Thomas v. Watson Woods Healthcare Incorporated ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Alycia Thomas, No. CV-21-08087-PCT-SMB 10 Plaintiff, ORDER 11 v. 12 Watson Woods Healthcare Incorporated, et al., 13 Defendants. 14 15 Pending before the Court is Defendants’ Notice of Removal. (Doc. 1.) Defendants’ 16 assert this is one of those narrow categories of cases in which a Plaintiff’s complaint allows 17 removal under federal question jurisdiction, 28 U.S.C. §§ 1331, 1441, even while admitting 18 that federal claims are not apparent on the face of the well-pled complaint. See Hornish v. 19 King Cty., 899 F.3d 680, 688 (9th Cir. 2018) (noting generally “our jurisdictional analysis 20 is limited by the longstanding well-pleaded complaint rule, which provides that a suit arises 21 under federal law only when the plaintiff's statement of his own cause of action shows that 22 it is based upon federal law, and which does not permit a finding of jurisdiction predicated 23 on an actual or anticipated defense, or upon an actual or anticipated counterclaim.” (internal 24 citations omitted)); accord, Border Infrastructure Envtl. Litig. v. U.S. Dep't of Homeland 25 Sec., 915 F.3d 1213, 1221-22 (9th Cir. 2019). 26 However, the well-pleaded complaint rule is a rule of inclusion rather than an 27 exclusive and absolute boundary on the Court’s jurisdiction. There are certain 28 circumstances where the Court acquires federal jurisdiction even though a plaintiff’s claims 1 sound purely in state law. See, e.g., Nevada v. Bank of Am. Corp., 672 F.3d 661, 674 (9th 2 Cir. 2012) (“A state cause of action invokes federal question jurisdiction only if it 3 ‘necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal 4 forum may entertain without disturbing any congressionally approved balance of federal 5 and state judicial responsibilities.’ This type of federal question jurisdiction applies to a 6 "special and small category" of cases.” (internal citations omitted)); Retail Prop. Trust v. 7 United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 948-49 (9th Cir. 2014) (noting 8 the doctrine of “complete preemption” can support for removal jurisdiction but cautioning 9 that “its occurrence is ‘rare[,]’” and that though the doctrines may overlap even “field 10 preemption [is] not coextensive [with complete preemption.]”). 11 Defendants assert that this case presents one such circumstance, and that removal 12 jurisdiction is allowed here. However, the Court notes Defendants largely and almost 13 exclusively cite to an advisory opinion from the Department of Health and Human 14 Services, (“AO-21”), in making this argument. (Doc. 1 at 9.) Though of course the Court 15 can consider an advisory opinion as persuasive authority, opinions like this one are not 16 accorded Chevron Deference. Christensen v. Harris County, 529 U.S. 576, 587 (2000) 17 (“Interpretations such as those in opinion letters -- like interpretations contained in policy 18 statements, agency manuals, and enforcement guidelines, all of which lack the force of law 19 -- do not warrant Chevron-style deference.”); accord, United States v. Mead Corp., 533 20 U.S. 218, 228 (2001) (noting that while informal agency interpretations may have the 21 power to persuade, they are not granted Chevron deference). Further, the Court notes that 22 materials cited by the Defendant reach a conclusion contrary to that of the vast majority of 23 federal courts that examined the same issue. See, e.g., Winn v. Cal. Post Acute LLC, No. 24 CV 21-02854 PA (MARx), 2021 U.S. Dist. LEXIS 67760, at *7-15 (C.D. Cal. Apr. 6, 25 2021) (finding the PREP Act did not allow for removal jurisdiction under theories of 26 complete preemption, federal question, or federal officer removal); Stone v. Long Beach 27 Healthcare Ctr., LLC, No. CV 21-326-JFW(PVCx), 2021 U.S. Dist. LEXIS 58410, at *18 28 (C.D. Cal. Mar. 26, 2021) (finding the PREP Act’s immunity provisions did not support 1 removal); Estate of Judith Joy Jones v. St. Jude Operating Co., No. 3:20-cv-01088-SB, 2 2021 U.S. Dist. LEXIS 43876, at *22 (D. Or. Feb. 16, 2021) (finding AO-21 unpersuasive 3 and the PREP Act did not create removal jurisdiction); Lyons v. Cucumber Holdings, LLC, 4 No. CV 20-10571-JFW(JPRx), 2021 U.S. Dist. LEXIS 20838, at (C.D. Cal. Feb. 3, 2021); 5 Parker v. St. Jude Operating Co., LLC, No. 3:20-cv-01325-HZ, 2020 U.S. Dist. LEXIS 6 249253, at *15 (D. Or. Dec. 27, 2020) (“[I]n addition to providing immunity, the PREP 7 Act only supplies a limited cause of action for willful misconduct. This narrow path is not 8 a substitute for Plaintiff's state law negligence claims and does not warrant a finding that 9 the limited exception of complete preemption applies to the PREP Act.”); accord Estate of 10 Winfred Cowan v. Lp Columbia Ky, No. 1:20-CV-00118-GNS, 2021 U.S. Dist. LEXIS 11 61708 (W.D. Ky. Mar. 30, 2021); Wright v. Encompass Health Rehab. Hosp. of Columbia, 12 Inc., Civil Action No. 3:20-02636-MGL, 2021 U.S. Dist. LEXIS 59610 (D.S.C. Mar. 29, 13 2021); Dupervil v. All. Health Operations, LLC, No. 20-CV-4042 (PKC) (PK), 2021 U.S. 14 Dist. LEXIS 20257 (E.D.N.Y. Feb. 2, 2021); Shapnik v. Hebrew Home for the Aged at 15 Riverdale, No. 20-cv-6774 (LJL), 2021 U.S. Dist. LEXIS 79447 (S.D.N.Y. Apr. 26, 2021); 16 but see Garcia v. Welltower OpCo Grp. LLC, No. SACV 20-02250JVS(KESx), 2021 U.S. 17 Dist. LEXIS 25738, at *26 (C.D. Cal. Feb. 10, 2021) (denying a motion to remand and 18 holding “the PREP Act provides for complete preemption.”) Defendants do not address or 19 distinguish any of these cases in their notice of removal. 20 In light of the above, the Court does not believe that Defendants’ recited authority 21 meets their burden to show that the Court has subject matter jurisdiction over this case. A 22 more comprehensive and wholistic briefing on the issue of subject matter jurisdiction, one 23 which addresses the contrary caselaw, is required before the Court will allow the case to 24 move forward. 25 Accordingly, 26 IT IS ORDERED that Defendants show cause in writing within seven (7) days of 27 the date of this order why this case should not be remanded in light of the numerous cases 28 rejecting their jurisdictional basis. Defendants’ briefing shall not exceed five (5) pages. 1 IT IS FURTHER ORDERED that Plaintiff may file a brief response to 2|| Defendants’ memorandum no later than three (3) days after the Defendant’s filing. || Plaintiffs response shall not exceed four (4) pages. 4 IT IS FURTHER ORDERED that if Defendants fail to show cause in writing || within seven (7) days of the date of this Order, this case will be remanded without further 6 || notice. 7 Dated this 10th day of May, 2021. 8 9 —_—_> 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-