 483.70(n) governing arbitration agreements, the 

Agreement is void.

Courts interpreting this regulation have made clear that violations of 42 C.F.R. 

§ 483.70(n) do not void an otherwise valid agreement. The regulation concerns the 

eligibility of nursing facilities to receive Medicare and Medicaid funding. It does 

not excuse a party from a contractual obligation, create a private cause of action or 

standard of care, nor concern enforcement of private contractual disputes.59 Failure 

to comply with the regulation does not render an arbitration agreement 

unenforceable.60 Rather, it impacts the facility’s eligibility for federal subsidies.61

59 BLC Lexington SNF, LLC v. Craig, 2020 WL 4721240, at *9 (E.D. Ky. Aug. 

13, 2020) (“Even if the regulation was in effect at the time, it is not clear that 

excusing a private party from a contractual obligation is the appropriate remedy; the 

regulation relates ontly to eligibility for federal funding.”); Riley, 2021 WL 

2287464, at *9; Fansler v. North American Title Insurance Co., 2020 WL 5793750, 

at *3 (Del. Super. Sept. 29, 2020); Frantz v. HCR Manor Care Inc., 64 Pa. D. & 

C.4th 457, 467-68 (2003).

60 Northport Health Servs. of Arkansas, LLC v. U.S. Dept. of Health and Human 

Servs., 438 F.Supp.3d 956, 966-67 (W.D. Ark.) (“Thus, if the failure to comply with 

the procedural requirements in [42 C.F.R. § 483.70(n)] were a basis for holding an 

agreement to arbitrate invalid and unenforceable, the Rule would indeed conflict 

with the FAA.”).

61 Id.
17

The regulation is enforced through administrative remedies, such as denial of 

payment or monetary penalties, not by voiding an otherwise valid contract.62 Thus, 

if a facility entered into an arbitration agreement in violation of the regulation, the 

agreement would still be enforceable, “absent a showing of generally applicable 

contract defenses” as stated in 9 U.S.C. § 2 of the FAA.63 

The Court, therefore, does not need to address Plaintiff’s arguments regarding 

42 C.F.R. § 483.70(n) violations because, even if the Agreement violated certain 

provisions within the regulation, such violations would not nullify the Agreement. 

ii. Defendants did not waive their right to enforce the Agreement by 

“actively participating in litigation.”

“A party may waive its right to arbitration by...actively participating in 

litigation as to an arbitrable claim.”64 Given the strong public policy favoring 

arbitration, “waiver is not to be lightly inferred.”65 A finding of waiver is meant to 

prevent the “unfairness of allowing a party to litigate while keeping the arbitration 

arrow in its quiver, only to unleash it when things begin to go badly.”66 Delaware 

62 Northport Health Servs. of Arkansas, LLC v. U.S. Dept. of Health and Human 

Servs., 14 F.4th 856, 866 (8th Cir. 2021).

63 Id.

64 Parfi Hldg., 842 A.2d at 1260 n. 39.

65 James Julian, Inc. v. Raytheon Service Co., 424 A.2d 665, 668 (Del. Ch. 

1980).

66 Margolis Edelstein v. Frontier Mining, et. al., C.A. No. 14C-01-217 JAP (Del. 

Super. June 30, 2017).
18

courts have found waiver where the party asserting arbitration engaged in litigation 

for several months or years before invoking arbitration.67

Here, Defendants have made no secret of their intent to arbitrate. Defendants 

raised the arbitration agreement at the earliest opportunity – in their Answer. Even 

prior to that, Defendants notified Plaintiff via e-mail of their intent to arbitrate 

pursuant to the Agreement by making a demand for arbitration.

68

 Defendants shortly 

thereafter filed their Motion to Dismiss for lack of subject matter jurisdiction. 

Defendants maintain they have not engaged in any discovery that they would not be 

entitled to once the matter is transferred to arbitration. The Court, therefore, finds

that Defendants did not waive arbitration. 

E. The Court Stays the Case Pending the Outcome of Arbitration.

Plaintiff requests that if the Court finds the Agreement valid, the Court stay 

the case pending the outcome of arbitration. Defendants take no position on a stay. 

The FAA provides that where there is an arbitration agreement and on application 

of one of the parties, the court shall stay the action until arbitration has occurred.69 

Given this provision from the FAA and Plaintiff’s request, the Court stays the case 

pending arbitration.

67 Id. See also Ballenger v. Applied Digital Solutions, Inc., 2002 WL 749162, at 

*7 (Del. Ch. Apr. 24, 2002).

68 Defs.’ Reply Ex. D.

69 9 U.S.C. § 3.
19

VI. CONCLUSION

For the reasons stated above, the Court will stay the case pending the outcome 

of arbitration. IT IS SO ORDERED.