1 – OPINION 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PHILLIP WALLACE, M.D.; KENT

YUNDT, M.D.; ANTHONY HADDEN,

M.D., and NORTHWEST MEDICAL

SPECIALISTS, LLC, dba Northwest

Brain and Spine,

Plaintiffs, Case No. 6:15-cv-01548-MC

v. OPINION AND ORDER

AMSURG HOLDINGS, INC., a Delaware

corporation,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiffs Phillip Wallace, M.D., Kent Yundt, M.D., Anthony Hadden, M.D., and 

Northwest Medical Specialists, LLC, dba Northwest Brain and Spine (NWBS), bring this 

antitrust action against defendant AmSurg Holdings, Inc. The claims all revolve around a 

covenant not to compete in an Operating Agreement signed by Drs. Yundt and Hadden and 

AmSurg. In accordance with that agreement, Drs. Yundt and Hadden are currently engaged in an 

arbitration proceeding with AmSurg regarding the Noncompete Covenant. Plaintiffs move to 

stay the arbitration proceeding. AmSurg moves to dismiss or, in the alternative, stay this antitrust 

Case 6:15-cv-01548-MC Document 40 Filed 11/24/15 Page 1 of 14
2 – OPINION 

proceeding pending the results of the arbitration proceeding. There appears to be no dispute that 

Drs. Yundt and Hadden are bound by the arbitration agreement. I conclude NWBS and Dr. 

Wallace, who are not signatories to the Operating Agreement, are not bound by that agreement. 

Plaintiffs’ motion to stay arbitration is DENIED. AmSurg’s motion to dismiss or stay is 

GRANTED in part. The claims of Drs. Yundt and Hadden are referred to arbitration. The claims 

of NWBS and Dr. Wallace are stayed pending the outcome of arbitration between Drs. Yundt 

and Hadden and AmSurg. 

BACKGROUND

In 2004, Drs. Yundt and Hadden formed NWBS in Bend, Oregon. Drs. Yundt and 

Hadden are whole owners of NWBS. Dr. Wallace is an employee physician of NWBS. But for 

the non-compete agreement at issue, Dr. Wallace would be a 1/3 partner in NWBS. Drs. Yundt 

and Hadden are also partners in Bend Surgery Center, LLC.

In 1996, Bend Surgery Center LLP was formed as an ambulatory surgery center (ASC). 

In 2011 or 2012, Drs. Yundt and Hadden purchased interests in Bend Surgery Center LLP. In 

May 2014, the 43 physician partners of Bend Surgery Center LLP approved a sale to defendant 

AmSurg. In July 2014, AmSurg and the physician partners of Bend Surgery Center LLP, 

including Drs. Yundt and Hadden, executed the Operating Agreement of Bend Surgery Center, 

LLC (BSC). In exchange for about $22 million, AmSurg obtained a 51% ownership interest in 

BSC, while each physician owner obtained a 1% interest in BSC.

The Operating Agreement begins:

THIS OPERATING AGREEMENT (the “Agreement”) of Bend Surgery Center, 

LLC, a Tennessee limited liability company (the “LLC”) is made and entered into 

as of the 1st day of June, 2014 (the “Effective Date”), by and between AmSurg

Holdings, Inc., a Tennessee corporation (“AmSurg”), and each of the other 

persons listed on the signature page to this Agreement . . . .

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Operating Agreement, 2. Drs. Yundt and Hadden admit signing the agreement. First Am. 

Compl., ¶ 27.

The agreement contains a Noncompete Covenant:

8.2 Ownership and Investment Restrictions. No Owner or Affiliated Physician, 

nor any Affiliate of any Owner or Affiliated Physician shall:

8.2.1. have any direct or indirect ownership interest in, or manage, 

lease, develop or otherwise have any financial interest in any 

business or entity competing or planning to compete with the LLC 

(including, but not limited to, any ambulatory surgery center or any 

physician office in which surgical procedures are performed . . . 

within a twenty-five (25) mile radius of the [BSC],

. . . .

in each case described in Sections 8.2.1 and 8.2.2 until the later of (i) five (5) 

years from the date of this Agreement, or (ii)two (2) years after such Owner (or 

with respect to an Affiliated Physician, the Owner with whom such Affiliated 

Physician is affiliated) ceases to be a Member of the LLC. 

The agreement also contains an arbitration clause: 

14.11 Arbitration. All disputes arising under this Agreement shall be resolved by 

binding arbitration pursuant to the rules of the American Health Lawyers 

Association Dispute Resolution Service (“AHLA”) then pertaining. The 

arbitration proceedings shall be held in Denver, Colorado. The procedures for 

conducting discovery in connection with any such arbitration proceeding shall be 

determined by the mutual agreement of the Members party to the arbitration 

proceeding or, if such Members cannot agree, by the arbitrators. The arbitrators 

shall apply the substantive laws of the State of Tennessee and the United States.

In August 2014, Drs. Yundt and Hadden notified AmSurg of their plan to move NWBS 

to a larger office with an adjacent ASC.1 Drs. Yundt and Hadden constructed a new ASC facility 

and NWBS moved into the new facility in April 2015. 

 1 Drs. Yundt and Hadden allege they notified AmSurg through the CEO of BSC, who allegedly approved the ASC. 

First Am. Compl. ¶ 37. 

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In March 2015, BSC sent Drs. Yundt and Hadden a letter claiming the ASC facility 

would violate the Noncompete Covenant. In May 2015, BSC and AmSurg sent Drs. Yundt and 

Hadden an Arbitration Demand for Interim and Permanent Injunctive Relief and Request for 

Expedited Proceedings. First Am. Compl. ¶ 42. As alleged here by Plaintiffs:

43. As a direct result of AmSurg and BSC filing an arbitration demand, Drs. 

Yundt and Hadden have not brought Dr. Wallace on as an owner and have not 

started operating the planned surgery center. 

44. Therefore, the overly broad nature of the Noncompete Covenant, as sought to 

be enforced, interpreted, and applied by AmSurg, restricts Dr. Wallace’s ability to 

practice and to become a partner of Northwest Brain and Spine, resulting in 

reduced choice, delay in receiving timely care, and likely higher prices for Central 

Oregon patients, regardless of whether the planned surgery center is actually 

competing with BSC.

First Am. Compl. ¶¶ 43, 44.

Plaintiffs allege there are four ASCs in Bend. AmSurg allegedly is the majority owner of 

two, with plans on becoming the majority owner of a third.2 Plaintiffs allege only BSC and 

Cascade Surgicenter, LLC (the “Center”) perform neurosurgery procedures in Bend. The 

plaintiffs allege that AmSurg “is in the process of purchasing a majority share” in the latter. First 

Am. Compl. ¶ 46. An ASC in Redmond also provides neurosurgery services. Id. at ¶ 49. 

Plaintiffs allege:

50. Upon information and belief, there are five neurosurgeons in Central Oregon: 

Dr. Yundt, Dr. Hadden, Dr. Brad Ward, Dr. Raymond Tien, and Dr. Mark Belza. 

Of those five neurosurgeons, all but Dr. Belza will have signed and will be 

restricted by AmSurg’s Noncompete Covenant or a substantially similar 

noncompete covenant. Drs. Ward and Tien are partners in The Center, which, 

upon information and belief, will be majority-owned by AmSurg as described 

above.

 2 AmSurg disputes this allegation.

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51. AmSurg unlawfully maintains its monopoly power through its restrictive and 

one-sided operating agreements, including the noncompete covenants, and by its 

arbitration demand to enforce the same with the threat of liquidated damages as 

described above. AmSurg is utilizing barriers to entry to further its monopoly 

power.

First Am. Compl. ¶¶ 50, 51. 

Plaintiffs bring five claims. Claim one seeks declaratory relief voiding the Noncompete 

Covenant. This claim alleges the covenant is void as it is a covenant in restraint of trade.

Claim two seeks an injunction prohibiting AmSurg from enforcing the Noncompete 

Covenant.

Claim three is a Sherman Antitrust claim of Monopolization:

AmSurg has acquired and maintained market power willfully and by improper 

means, including use of overly broad, invalid, and unenforceable operating 

agreements including through its Noncompete Covenants in restraint of trade and 

other restrictive provisions detailed above.

First Am. Compl. ¶ 72.

Claim four is an attempted monopolization claim against AmSurg. Like the other claims, 

this claim revolves around the Noncompete Covenant. See First Am. Compl. ¶¶ 78 (AmSurg

engaged in anticompetitive conduct by purchasing ACSs with restrictive Noncompete 

Covenants); 80 (AmSurg “dangerously close to obtaining market power in the relevant market 

due to . . . invalid Noncompete Covenants. . . .”).

Claim five is an Intentional Interference with Business Relationship and Prospective 

Economic Advantage claim. This claim alleges AmSurg interfered with plaintiffs’ business 

relationships “by engaging in anticompetitive and monopolistic practices, including the use of 

the invalid Noncompete Covenants, including the one at issue here, and filing the arbitration 

demand seeking to enforce the same.” First Am. Compl. ¶ 90.

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6 – OPINION 

In their prayer for relief, plaintiffs request:

1. For a declaratory judgment that this claim may properly proceed in this Court, 

that Oregon law governs the enforceability of the Noncompete Covenant, and that 

the Noncompete Covenant is invalid and unenforceable under Oregon law;

2. For a preliminary and permanent injunction enjoining AmSurg from enforcing 

the Noncompete Covenant against Drs. Yundt and Hadden;

3. For an order staying arbitration proceedings brought by BSC and AmSurg until 

such time as this Court deems proper[.]

First Am. Compl. 23.

DISCUSSION

As noted, the parties filed cross motions to stay and dismiss. Plaintiffs seek to stay 

arbitration while they proceed here on their antitrust claims. AmSurg argues all of plaintiffs’

claims belong in arbitration. In the alternative, AmSurg argues some of the claims belong in 

arbitration and the remaining claims should be stayed in the interim.

1. Plaintiffs’ Motion to Stay Arbitration3

On May 27, 2015, BSC and AmSurg sent Drs. Yundt and Hadden an Arbitration 

Demand. First Am. Compl., ¶ 42. In that demand, AmSurg and BSC allege plaintiffs’ planned 

ASC would violate the Noncompete Covenant. First Am. Compl., ¶ 41. Those arbitration 

proceedings are ongoing, with a final hearing set for early February 2016. Neither NWBS nor 

Dr. Wallace are parties to the arbitration proceedings. The antitrust claims are not before the 

arbitrators at this time.

 3 At oral argument, one of plaintiffs’ attorneys appeared to concede the motion to stay. As plaintiffs did not 

formally withdraw the motion to stay, I address it.

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7 – OPINION 

The parties disagree on the standards for a motion to stay arbitration. AmSurg argues 

plaintiffs must meet the standards for obtaining a preliminary injunction. Plaintiffs disagree, 

stating they seek not an injunction, but “procedural relief.” Reply, 2; ECF No. 29.

Generally, a party seeking to enjoin arbitration proceedings must obtain a preliminary 

injunction. Textile Unlimited, Inc. v. A..BMH & Co., Inc., 240 F.3d 781, 786 (9th Cir. 2001). 

Regardless of the standards used, and regardless of the basis for any “procedural relief” sought, 

plaintiffs’ motion to stay is DENIED. 

The Operating Agreement deals with AmSurg, a Tennessee LLC, and 50 or so Oregon 

physicians. As it necessarily involves a contract “evidencing a transaction involving commerce,” 

it is governed by the Federal Arbitration Act (FAA). 9 U.S.C. § 2. Therefore, the court makes the 

initial arbitrability decision applying federal law. Brennan v. Opus Bank, 796 F.3d 1125, 1129 

(9th Cir. 2015). Under the FAA, I must decide two (and only two) threshold issues: (1) whether 

there is an agreement to arbitrate between the parties; and (2) whether that agreement covers this 

dispute. Id. at 1130 If so, the dispute must proceed in arbitration.

There appears to be no genuine dispute that Drs. Yundt and Hadden signed the Operating 

Agreement. AmSurg’s claim in arbitration (that Drs. Yundt and Hadden will violate the 

Noncompete Covenant by opening up the ASC) clearly “arises under” the Operating Agreement. 

Because there is an agreement to arbitrate between the parties currently involved in arbitration, 

and because that agreement certainly covers the current dispute in arbitration, plaintiffs’ motion 

to stay arbitration is DENIED. 

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8 – OPINION 

Drs. Yundt and Hadden advance no real arguments such as duress or unconscionability

related to the formation of the contract.4 Although plaintiffs make several due process related 

arguments concerning the fairness of the arbitration proceedings or the scope of discovery in 

arbitration, those arguments are premature. Drs. Yundt and Hadden should raise those arguments 

to the arbitrators, who are more familiar than I am with the discovery rules of the American 

Health Lawyers Association Dispute Resolution Service. Although those rules may be less 

permissive than the federal rules of discovery, it was those rules that AmSurg and Drs. Yundt 

and Hadden bargained for and agreed to in executing the Operating Agreement. 

2. AmSurg’s Motion to Dismiss or, in the Alternative, Stay

AmSurg argues the arbitration agreement encompasses the antitrust claims in this action. 

AmSurg argues those claims too must proceed in arbitration. Once again, I turn to the threshold 

questions of whether there is an agreement to arbitrate between the parties and, if so, whether 

that agreement covers this dispute. Brennan, 796 F.3d at 1130.

As discussed above, Drs. Yundt and Hadden signed the agreement to arbitrate with 

AmSurg. Dr. Wallace and NWBS, however, are not signatories to the Operating Agreement.

As arbitration agreements are contracts, “a party cannot be required to submit to 

arbitration any dispute to which he has not agreed to submit.” AT&T Techs. v Commc’ns 

Workers of Am., 475 U.S. 643, 648 (1986) (quoting Steelworkers v. Warrior & Gulf Navigation 

Co., 363 U.S. 574, 582-83 (1960)). AmSurg is correct that “nonsignatories of arbitration 

agreements may be bound by the agreement under ordinary contract and agency principles.” 

 4 At oral argument, plaintiffs’ counsel argued, for the first time, that perhaps there was a genuine dispute 

regarding the formation of this contract. Plaintiffs did not raise this argument anywhere in over 30 pages of their 

briefings. Plaintiffs did not submit a sworn declaration regarding this new argument. The statement of an attorney 

at oral argument is not evidence. While plaintiffs could be entitled to a jury trial regarding the formation of the 

contract, there is no evidence in the record creating any genuine factual dispute about the formation of this 

contract. 

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9 – OPINION 

Motion to Dismiss, 15. Agency and equitable estoppel are among those principles. Comer v. 

Micor, Inc., 436 F.3d 1098, 1101 (9th Cir. 2005). Other than pointing out that NWBS is a 

wholly-owned LLC of Drs. Yundt and Hadden, AmSurg does not indicate what agency or 

contract principle requires the extraordinary step of binding a nonsignatory to an arbitration 

agreement.

5

Under certain circumstances, a nonsignatory could be bound by an arbitration agreement 

if he “knowingly exploits the agreement containing the arbitration clause despite having never 

signed the agreement.” Comer, 436 F.3d at 1101 (quoting E.I. DuPoint de Nemours & Co. v. 

Rhone Poulenc Fiber & Resin Intermediates, 269 F.3d 187, 199 (3d Cir.)). But there exists no 

evidence in this record that either NWBS or Dr. Wallace knowingly exploited the Operating 

Agreement. In fact, they both ask this court to declare important aspects of that agreement 

unenforceable. NWBS and Dr. Wallace appear to have received no benefit at all from the

agreement. And while their claims perhaps could be viewed as “arising under” the agreement, 

the Ninth Circuit rejects binding a nonsignatory to an arbitration agreement merely because the 

claims arise under the agreement. Id. at 1101-02. 

Judge Mosman provided a thorough discussion of the law in a somewhat analogous case. 

See Legacy Wireless Services, Inc. v. Human Capital, L.L.C., 314 F.Supp.2d 1045 (D. Or. 2004). 

Judge Mosman noted that although there is a “wealth of case law” discussing when 

nonsignatories may be bound to an arbitration agreement, those cases almost universally involve 

situations where a nonsignatory attempts to force a signatory into arbitration. Id. at 1054. This 

 5 Alter ego is another principle under which a nonsignatory may be bound to a contract. Comer, 436 F.3d at 1101. 

As AmSurg does not advance any argument for piercing the corporate veil, I do not consider this theory.

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10 – OPINION 

case, like Legacy Wireless, involves the opposite situation: a signatory attempting to bind a 

nonsignatory to an arbitration agreement. I agree with Judge Mosman that:

adhering to technical agency principles is justified when a signatory seeks to 

invoke the agency exception against a nonsignatory agent. Basic fairness 

principles more readily favor holding a signatory to a contract to which it 

specifically agreed. . . . [A]n agency relationship generally does not, itself, justify 

departure from the principle that a nonsignatory may not be compelled to 

arbitrate.

Id. at 1055. In glossing over the agency exception, AmSurg does not indicate how or why Drs. 

Yundt and Hadden acted as agents of NWBS or Dr. Wallace as to the Operating Agreement.

Judge Mosman also discussed when estoppel theories could apply to bind a nonsignatory 

to an arbitration agreement. Id. at 1055-58. Once again, most of the cases deal with 

nonsignatories using estoppel to bind signatories to an arbitration agreement. “In contrast, when 

a signatory seeks to force a nonsignatory to arbitrate: the ‘signatory may not estop [the]

nonsignatory from avoiding arbitration regardless of how closely affiliated that nonsignatory is 

with another signing party.’” Id. at 1056 (quoting Mag Portfolio Consult, Gmbh v. Merlin 

Biomed Grp, Llc, 268 F.3d 58, 62 (2d Cir. 2001)). In other words, simply because NWBS is

wholly owned and operated by Drs. Yundt and Hadden does not mean it is estopped from 

avoiding arbitration. Additionally, solely because the claims are “inextricably intertwined” is not 

enough to bind a nonsignatory. Id. (citing Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 

347, 361 (5th Cir. 2003)). 

Instead, to bind a nonsignatory under an estoppel theory, the signatory must demonstrate 

the nonsignatory received some “direct benefit” from the agreement. Id. While Drs. Yundt and 

Hadden put the proceeds of the BSC sale to AmSurg into NWBS, that is not enough. In Legacy 

Wireless, there was evidence that the nonsignatory had a management-fee agreement with its 

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11 – OPINION 

subsidiary, a signatory. The underlying agreement there provided for “administrative fees” for 

employee-management services provided from one signatory to the other. The nonsignatory then 

received 50% of those “administrative fees” from the signatory in exchange for management 

services provided to that signatory. In addition to holding itself out as an affiliate to the signatory 

and receiving benefits flowing directly from the underlying agreement, the nonsignatory there 

actually assisted the signatory in performing the employee-management services forming the 

basis of the contract. Therefore, Judge Mosman concluded that, at least at the motion to dismiss 

stage, the nonsignatory could perhaps be estopped from avoiding that arbitration agreement.

Here, neither NWBS nor Dr. Wallace benefited directly from the Operating Agreement. 

They have not performed any services under the agreement. They received no payments under 

the agreement. They allege that far from providing benefits, the agreement actually harms them 

by violating antitrust laws. Based on this record, I conclude AmSurg has not demonstrated 

NWBS or Dr. Wallace should be estopped from avoiding arbitration. 

While Drs. Yundt and Hadden may have agreed that an “affiliate” such as Dr. Wallace 

would not compete with BSC, such an agreement does not actually prevent Dr. Wallace from 

going ahead and competing with BSC. Although that may present complications for Drs. Yundt 

or Hadden, Dr. Wallace is not bound by the agreement and can choose to act as he pleases. The 

same goes for NWBS.6 AmSurg’s argument suggesting otherwise—that although the agreement 

does not mention NWBS, it remains bound because it is an “affiliate” of Drs. Yundt and 

Hadden—falls apart when considering the logical extension of that argument. AmSurg’s 

arguments turn agency, estoppel, and corporate veil maxims upside down.

 6 Because NWBS appears to be owned, operated, and controlled entirely by Drs. Yundt and Hadden, and because 

the signatories agreed to certain restrictions on their directly controlled affiliates, AmSurg may be able to enjoin, 

indirectly or otherwise, the actions of NWBS a bit easier than those of, say, Dr. Wallace. Of course plaintiffs allege 

here that those potential restrictions violate antitrust laws.

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12 – OPINION 

The Operating Agreement binds signatories, and not some “affiliate” with a business 

relationship—however indirect—with that signatory. The signatories bargained for their rights 

and obligations under the Operating Agreement. The nonsignatories did not and, in fact, received

no benefit from that agreement. Therefore, I conclude NWBS and Dr. Wallace are not bound by 

the Operating Agreement. 

As to the signatories, I now turn to the second prong in the threshold analysis: whether 

the agreement covers plaintiffs’ claims here. Before resolving even that issue, I must first decide 

who—the court or the arbitrator— decides that question. This analysis depends on the language 

of the agreement. Oracle Am., Inc. v. Myraiad Group A.G., 724 F.3d 1069, 1072 (9th Cir. 2013). 

The FAA recognizes the “liberal federal policy favoring arbitration agreements.” Moses 

H. Cone Mem’l Hosp. v. Mercury Constr. Corp, 460 U.S. 1, 24 (1983). Therefore, any “doubts 

concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Id. That 

liberal policy, however, does not extend to deciding questions of arbitrability in the first instance. 

Oracle,724 F.3d at 1072. Instead, the question of arbitrability is “an issue for judicial 

determination unless the parties clearly and unmistakably provide otherwise.” Id. (citation 

omitted).

The Operating Agreement states “all disputes arising under this Agreement shall be 

resolved by binding arbitration pursuant to the rules of the American Health Lawyers Assocation 

Dispute Resolution Service (‘AHLA’) then pertaining.” ¶ 14.11. The AHLA rules state “the 

arbitrator, once appointed, shall have the power to determine his or her jurisdiction and any 

issues of arbitrability.” ¶ 3.1. Under the section titled “Arbitrability,” the AHLA states, “Once 

appointed, the arbitrator may issue a preliminary award that addresses whether the arbitration 

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13 – OPINION 

clause is valid, and whether it applies to the claims or counterclaims raised by the parties.” ¶ 

5.2(a). 

The AHLA language is very similar to language the Ninth Circuit held constitutes “clear 

and unmistakable evidence that the parties agreed to arbitrate arbitrability.” Oracle, 724 F.3d at 

1074. In Oracle, the arbitration clause provided for arbitration under the United Nations 

Commission on International Trade Law (“UNCITRAL”) rules. Id. at 1071. The UNCITRAL 

rules provided that “[t]he arbitral tribunal shall have the power to rule on objections that it has no 

jurisdiction, including any objections with respect to the existence or validity of the arbitration 

clause or of the separate arbitration agreement.” Id. at 1073. As the language here is similar to 

that discussed in Oracle, the language in the Operating Agreement and the AHLA constitutes 

clear and unmistakable evidence that the parties agreed that the arbitrator would resolve any 

dispute about arbitrability. 

As discussed above, the claims in this case all revolve around the Noncompete Covenant. 

At oral argument, plaintiffs argued the Noncompete Covenant is merely the “device” by which 

AmSurg violates antitrust laws by obtaining, or attempting to obtain, a monopoly. That may be 

so, but antitrust claims may proceed in arbitration. Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 628 (1985). Because there is at least a legitimate question as to 

whether the antitrust claims here arise under the Operating Agreement, and because the parties 

agreed that any questions as to arbitrability shall be resolved by the arbitrators in the first 

instance, the claims of Drs. Yundt and Hadden must proceed to arbitration. Chiron Corp. v. 

Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000); Qualcomm Inc. v. Nokia Corp., 

466 F.3d 1366, 1371 (Fed. Cir. 2006). 

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14 – OPINION 

As the nonsignatories are not required to arbitrate their antitrust claims, plaintiffs argue 

that requiring Drs. Yundt and Hadden to proceed in arbitration risks obtaining inconsistent 

results and is inefficient. The Supreme Court, however, recently confirmed that “when a 

complaint contains both arbitrable and nonarbitrable claims, the [FAA] requires courts to 

‘compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, 

even where the result would be the possibly inefficient maintenance of separate proceedings in 

different forums.’” KPMG LLP v. Cocchi, 132 S. Ct. 23, 25 (2011) (quoting Dean Witter 

Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985)).

CONCLUSION

Plaintiffs’ motion to stay arbitration, ECF No. 8, is DENIED. AmSurg’s motion to 

dismiss or, in the alternative, stay, ECF No. 16 is GRANTED in part. As the arbitrators must 

determine the arbitrability of the claims of Drs. Yundt and Hadden, their claims are stayed. FAA 

§ 3. Although the claims of Dr. Wallace and NWBS are not subject to arbitration, I exercise 

discretion to stay their claims pending arbitration of the claims of Drs. Yundt and Hadden. 

Moses, 460 U.S. at 20 n.23; Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). The parties shall 

file a joint status report within 30 days of the conclusion of arbitration proceedings.

IT IS SO ORDERED.

DATED this 24th day of November, 2015.

 /s/Michael McShane 

Michael J. McShane

United States District Judge

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