Case: 15-10603    Date Filed: 07/31/2015   Page: 1 of 5


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 15-10603
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 1:14-cv-00069-JRH-BKE

BEVERLY ENTERPRISES INC.,
GOLDEN GATE NATIONAL SENIOR CARE, LLC,
GGNSC HOLDINGS, LLC,
GGNSC CLINICAL SERVICES, LLC,
GGNSC ADMINISTRATIVE SERVICES, LLC,
GGNSC AUGUSTA WINDERMERE, LLC,
d.b.a. Golden LivingCenter- Windermere,

                                                              Plaintiffs-Appellees,

                                     versus

JUDY CYR,
as Administrator of the Estate of Frankie Campbell,
JUDY CYR,
in her Representative Capacity on Behalf of the Children of Frankie Campbell,

                                                            Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                        ________________________

                                 (July 31, 2015)
               Case: 15-10603     Date Filed: 07/31/2015    Page: 2 of 5


Before ED CARNES, Chief Judge, MARCUS, and WILLIAM PRYOR, Circuit
Judges.

PER CURIAM:

      Plaintiffs (collectively “Golden Gate”) operate a nursing facility called

GoldenLiving Center - Windermere. Defendant Judy Cyr, acting as attorney-in-

fact for her mother Frankie Campbell, signed Golden Gate’s arbitration agreement

on Campbell’s behalf when Campbell was admitted into Windermere. After

Campbell died in Windermere’s care, Cyr sued Golden Gate in state court under

Georgia’s wrongful death statute on her own behalf and on behalf of Campbell’s

other children. See Ga. Code §§ 51-4-2 & 51-4-3 (2010). Golden Gate then filed

this action in the federal district court seeking enforcement of the arbitration

agreement and moving to compel arbitration. The district court ordered that all of

Cyr’s claims be arbitrated. This is her appeal of that order, which we review de

novo. See In re Checking Account Overdraft Litig., 

, 1293 (11th

Cir. 2014).

      The arbitration agreement Golden Gate drafted contains a provision stating

that disputes “shall be resolved exclusively by binding arbitration . . . in

accordance with the National Arbitration Forum [NAF] Code of Procedure, which

is hereby incorporated into this agreement.” That code provides that “[i]n the

event of a cancellation of this Code, any Party may seek legal and other remedies

regarding any matter upon which an Award or Order has not been entered.” R. 48,


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NAF Code of Procedure (2006). In 2009, after a suit by the Minnesota Attorney

General, the NAF agreed it would no longer “[i]n any manner participate in” any

consumer arbitration (including the type of arbitration at issue here) filed on or

after July 24, 2009 — effectively canceling the code of procedure. See Sunbridge

Retirement Care Assocs., LLC. v. Smith, 

, 160 (Ga. Ct. App. 2014).

The parties to this case, by incorporating the code into their arbitration agreement,

agreed that they could pursue “legal and other remedies” if the code was cancelled.

That is what Cyr is doing.

      In arguing for arbitration, Golden Gate relies on our decision in Brown v.

ITT Consumer Financial Corp., 

(11th Cir. 2000), but that reliance is

misplaced. We held in Brown that when the forum chosen for arbitration is

unavailable, the Federal Arbitration Act provides for substitution of another

arbitrator unless choice of forum “is an integral part of the agreement to arbitrate,

rather than an ancillary logistical concern.” 

(quotation marks omitted);

see 9 U.S.C. § 5. First, Brown is factually distinguishable. Although it also

involved the NAF, which was unavailable as a forum for reasons only hinted at in

the opinion, the Brown decision predated the consent decree in which the NAF

agreed not to participate in consumer arbitration of the type at issue here and which

Georgia courts have recognized cancels the NAF code. See 

.



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      Second, the NAF code is “integral” to the agreement in this case because the

agreement explicitly incorporates the NAF code, making the code an essential part

of the agreement. The Georgia Court of Appeals has already held as much,

interpreting this very agreement against this very plaintiff. Miller v. GGNSC

Atlanta, LLC, 

, 685–89 (Ga. Ct. App. 2013). We are not persuaded

by Golden Gate’s attempts to disown the language it drafted.

      Golden Gate argues that we should disregard the holdings of Sunbridge and

Miller because they are “specifically related to arbitration, not just contracts in

general,” which, according to Golden Gate, means that those holdings run afoul of

the federal presumption in favor of arbitrability. We are not persuaded. The

underlying arbitration agreement is a contract, and that contract is governed by

state law. See Caley v. Gulfstream Aerospace Corp., 

, 1367–68

(11th Cir. 2005). The Georgia Court of Appeals in Miller and Sunbridge applied

general Georgia contract law principles to contracts that happened to be arbitration

agreements. See 

(“In deciding the validity of . . . an

[arbitration] agreement, therefore, we apply the usual rules of Georgia law

regarding the construction and enforcement of contracts.”); 

–60 (applying rule from Miller). The federal presumption in favor of

arbitrability does not prevent that.




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      We VACATE the district court’s order compelling arbitration and

REMAND the case for further proceedings consistent with this opinion.




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