Moore v. Covenant Living West ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 No. 1:21-cv-01303-JLT-SKO 11 JOHN MOORE, 12 Plaintiff, ORDER CONTINUING STAY 13 v. 14 COVENANT LIVING WEST, 15 Defendant. 16 No. 1:21-cv-01393-JLT-SKO 17 JOHN MOORE, 18 Plaintiff, ORDER CONTINUING STAY 19 v. 20 COVENANT LIVING WEST, 21 Defendant. 22 No. 1:21-cv-01416-JLT-SAB 23 DALLENE ROCCARO, et al., 24 Plaintiffs, ORDER CONTINUING STAY 25 v. 26 COVENANT LIVING COMMUNITIES & SERVICES, 27 Defendant. 28 1 The above-captioned matters are state-law actions concerning nursing homes’ responses 2 to the coronavirus pandemic. They were initially filed in California state courts and were 3 subsequently removed to this U.S. District Court based on federal-question jurisdiction. The 4 notice of removal in each case asserts, among other things, that the state law causes of action are 5 preempted by the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d and 6 247d-6e (2006) (the “PREP Act”). Plaintiffs in each action have filed a motion to remand. 7 On October 21, 2021, the Ninth Circuit heard oral argument in Saldana v. Glenhaven 8 Healthcare LLC, No. 20-56194. According to the opening brief, the issues presented to the Ninth 9 Circuit for review in Saldana were as follows: 1. Did the district court err in its interpretation and application of 10 the federal officer removal statute, 28 U.S.C. § 1442(a)(1), by failing to recognize that Defendants’ response to the pandemic was 11 at the specific direction of, and to assist, the federal government, such that Defendants were “acting under” a federal officer as 12 contemplated by § 1442(a)(1) and Watson v. Philip Morris Cos., 551 U.S. 142 (2007)? 13 2. Did the district court err in its interpretation of the PREP Act’s 14 complete preemptive effect by failing to construe the various components of the PREP Act together? 15 3. Did the district court err in failing to recognize that Plaintiffs’ state claims raise embedded federal issues pursuant to Grable & 16 Sons Metal Products v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005) that compel granting federal jurisdiction because of 17 the need for uniformity in the interpretation and enforcement of federal law in responding to the COVID-19 pandemic, which has 18 affected every state in the country? 19 Saldana, Doc. No. 16, at 17–18. The parties in the above-captioned matters have briefed similar 20 issues. (See Moore, No. 1:21-cv-01303-JLT-SKO, Doc. 15; Moore, No. 1:21-cv-01393-JLT- 21 SKO, Doc. 11; Roccaro, 1:21-cv-01416-JLT-SAB, Doc. 1.) 22 On December 15, 2021, the Court stayed these matters pending resolution of Saldana, and 23 ordered the parties, within fourteen days following the entry of the mandate by the Ninth Circuit 24 in Saldana, to file either a stipulation regarding the lifting of the stay and setting forth appropriate 25 deadlines or a joint status report indicating their respective positions on further proceedings. 26 The mandate issued in Saldana on April 26, 2022, but the parties failed to abide by the 27 above filing deadline. Accordingly, the Court entered a minute order in each case ordering the 28 parties to show cause why the case should not be remanded in light of Saldana. In the above- 1 | captioned cases, Defendants responded indicating their preference to continue the stay while they 2 | pursued further appeals. A subsequent set of filings indicates that the parties in Saldana are in the 3 | process of briefing a petition for a writ of certiorari with the United States Supreme Court. It is 4 | anticipated that the petition will be ready for resolution some time in December 2022. 5 Accordingly, the Court finds it appropriate to stay this matter until the Supreme Court 6 | either denies the petition or rules on the merits of the case. Thus, the Court ORDERS: 7 1. Within 14 days of the Supreme Court’s action denying the petition or ruling on its 8 | merits, the parties are directed to file a stipulation regarding lifting the stay, remanding the case or 9 | setting forth appropriate deadlines, or a joint status report indicating their respective positions on 10 | further proceedings. Failure to comply will result in the imposition of sanctions including 11 | monetary sanctions, dismissal for failure to prosecute or striking the answer and entering 12 | default. 13 4 IT IS SO ORDERED. 5 Dated: _ October 4, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28