Riggs v. Country Manor La Mesa Healthcare Center ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DALE RIGGS et al., Case No.: 21-CV-331-CAB-DEB 12 Plaintiffs, ORDER GRANTING MOTION TO 13 v. REMAND 14 COUNTRY MANOR LA MESA HEALTHCARE CENTER, [Doc. No. 10] 15 Defendant. 16 17 18 19 This matter is before the Court on Plaintiff’s motion to remand. The Court deems 20 the motion suitable for submission without oral argument, so the parties’ requests for a 21 hearing are denied.1 For the following reasons, the motion to remand is granted. 22 I. Background 23 On December 18, 2020, Plaintiffs Dale Riggs and David Riggs filed a complaint in 24 San Diego County Superior Court for claims arising out of the death of Donna Riggs 25 (“Decedent”), who resided at a facility run by Defendant Country Manor La Mesa 26 27 1 Defendant’s unopposed request for judicial notice [Doc. No. 12] is granted. Defendant’s ex parte 28 1 Healthcare Center. The factual allegations in the complaint, which is on a form pleading 2 paper, consist almost entirely of the following: 3 Decedent was under Defendant’s care and treatment from May 2020 through July 14, 2020. In or around July 8, 2020, Decedent’s roommate at 4 Defendant’s facility tested positive for COVID-19. Decedent’s roommate 5 was transported from Defendant’s facility to Sharp Grossmont Hospital because she was suffering from severe cough and fever. Sharp Grossmont 6 Hospital diagnosed Decedent’s roommate with COVID-19. Once Decedent’s 7 roommate was released by Sharp Grossmont, she returned to Defendant’s facility. Defendant placed Decedent’s roommate back into the same room as 8 Decedent even though Defendant knew Decedent’s roommate had COVID- 9 19. On July 14, 2020, Decedent was transported to Sharp Grossmont Hospital and diagnosed with COVID-19. Decedent died on August 5, 2020 from 10 COVID-19. Plaintiff Dale Riggs also contracted COVID-19 from Decedent’s 11 roommate at Defendant’s facility. 12 [Doc. No. 1-7 at 5.] Based on these allegations, the complaint asserts claims of medical 13 malpractice-wrongful death and elder abuse resulting in Decedent’s death because 14 Defendant did not isolate Decedent’s roommate from Decedent when the roommate 15 returned from the hospital after being diagnosed with COVID-19. The complaint also 16 asserts a claim for negligence resulting in Plaintiff Dale Riggs contracting COVID-19. 17 On February 24, 2021, Defendant removed the complaint to federal court. Plaintiff 18 now moves to remand based on lack of subject matter jurisdiction. 19 II. Legal Standards 20 “Federal courts are courts of limited jurisdiction. They possess only that power 21 authorized by Constitution and statute. . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 22 511 U.S. 375, 377 (1994) (citations omitted). Thus, it is “presume[d] that federal courts 23 lack jurisdiction unless the contrary appears affirmatively from the record.” Hansen v. 24 Grp. Health Coop., 902 F.3d 1051, 1056 (9th Cir. 2018) (quoting DaimlerChrysler Corp. 25 v. Cuno, 547 U.S. 332, 342 n.3 (2006)). “The right of removal is entirely a creature of 26 statute and a suit commenced in a state court must remain there until cause is shown for its 27 transfer under some act of Congress.” Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 1 28, 32 (2002) (internal quotation marks and citation omitted). “The ‘strong presumption’ 2 against removal jurisdiction means that the defendant always has the burden of establishing 3 that removal is proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citation 4 omitted). Courts must “strictly construe the removal statute against removal jurisdiction,” 5 and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal 6 in the first instance.” Id. “Where doubt regarding the right to removal exists, a case should 7 be remanded to state court.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 8 1090 (9th Cir. 2003). 9 III. Discussion 10 Between its notice of removal and its opposition to the instant motion, Defendant 11 makes three arguments for why its removal was proper. First, it contends that the Public 12 Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-6d (2006) (the “PREP 13 Act”), completely preempts Plaintiffs’ claims. Second, it contends that Plaintiffs’ claims 14 “present a substantial, embedded question of federal law,” giving rise to federal question 15 jurisdiction under the standards set forth in Grable & Sons Metal Products, Inc. v. Darue 16 Engineering and Manufacturing, 545 U.S. 308 (2005). Finally, Defendant contends that 17 federal officer removal jurisdiction exists under 28 U.S.C. § 1442(a)(1) because Plaintiffs’ 18 claims are based on Defendant’s conduct “acting under” the direction of federal authorities 19 with respect to its care of Decedent. Like the overwhelming majority of district courts 20 considering the propriety of the removal of substantively indistinguishable cases, the Court 21 is not persuaded by any of these arguments for the existence of subject matter jurisdiction 22 here. 23 A. Complete Preemption 24 Defendant argues that the Court has subject matter jurisdiction because Plaintiffs’ 25 claims, all of which are made under state law, are completely preempted by the PREP Act. 26 “Complete preemption refers to the situation in which federal law not only preempts a 27 state-law cause of action, but also substitutes an exclusive federal cause of action in its 28 place.” Hansen, 902 F.3d at 1057. “[C]omplete preemption is rare.” Id. (internal quotation 1 marks omitted). Indeed, the Supreme Court has identified only three statutes that 2 completely preempt state law claims: (1) § 301 of the Labor Management Relations Act 3 (the LMRA), 29 U.S.C. § 185; (2) § 502(a) of the Employee Retirement Income Security 4 Act of 1974 (ERISA), 29 U.S.C. § 1132(a); and (3) §§ 85 and 86 of the National Bank Act, 5 12 U.S.C. §§ 85, 86. City of Oakland v. BP PLC, 969 F.3d 895, 905–06 (9th Cir. 2020). 6 Thus, “complete preemption for purposes of federal jurisdiction under § 1331 exists when 7 Congress: (1) intended to displace a state-law cause of action, and (2) provided a substitute 8 cause of action.” Id. at 906 (citing Hansen, 902 F.3d at 1057). 9 Although this exact issue does not appear to have been considered by an appellate 10 court, district courts in the Ninth Circuit and around the country have consistently held that 11 the PREP Act does not satisfy these requirements for complete preemption. See, e.g., 12 Robin Roebuck v. Mayo Clinic, No. CV-21-00510-PHX-DLR, 2021 WL 1851414, at *5 13 (D. Ariz. May 10, 2021) (“[T]he Court joins the growing consensus finding that the PREP 14 Act is not a complete preemption statute. The PREP Act does not satisfy the Ninth Circuit’s 15 complete preemption test because it does not completely replace state law claims related 16 to COVID-19 and does not provide a substitute cause of action for [Plaintiff’s] medical 17 negligence claim.”); Golbad v. GHC of Canoga Park, No. 221CV01967ODWPDX, 2021 18 WL 1753624, at *2 (C.D. Cal. May 4, 2021) (“[S]imply put, the PREP Act does not satisfy 19 the Ninth Circuit’s two-part complete preemption test.”); Padilla v. Brookfield Healthcare 20 Ctr., No. CV 21-2062-DMG (ASX), 2021 WL 1549689, at *4 (C.D. Cal. Apr. 19, 2021) 21 (“Nearly every other federal court addressing the issue of complete preemption has found 22 that the PREP Act is not a statute with complete preemptive effect.”); see also Bolton v. 23 Gallatin Ctr. for Rehab. & Healing, LLC, No. 3:20-CV-00683, 2021 WL 1561306, at *7 24 (M.D. Tenn. Apr. 21, 2021) (“[N]early every district court to consider whether the PREP 25 Act completely preempts similar state-law claims against nursing homes has concluded the 26 PREP Act is not a complete preemption statute, or at least does not have such an effect on 27 28 1 claims like those presented here.”) (internal quotation marks and citation omitted). The 2 Court finds the reasoning of these cases, and of the cases on which these cases rely, 3 persuasive and adopts it here. Plaintiffs’ claims are not completely preempted by the PREP 4 Act. 5 B. Federal Question Jurisdiction Under Grable 6 Next, Defendant argues that the complaint contains embedded questions of federal 7 law, creating subject matter jurisdiction under Grable. Under Grable, “federal jurisdiction 8 over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually 9 disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting 10 the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 11 (2013). “Only a few cases have fallen into this slim category, including: (1) a series of 12 quiet-title actions from the early 1900s that involved disputes as to the interpretation and 13 application of federal law. . .; (2) a shareholder action seeking to enjoin a Missouri 14 corporation from investing in federal bonds on the ground that the federal act pursuant to 15 which the bonds were issued was unconstitutional; and (3) a state-quiet title action claiming 16 that property had been unlawfully seized by the Internal Revenue Service (IRS) because 17 the notice of the seizure did not comply with the Internal Revenue Code. . . .” City of 18 Oakland, 969 F.3d at 904 (internal citations omitted). 19 District courts have consistently rejected healthcare providers’ or assisted living 20 facilities’ arguments that claims arising out of patients or residents getting COVID-19 raise 21 22 23 2 But see Garcia v. Welltower OPCo Grp. LLC, No. SACV 20-02250 JVS, 2021 WL 492581, at *7 (C.D. Cal. Feb. 10, 2021 (holding, based on advisory opinions from the Department of Health and Human 24 Services, that the PREP Act provides for complete preemption). Garcia, however, is in the minority, and 25 “all of the federal district court decisions reported on Westlaw that cite to and consider Garcia have declined to follow its lead.” Estate of Ruby P. Parr v. Palm Garden of Winter Haven, LLC, No. 8:21-CV- 26 764-SCB-SPF, 2021 WL 1851688, at *2 (M.D. Fla. May 10, 2021) (joining “with all of the district courts that have addressed the issue and concluded that the PREP Act does not provide complete preemption, 27 and thus, it does not provide a basis for federal question jurisdiction”); see also Golbad, 2021 WL 1753624, at *3 (noting that “[t]he court in Garcia deferred to the HHS Secretary’s opinion of PREP Act 28 1 embedded federal issues with respect to the PREP Act. Indeed, the state law claims in 2 Plaintiffs’ complaint do not raise any federal issues; only Defendant’s potential defenses 3 under the PREP Act do. This is not enough to implicate Grable. “No federal issue is 4 ‘necessarily raised’ by Plaintiffs’ complaint because an interpretation of the PREP Act is 5 not an essential element of any of Plaintiffs’ state law claims.” Hopman v. Sunrise Villa 6 Culver City, No. 221CV01054RGKJEM, 2021 WL 1529964, at *6 (C.D. Cal. Apr. 16, 7 2021); see also Padilla, 2021 WL 1549689 (finding no subject matter jurisdiction under 8 Grable based on PREP Act defense). “[A] case may not be removed to federal court on 9 the basis of a federal defense, including the defense of pre-emption, even if the defense is 10 anticipated in the plaintiff's complaint, and even if both parties concede that the federal 11 defense is the only question truly at issue.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393 12 (1987). Accordingly, there is no subject matter jurisdiction based on an embedded federal 13 question.3 14 C. Federal Officer Jurisdiction 15 Finally, Defendant argues that removal was proper under 28 U.S.C. § 1442(a)(1) 16 because it was “acting under” the direction of a federal officer. “To invoke § 1442(a)(1) 17 removal, a defendant in a state court action ‘must demonstrate that (a) it is a “person” 18 within the meaning of the statute; (b) there is a causal nexus between its actions, taken 19 pursuant to a federal officer’s directions, and plaintiff's claims; and (c) it can assert a 20 “colorable federal defense.”’” Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 21 2018) (citing Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006)). 22 Defendant contends that federal officer removal is justified here because it was deemed 23 “critical infrastructure” and was acting pursuant to guidelines established by the Centers 24 for Disease Control and other governmental entities. 25 26 27 3 Because Plaintiffs’ claims do not raise a substantial federal issue, the Court need not consider the 28 1 Like Defendant’s other arguments for the propriety of its removal, this argument has 2 been consistently rejected by courts considering claims against assisted living facilities 3 based on their actions during the COVID-19 pandemic. “[T]he help or assistance necessary 4 to bring a private person within the scope of the statute does not include simply complying 5 with the law.” Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 152 (2007) 6 (emphasis in original). Thus, “a highly regulated firm cannot find a statutory basis for 7 removal in the fact of federal regulation alone.” Id. at 153. As a result, “a company subject 8 to a regulatory order (even a highly complex order) is [not] acting under a federal officer.” 9 Fidelitad, 904 F.3d at 1100 (citing Watson, 551 U.S. at 152-53. 10 Defendant argues that it was deemed “critical infrastructure” and was required to 11 comply with guidelines and requirements the federal government instituted to combat the 12 COVID-19 pandemic. As multiple other district courts have held, this is not enough to 13 invoke federal officer removal. See, e.g., Nava v. Parkwest Rehab. Ctr. LLC, No. 14 220CV07571ODWAFMX, 2021 WL 1253577, at *2 (C.D. Cal. Apr. 5, 2021) (holding that 15 “general regulations and directives” and being “subject to a high degree of federal 16 regulation” is not enough for federal officer removal); Saldana v. Glenhaven Healthcare 17 LLC, No. CV205631FMOMAAX, 2020 WL 6713995, at *3 (C.D. Cal. Oct. 14, 2020) 18 (rejecting the defendants’ argument that “in taking steps to prevent the spread of COVID- 19 19, [they] did so in compliance with CDC and CMS directives, which were aimed at 20 helping achieve the federal government’s efforts at stopping or limiting the spread of 21 COVID-19” as insufficient for federal officer removal because “[t]he directions 22 Defendants point to are general regulations and public directives regarding the provision 23 of medical services.”). Accordingly, removal was not proper under 42 U.S.C. § 1442(a)(1) 24 either. 25 IV. Conclusion 26 For the foregoing reasons, it is hereby ORDERED that Plaintiff’s motion to remand 27 is GRANTED. If Defendant notices an appeal of this order by June 8, 2021, this case will 28 be STAYED pending resolution of Defendant’s appeal. If Defendant does not notice an 1 || appeal by June 8, 2021, the Court will remand the case to San Diego Superior Court. The 2 pending motions to compel arbitration and to dismiss [Doc. Nos. 7, 8] are DENIED AS 3 ||MOOT without prejudice to refiling in this Court if Defendant succeeds on its appeal and 4 ||the Ninth Circuit finds that removal was proper, or to refiling in state court if Defendant 5 || does not appeal or if the Ninth Circuit affirms this order. 6 It is SO ORDERED. 7 ||Dated: May 25, 2021 € Z 8 Hon. Cathy Ann Bencivengo ? United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 °