After Plaintiff filed suit, Defendant filed a motion to dismiss, compel arbitration and stay discovery. The magistrate entered a report and recommendation that the motion be denied. Before the magistrate the plaintiff raised enough evidence to question the nursing home resident’s capacity to enter into an arbitration agreement. The plaintiff also argued that because a wrongful death claim does not belong to the deceased, she could not bind a non-signatory. The district court accepted the conclusions of the magistrate, but substituted its own reasoning in denying the motion to arbitrate. First, because there was enough evidence to create a colorable issue, the plaintiff’s were entitled to discovery on the issue of the resident’s capacity and the arbitrator could not determine the validity of the contract since his own authority is derived from it. Second, in Georgia, a wrongful death is separate from the resident’s own claims and, since no privity existed between the nursing home and the wrongful death claimants, they could not be compelled to arbitrate. Magistrate’s opinion is at Washburn v. Beverly Enterprises-Georgia, Inc., 2006 U.S. Dist. LEXIS 73267 (S.D. Ga. 2006).