DAVID J. HALE, District Judge.
Plaintiffs, various nursing-home entities, filed this action under § 4 of the Federal Arbitration Act to compel arbitration of claims asserted in state court by Sandra Lasley on behalf of Clarence Smith, a resident of one of Plaintiffs' facilities.
Plaintiffs argue that their challenge to the validity of Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306 (Ky. 2015), constitutes a federal question. (See D.N. 19, 21) In Whisman, the Kentucky Supreme Court held that a delegation of authority to waive the right to trial by jury should not be inferred absent "a clear and convincing manifestation of the principal's intention to do so."
According to Plaintiffs, application of Whisman in the parties' underlying state-court action would violate the Fourteenth Amendment "by denying Plaintiffs' fundamental right to enter into contracts, specifically the right to enter into enforceable arbitration contracts freely with [nursing home] residents' agents," such as Lasley. (D.N. 19, PageID # 274) They further contend that Whisman runs afoul of the Supremacy Clause and the FAA itself. (D.N. 21, PageID # 279) Plaintiffs thus maintain that the Court may exercise subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 because their "claims arise under the United States Constitution . . . and the laws of the United States." (D.N. 19, PageID # 273) Their attempt to recharacterize the relevant dispute is unpersuasive.
As Plaintiffs acknowledge, the FAA does not confer subject-matter jurisdiction; rather, there must be "`an independent jurisdictional basis' over the parties' dispute."
Here, the "underlying substantive controversy" is found in the state-court complaint, which alleges negligence and state statutory violations. (See D.N. 1-3, PageID # 28-36) Such claims do not "aris[e] under" federal law. 28 U.S.C. § 1331. Nor does the defendant's expected reliance on Whisman give rise to a federal question (see D.N. 5-1, PageID # 94); it is well established that "[f]ederal jurisdiction cannot be predicated on an actual or anticipated defense." Vaden, 556 U.S. at 60 ("It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of [federal law]." (alteration in original) (quoting Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908))). Although the plaintiffs assert violations of the Due Process and Equal Protection Clauses, alleging that Smith has "abridge[d] Plaintiffs' Constitutional right[s]" by pursuing his claims in reliance on Whisman (D.N. 1, PageID # 10, 12), the parties' true dispute is the one pending in Jefferson Circuit Court—without it, the claims asserted in this action would be purely hypothetical.
Irrespective of this Court's (and others') views as to the wisdom of Whisman, see GGNSC Louisville Hillcreek, LLC v. Watkins, No. 3:15-cv-902-DJH, 2016 U.S. Dist. LEXIS 25372, at *13 n.3 (W.D. Ky. Feb. 29, 2016), Plaintiffs' argument concerning its constitutionality does not provide the necessary "independent jurisdictional basis" in this case. Vaden, 556 U.S. at 59 (internal quotation marks and citation omitted). And nothing in the parties' briefs on the various pending motions suggests any other potential basis for jurisdiction. In the absence of diversity or a federal question, this action must be dismissed. See Fed. R. Civ. P. 12(h)(3). Accordingly, and the Court being otherwise sufficiently advised, it is hereby
9 U.S.C. § 4.