United States Court of Appeals
For the First Circuit
No. 18-1779
GGNSC ADMINISTRATIVE SERVICES, LLC; GOLDEN GATE NATIONAL SENIOR
CARE, LLC; GGNSC HOLDINGS, LLC; GGNSC CHESTNUT HILL, LLC, d/b/a
Golden Living Center - Heathwood,
Plaintiffs, Appellees,
v.
JACKALYN M. SCHRADER, as the personal representative of the
estate of Emma J. Schrader,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.
John Vail, with whom John Vail Law, PLLC, Daniel T. Landry,
David J. Hoey, and Law Offices of David J. Hoey, P.C. were on
brief, for appellant.
William Alvarado Rivera, Meryl D. Grenadier, and Kelly R.
Bagby on brief for AARP and AARP Foundation, amici curiae.
Robert E. Curtis, Jr. on brief for Massachusetts Advocates
for Nursing Home Reform, amicus curiae.
Joseph M. Desmond, with whom Justin L. Amos and Morrison
Mahoney LLP were on brief, for appellees.
May 11, 2020
LYNCH, Circuit Judge. On February 26, 2019, we certified
two questions in this case to the Massachusetts Supreme Judicial
Court ("SJC"). GGNSC Admin. Servs., LLC v. Schrader, 917 F.3d 20,
25 (1st Cir. 2019). On February 27, 2020, the SJC issued its
opinion. The SJC wrote:
We conclude that claims of statutory
beneficiaries under our wrongful death
statute, G. L. c. 229, § 2, are derivative of
the decedent's own cause of action, and that
therefore the decedent's arbitration
agreement binds those beneficiaries. We also
conclude that, in the circumstances of this
case, the arbitration agreement binds the
executor or administrator of the decedent's
estate to arbitrate the wrongful death action
on behalf of the decedent's statutory
beneficiaries.
GGNSC Admin. Servs., LLC v. Schrader, 140 N.E.3d 397, 407 (Mass.
2020). We then ordered the parties to file supplemental briefs
addressing the resolution of this appeal in light of the SJC's
opinion.
Appellees argue that the SJC's decision requires us to
affirm the district court's judgment compelling arbitration. They
argue that the SJC's decision "resolves the previously unsettled
state law questions presented to it for certification" and that
"this Court must now accept and apply the state law as determined."
Appellant disagrees. She makes several assertions, all
of which are without merit.
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Appellant first argues that the SJC's decision rests on
a "patent misreading" of the Massachusetts wrongful death statute.
She urges that this court is "not obliged to accept an
interpretation based on clear error in reading -- regardless of
the source." But a federal court is "duty-bound to accept
controlling state law" as set forth by a state's highest court,
and, in this case, "it is incumbent upon us to accept the clear
statement of Massachusetts law articulated by the SJC." Sanders
v. Phoenix Ins. Co., 843 F.3d 37, 47 (1st Cir. 2016). Appellant's
argument is wrong that this court may now reject the SJC's
interpretation of Massachusetts law.
Appellant describes her next argument as "that the state
court's incorrect interpretation of the statute violates the
Federal Arbitration Act." But, despite this passing reference to
the Federal Arbitration Act ("FAA"), appellant develops no
argument based on the FAA. Her brief does not cite the FAA or
federal cases construing the FAA. "[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
Finally, appellant asserts that beneficiaries of
wrongful death claims in cases where decedents agreed to arbitrate
will now be unfairly prejudiced in violation of the Equal
Protection Clause. Although she argues that strict scrutiny should
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apply to the SJC's classification, she cites no authority
whatsoever for this proposition. This purported equal protection
claim is also waived for lack of developed argument. See id. Even
if not waived, it is meritless.
"Under traditional equal protection analysis, a
legislative classification must be sustained, if the
classification itself is rationally related to a legitimate
governmental interest." U.S. Dep't of Agric. v. Moreno, 413 U.S.
528, 533 (1973). The SJC held that "claims of statutory
beneficiaries under our wrongful death statute . . . are
derivative of the decedent's own cause of action, and that
therefore the decedent's arbitration agreement binds those
beneficiaries." GGNSC Admin. Servs., LLC, 140 N.E.3d at 407. As
the SJC observed, "the decedent alone had the right to decide
whether the beneficiaries must arbitrate those claims." Id. at
406. This fulfills "[t]he Legislature['s] . . . inten[t that]
wrongful death rights . . . remain tied to the decedent's action."
Id. at 404. Allowing decedents to agree to arbitration of their
beneficiaries' wrongful death claims advances that government
interest, as well as Massachusetts's "strong public policy in favor
of arbitration in commercial disputes." Id. at 406. It does not
infringe beneficiaries' equal protection rights.
The judgment of the district court compelling
arbitration is affirmed. No costs are awarded.
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