Opinion
Civ. No. 99-D-1287-N.
January 30, 2001.
MEMORANDUM OPINION AND ORDER
Before the court are three Motions To Compel Arbitration, which were filed by Plaintiffs University of South Alabama Foundation and Prime Health, Inc. ("Plaintiffs" or "Prime Health"). Plaintiffs seek to compel arbitration with three third-party Intervenors: The University of South Alabama Hospitals ("USAH"), The University of South Alabama Health Services Foundation ("HSF"), and Franklin Primary Health Center ("Franklin"). Each of the Intervenors has filed Responses to Plaintiffs' motions. The court also invited the parties to file additional materials on this issue. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Plaintiffs' motions are due to be granted with respect to HSF and Franklin and denied with respect to USAH.
I FACTUAL BACKGROUND
The intervention of numerous health care providers in this case, which originally was purely a lawsuit by Plaintiffs against the Alabama Medicaid Agency ("Medicaid"), presents the court with the interpretation of various contracts containing arbitration provisions. Plaintiffs constitute a health management organization ("HMO") that operates under a federal experimental waiver and administers a health care plan in Mobile County, Ala., titled the BAY Health Plan. (Compl. ¶¶ 1-6, Rubin Aff.) Intervenors, through subcontracts with Plaintiffs' HMO, are various health care facilities that provide services to qualified individuals under the BAY Health Plan. (P1. Spec. Submiss. at 5.)
In their Complaint, Plaintiffs essentially seek damages against Medicaid and an equitable enforcement of their contracts with Medicaid and others. (Compl. ¶¶ 18-28.) Specifically, Plaintiffs' civil action, which was filed after Franklin terminated its relationship with Plaintiffs, seeks a declaratory judgment finding that Franklin's termination is legally ineffective because it failed to comply with the terms of its arbitration agreement. (Id. ¶¶ 9, 18-19.) Plaintiffs also contend that Medicaid contributed to Franklin's wrongful termination by acquiescing to it. Thus, they have brought several breach of contract claims against Medicaid. (Id. ¶¶ 13-16, 20-28.)
Enter the intervenors, who claim that, in one way or another, Plaintiffs' suit against Medicaid will affect their interests. See FED. R. Civ. P. 24(a), (b). Some Intervenors contend that they are third-party beneficiaries of the Prime Health-Medicaid contract, while others have not raised this claim, but seek an accounting of funds and monies due under their respective HMO subcontracts. The gravamen of each complaint in intervention is that if Medicaid failed to reimburse Plaintiffs' HMO, then Plaintiffs owe them a share of that money, too. After each prayer for intervention, Plaintiffs promptly filed motions to compel arbitration.
It has been somewhat difficult to parse together some of the intervenors' claims — particularly those of USAH — for they have either ignored or disregarded this District's local rules for the filing of complaints. See M.D. ALA. L.R. 15.1 ("Any amendment to a pleading . . . must . . . reproduce the entire pleading as amended, and may not incorporate any prior pleading by reference.")
Somewhat complicating the court's resolution of the motions to compel is the fact that Franklin, after intervening in this case, filed a separate suit in the Mobile Circuit Court. Franklin brought various additional state law claims against Plaintiffs and other individuals who are not parties to this suit. The Supreme Court of Alabama held that Franklin was improperly attempting to split its claims in violation of state law. Thus, the court issued a writ of mandamus that barred Franklin's state court suit pending resolution of the issues presently pending in this court. See generally Ex parte University of S. Ala. Found'n, 2000 WL 1842385 (Ala. 2000). The court now turns to those issues.
II. THE FEDERAL ARBITRATION ACT ("FAA")
The FAA establishes "`a federal policy favoring arbitration,'"Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)), and mandates that courts "rigorously enforce agreements to arbitrate," even if doing so means piecemeal litigation. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985). Congress enacted the FAA to overcome state courts' "ancient hostility" to arbitration and refusal to enforce arbitration agreements. Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 270 (1995). "Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability." Moses Cone, 460 U.S. at 24-25.
Section 2 of the FAA declares that written agreements to arbitrate are enforceable when contained in a contract involving interstate commerce. FAA, 9 U.S.C. § 2. "A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction . . . in a civil action . . . for an order directing that such arbitration proceed in the manner provided for in such agreement." Id. § 4. If a court determines that arbitration is appropriate, then the court shall stay all proceedings with respect to those matters until alternate dispute resolution has been completed in accordance with the terms of the contract. Id. § 3.
III. DISCUSSION
The court addresses Plaintiffs' motions to compel with the following intervenors in turn: (1) HSF; (2) Franklin; and (3) USAH. In each case, the court determines whether the intervenor's complaint falls within the scope of an arbitration agreement by comparing the language of the agreement with the claims asserted. See Industrial Risk Insurers v. M.A.N. Gutehoffnungshutte, GmbH, 141 F.3d 1434, 1449 n. 21 (11th Cir. 1998); Nobles v. Rural Community Ins. Servs., 122 F. Supp.2d 1290, 1296 (M.D. Ala. 2000).
A. HSF
The court first turns to Plaintiffs' Motion To Compel Arbitration With University of Alabama Health Services Foundation ("HSF"). In its Complaint In Intervention, HSF alleges that Plaintiffs breached two separate contracts: (1) Prime Health's contract with Medicaid; and (2) Prime Health's subcontract with HSF. (Compl. ¶¶ 4-5.) At the outset, the court notes that the only issue before the court is Plaintiffs' motion to compel with respect to the subcontract. While federal courts must tirelessly exercise their Article III powers see Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 821 (1976), they must be hesitant to decide matters, particularly ones of state law, that are only questionably ripe for adjudication. See Nobles, 122 F. Supp.2d at 1297 n. 3, 1298 n. 6. Prime Health has not filed any motion for dismissal or summary judgment on HSF's claim that it is a third-party beneficiary of the Prime Health-Medicaid primary contract.See FED. R. Civ. P. 12(b)(6), 56. In the absence of such a motion, the court accepts the allegations in the complaint as true. See Williams v. ALDOT, 119 F. Supp.2d 1249, 1255 (M.D. Ala. 2000).
HSF contends that it is a third-party beneficiary of this contract. (HSF Compl. ¶ 4.)
HSF argues the Prime Health-HSF subcontract does not substantially affect interstate commerce. The court disagrees with HSF, and finds that the dispute regarding the Prime Health-HSF subcontract is subject to arbitration. Accordingly, Plaintiffs' motion is due to be granted.
Interpretation of a contract is a matter of law. As the moving party, Prime Health has the burden of proving both: (1) the existence of a written arbitration contract; and (2) that the contract affects interstate commerce, as intended by Congress in enacting the FAA. The burden then shifts to HSF to show that the agreement either: (1) is not valid; or (2) does not apply to the dispute in question. See Bear Stearns Sec. v. Jones, 2000 WL 1868436 at *2 (Ala. 2000); Transouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999).
In this case, the relevant portion of the Prime Health-HSF subcontract clearly states, in standard font, that disputes between the parties shall be resolved through informal mediation or arbitration. Specifically, the contract provides:
Any dispute or question arising between PrimeHealth and the Group shall be settled, if possible, by amicable and informal mediation. However, if such issue(s) cannot be resolved in this manner, said issue(s) shall
be submitted to arbitration under the appropriate rules of the American Arbitration Association. (HSF Spec. Submiss. Ex. B art. X.B.) The court finds that the requirement that disputes "shall be submitted to arbitration" creates a mandatory, binding arbitration requirement. See Nobles, 122 F. Supp.2d at 1296 (collecting cases).
The issue, then, is whether the subcontract has the necessary affect on interstate commerce, as contemplated by Congress, to fall within the FAA's scope. See FAA, 9 U.S.C. § 2. HSF's arguments on this point border on the frivolous.
Section 2 expresses Congress' intent to extend the Act's reach to contracts touching the outer limits of the Commerce Clause. See Allied-Bruce, 513 U.S. at 273-76 (1995) (interpreting FAA and U.S. CONST. art I § 8). "`Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.'" United States v. Morrison, 120 S.Ct. 1740, 1750 (2000) (quoting United States v. Lopez, 514 U.S. 549, 559 (1995)). Even a cursory examination of Commerce Clause jurisprudence leads to the inescapable conclusion that "`commerce' means the voluntary sale or exchange of property or services and all accompanying market-oriented activities, enterprises, relationships, and interests." Grant S. Nelson Robert A. Pushaw, Jr., Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations But Preserve State Control over Social Issues, 85 IOWA L. REV. 1, 107 (1999).
Thus, as a matter of law, if any individual contract involves more than a nominal sum, then that contract by its own right has a substantial affect on interstate commerce. See Allied-Bruce, 513 U.S. at 282 (O'Connor, J., concurring) (federal law preempts state statute prohibiting arbitration of consumer contracts involving less than $5000). HSF claims that Prime Health's breach of the subcontract has proximately led to more than $1.14 million in damages. (HSF Compl. ¶ 5.) Although HSF never informed the court of the overall value of the repeated services it has performed, the court finds that any contract leading to a claim for contractual damages involving anything remotely approaching this sum of money has a substantial affect on interstate commerce. See Allied-Bruce, 513 U.S. at 282 (O'Connor, J., concurring).
Moreover, if the aggregation of the impact of performing a certain discrete activity has a substantial affect on interstate commerce, then an individual's performance of the activity may be regulated by Congress, even if the individual's acts are local in nature. See Morrison, 120 S.Ct. at 1750 n. 4; Hodel v. Virginia Surface Mining Reclamanation Ass'n. Inc., 452 U.S. 264 (1981); Perez v. United States, 402 U.S. 146 (1971); Katzenbach v. McCluncr, 379 U.S. 295 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Dascenzo, 152 F.3d 1300, 1303 (11th Cir. 1998).
Accordingly, under the "aggregation principle" expressed in Wickard and approved by the Supreme Court in Morrison and the Eleventh Circuit inDascenzo, the court finds that the cumulative affect of health care contracts like the one between Prime Health and HSF fall squarely within the type of activity that may be the subject of arbitration. See FAA, 9 U.S.C. § 2. The BAY Health Plan was authorized pursuant to a federal waiver granted by the Secretary of Health and Human Services as part of an experimental program to develop new technology, treatment options, and distribution networks that would contain the spiraling national costs of health care. (Rubin Aff.) The federal legislation that empowered HHS to issue these waivers is the product of Congress's exercise of its Commerce Clause powers. See 42 U.S.C. § 902, 1314 (a). Plainly, if Congress could authorize these primary health care contracts under the Commerce Clause, then the subcontracts to perform the various services that are essential to the primary contracts also fall within the scope of the Commerce Clause for FAA purposes. The whole is equal to the sum of its parts. For this reason, as well, the court finds that HSF's subcontract to perform health services as part of a federally-sanctioned managed health care program has a substantial affect on interstate commerce. See Morrison, 120 S.Ct. at 1749-50; Wickard, 317 U.S. at 124-25; Dascenzo, 152 F.3d at 1303; Robinson v. Macrovern, 521 F. Supp. 842, 876 (W.D. Pa. 1981).
The subcontract is part of a comprehensive program initiated by the federal government, and the activities of the health care providers are intimately entangled with the flow of goods across state lines. The federal government provides matching funds — to HMO's that receive an HHS waiver. These matching funds are sent through interstate commerce. The health care policies and formulas for providing payment for medical services are developed on a national basis. HSF and the other intervenors are required to enroll in the federal Vaccines for Children Program. They maintain voluminous records under applicable federal laws, send forms to Prime Health that have traveled through postal mail or e-mail, keep malpractice insurance that meets the requirements of the Federal Tort Claims Act, and utilize a select formulary program concerning prescription drugs developed and manufactured outside Alabama. In addition, Intervenors' clinics — all of which are federally-funded community health centers — use medical equipment that has been manufactured outside Alabama and employ physicians that have been trained outside Alabama. (Rubin Aff.)
Lopez did not signal a retreat to preview Deal jurisprudence. While the court is sensitive to the principles that underlie our system of dual sovereignty, the court is by no means prepared to turn federalism on its head and blur the distinction between what is truly national and truly local. Wherever the line should be drawn, more than sixty years of precedent teaches that this subcontract substantially affects interstate commerce. For all these reasons, the court finds that the HSF-Prime Health subcontract shall be arbitrated. See FAA, 9 U.S.C. § 2;Morrison, 120 S.Ct. at 1749-50; Wickard, 317 U.S. at 124-25; Dascenzo, 152 F.3d at 1303; see also Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 743 (1976); Tarleton v. Meharry Med. College, 717 F.2d 1523, 1529-32 (6th Cir. 1983). Cf. Ex parte Stewart, 2000 WL 1763371 at *1-3 (Ala. 2000) (per curiam) (Houston, J., concurring specially).
The court declines HSF's invitation to read Sisters of the Visitation v. Cochran Plastering Co., 2000 WL 264243 at *5 (Ala. 2000) (recognizing the vitality of Wickard), and its progeny in a manner that conflicts with binding precedent. Surely HSF is aware of the State Judges Clause and the Supremacy Clause. See U.S. CONST. art. VI.
Having determined that the Prime Health-HSF subcontract contains a clear, unambiguous arbitration clause, the court also finds that the parties are first obligated to attempt to resolve their differences through "amicable and informal mediation.," (HSF Spec. Submiss. Ex. B Art. X.B.) At this juncture, the court has insufficient information either to determine the precise nature of HSF's obligations or whether HSF has satisfied them. In any event, given the court's finding that the subcontract contains a valid, enforceable arbitration clause, any of HSF's claims for relief are due to be stayed. See FAA, 9 U.S.C. § 3.
B. Franklin
The court now turns to Prime Health's motion to compel arbitration with Franklin. Franklin objects to the motion for three main reasons. First, it apparently argues that the subcontract's choice-of-law provision signals an intent to avoid the FAA's mandates. Second, it contends that the subcontract does not substantially affect interstate commerce. Third, it asserts that Prime Health has waived its right to arbitrate by invoking the litigation process. The court disagrees with all three arguments, and finds that Prime Health's motion is due to be granted.
The first two claims require little attention and can be addressed in tandem. Initially, the court rejects Franklin's position that the contract's reference to Alabama law means that the court "is bound to follow Alabama law rather than [f]ederal law in deciding whether or not to compel arbitration." (Doc. No. 98 at 2.) The contract provides:
This Agreement is made and executed in the State of Alabama and shall be subject to and governed by the laws of the State of Alabama; and all questions concerning its validity, construction, and administration shall be determined under such laws.
(Prime Health-Franklin Subcontract, art. 11.6.)
The court finds that this reference merely directs the arbitrator to apply Alabama law to any dispute between the parties. It is insufficient evidence of an intent to avoid the FAA's full force and effect, and it has no bearing on the court's duty to look to the "body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act," Moses Cone, 460 U.S. at 24, for purposes of enforcement. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 59-64 (1995); Spurlock v. Life Ins. Co. of Va., 2000 WL 1785300 at *7 (M.D. Ala. 2000); Porter Hayden Co. v. Century Indemnity Co., 136 F.3d 380, 382-84 (4th Cir. 1998); Coleman Coleman Sec., Inc. v. Giaquinto Family Trust, 1683450 at *3 (S.D.N.Y. 2000). Moreover, for reasons previously explained in detail, the court finds that the Prime Health-Franklin subcontract, like the Prime Health-HSF subcontract, substantially affects interstate commerce. (Rubin Aff.) See Allied-Bruce, 513 U.S. at 282 (O'Connor, J., concurring); see also Morrison, 120 S.Ct. at 1749-50; Wickard, 317 U.S. at 124-25; Dascenzo, 152 F.3d at 1303.
Finally, the court disagrees with Franklin's claim that Prime Health has waived its right to arbitration. The party asserting waiver must demonstrate that the other party: (1) had knowledge of an existing right to compel arbitration; (2) acted inconsistently with that existing right; and (3) substantially prejudiced the moving party. See Wilson v. Par Builders II, Inc., 879 F. Supp. 1187, 1189 (M.D. Fla. 1995) (citingAdams v. Merrill Lynch, Pierce, Fenner Smith, 817 F.2d 250, 252 (4th Cir. 1989)). The court must consider the totality of the circumstances, giving weight to such evidence as the length of delay in demanding arbitration, the expense incurred by the moving party as a result of appearing before a judicial tribunal, the relative hardships, and the motives of the parties. See S H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507, 1514 (11th Cir. 1990) (totality of circumstances test); Tenneco Resins v. Davy Int'l, 770 F.2d 416, 421 (5th Cir. 1985) (party's minimal participation in discovery, if materials may also be useful for arbitration, is insufficient to constitute waiver). Waiver should never be lightly inferred. See Wilson, 879 F. Supp. at 1189. Cf.Green Tree Fin. Corp. v. Randolph, 121 S.Ct. 513, 521-22 (2000), aff'g 991 F. Supp. 1410 (M.D. Ala. 1997) (party seeking to defeat arbitration clause must offer clear, credible proof of prejudice).
In this case, the court finds that Franklin has failed to meet its burden of showing waiver by Prime Health. Franklin argues that Prime Health waived its rights when it referred to Franklin in its initial complaint, supposedly failed to object to Franklin's motion to intervene, and filed a counterclaim against Franklin. (Doc. No. 98 at 7.) The court disagrees.
Prime Health's lawsuit was against Medicaid. Franklin is in the suit because it intervened. The court finds that Prime Health has steadfastly maintained its initial position that Franklin breached its subcontract by not fulfilling its contractual obligation to arbitrate before terminating its subcontract, that Medicaid breached its contract with Prime Health by acquiescing to Franklin's actions, and that the court should exercise its authority to compel arbitration. (Compl. ¶¶ 6, 19; Doc. No. 15 at 1.) Moreover, Prime Health took great pains in its counterclaim to notify Franklin that it was not acting "in derogation of its Motion To Compel Arbitration," but was filing "only to preserve its claims against Franklin pending the Court's (possible adversel ruling" on the motion to compel. (Doc. No. 17 ¶ 8.) Indeed, throughout the fourteen-month history of this case, Prime Health has consistently sought to arbitrate every issue that believes to be arbitrable. (Doc. Nos. 12, 71-75, 91.) When Franklin petitioned to intervene, then abruptly sought to withdraw after being ordered by the court to show cause why its petition should be granted, Prime Health again asked the court for an expedited ruling on the arbitration motion, so as to avoid the potential risk of inconsistent judgments caused by Franklin's efforts to maintain a separate suit in Alabama state court. (Doc. No. 13.) Prime Health opposed Franklin's motion to intervene, then moved to strike Franklin's supplemental pleadings. (Doc. Nos. 28, 79.) Prime Health also moved to stay discovery on Franklin's claims. Doc. No. 71.)
The case was removed to federal court by the named defendants.
Prime Health also moved to stay the expert witness disclosures required by this case's Uniform Scheduling Order. (Doc. No. 143).
Overall, Prime Health's conduct provides a model for all future litigants on how to avoid waiving their rights to arbitration. In the face of repeated temptation by no less than four intervenors seeking to invoke the court's jurisdiction, Prime Health has remained true. The court finds that Prime Health has in no way waived its rights.
This is not to say that future litigants must take similar steps. Each case should be judged on its facts. Here, the record reflects that Prime Health went well beyond what would be reasonably expected of a party seeking to preserve its rights to arbitrate.
Moreover, the court finds that Franklin has made no credible showing of prejudice. This it not the type of case where the party seeking arbitration is pursuing a "second bite at the apple" by negating a prior adverse judicial ruling. See, e.g., Graig Shipping Co. v. Midland Overseas Shipping Corp., 259 F. Supp. 929, 931 (S.D.N.Y. 1966). Nor can any delay in the court's ruling on the motion to compel be attributed to Prime Health. See, e.g., S H Contractors, 906 F.2d at 1514. Because all of the cases cited by Franklin are inapposite, Franklin is left with the jejune claim that it was prejudiced when Prime Health "substantially invoked the litigation process" because Prime Health "has undertook substantial legal action in both [federal and state] court." (Doc. No. 98 at 7.) This argument is illogically circular, clearly erroneous, and by all accounts legally insufficient. The court finds that Franklin has not shown that it has been prejudiced by this litigation. See Green Tree, 121 S.Ct. at 521-22. Accordingly, Prime Health's motion to compel arbitration on its subcontract is due to be granted, and any of Franklin's claims are due to be stayed. See FAA, 9 U.S.C. § 3.
Prime Health's actions in state court have been limited to preventing Franklin from violating state law by prosecuting simultaneous claims against Prime Health in federal and state court. See Ex parte University of S. Ala. Found'n, 2000 WL 1842385 (Ala. 2000). Given that Prime Health has always been asking this court for a declaratory judgment compelling arbitration with Franklin, Prime Health was entirely justified in seeking to dismiss or stay the state court claims. See ALA. CODE § 6-5-440 (1975).
C. USAH
Finally, the court turns to Prime Health's motion to compel arbitration with USAH and finds that the motion is due to be denied. USAH, like HSF, contends that Prime Health has breached its Medicaid contract with Medicaid and its USAH subcontract. Thus, USAH claims to have suffered some $1.54 million in damages. (Compl. ¶ 5.) Because the Prime Health-USAH subcontract has no written arbitration clause, USAH is entitled to litigate its claims.
At the end of the day, "[a]rbitration is a matter of consent, not coercion, and parties are generally free to structure their agreements as they see fit." Robertson v. Money Tree of Ala., Inc., 954 F. Supp. 1519, 1527-28 (M.D. Ala. 1997) (quoting Volt Info. Sciences, Inc. v. Board of Trustees of Stanford Univ., 489 U.S. 468, 479 (1989)). While any and all ambiguities in the contract must be resolved in favor of arbitration, the court cannot twist the language beyond its plain meaning. See Blue Gray Corp. v. Merrill Lynch, Pierce, Fenner Smith, Inc., 921 F.2d 267, 271 (11th Cir. 1991).
In this situation, Prime Health seeks to compel arbitration based upon the following contractual provision:
Any dispute or question arising between PrimeHealth and the Hospital shall be settled, if possible, by amicable and informal mediation. However, if such issue(s) cannot be resolved in this manner, said issue(s) shall be heard before the State Board of Adjustment.
(Prime Health-USAH Subcontract, art. X ¶ B.) The court finds that this provision's reference to amicable mediation and resolution before an Alabama administrative law court, without more, is insufficient evidence of an intent to arbitrate. See Blue Gray, 921 F.2d at 271.
Moreover, the court finds that the parties' attempt to confer jurisdiction over the Alabama State Board of Adjustment violates public policy and is unenforceable. The Board is an administrative tribunal, whose authority is limited by the scope of positive law. The Board cannot hear any matter over which state or federal courts would have jurisdiction. See Medical Laundry Serv. v. Board of Adjustment, 486 So.2d 1305, 1306 (Ala. 1986); Hawkins v. State Bd. of Adjustment, 7 So.2d 775, 776-77 (Ala. 1942). It can solely hear claims "against the State that would be otherwise precluded by governmental immunity."Houston County Bd. of Educ. v. State Bd. of Adjustment, 562 So.2d 513, 514 (Ala. 1990) (interpreting ALA. CODE § 41-9-60 (1975)). Because there is no dispute that Prime Health is a private entity, not a state agency, the Board cannot hear USAH's claim against Prime Health. Thus, Prime Health's attempt to compel USAH to appear before the Board violates public policy and is due to be denied. See id.
Prime Health also asks the court to order informal mediation between the two parties. The issue of whether USAH has satisfied its contractual obligations on this point has not been properly briefed or argued. Thus, the court presently declines to rule on this issue, although it notes that the Middle District of Alabama has established a program for voluntary mediation with a federal magistrate judge at the parties' request. But see infra Part IV.
IV. ORDER
Based on the foregoing, it is CONSIDERED and ORDERED that Plaintiffs' motions to compel arbitration over the disputes on its subcontracts with The University of South Alabama Health Services Foundation and with Franklin Primary Health Center be ancf the same are hereby GRANTED. To avoid the risk of inconsistent judgments, any arbitration proceedings between Plaintiffs and HSF or Franklin be and the same are hereby STAYED pending complete resolution of this civil action.
It is further ORDERED that Plaintiffs' motion to compel arbitration with the University of South Alabama Hospitals be and the same is hereby DENIED.