Estate of Alfredo J. Barrera v. Walgreen Co. ( 2024 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO.: 23-cv-24281-GAYLES/LOUIS ESTATE OF ALFREDO J. BARRERA, Plaintiff, v. WALGREEN CO. and MELINDA D. DAVIS, RPH, Defendants. _______________________________/ ORDER THIS CAUSE comes before the Court on Plaintiff’s Motion to Remand Pursuant to 28 U.S.C. § 1447(c) (the “Motion”) [ECF No. 13]. The action was referred to Magistrate Judge Lauren F. Louis, pursuant to 28 U.S.C. § 636(b)(1)(B), for a ruling on all pretrial, non-dispositive matters, and for a Report and Recommendation on any dispositive matters. [ECF No. 18]. On May 31, 2024, Judge Louis issued her report recommending that the Motion be granted (the “Report”). [ECF No. 34]. Defendants Walgreen Co. and Melinda D. Davis (“Defendants”) have timely objected to the Report. [ECF No. 35]. A district court may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objection is made are accorded de novo review, if those objections “pinpoint the specific findings that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). Defendants removed this action from the Eleventh Judicial Circuit in and for Miami-Dade County, Florida alleging that the Court has subject matter jurisdiction pursuant to the Public Readiness and Emergency Preparedness Act (the “PREP Act”), 42 U.S.C. § 247d-6d, et seq. [ECF No. 4]. In her Report, Judge Louis recommends that the Court remand this action because (1) even if the PREP Act completely preempts state law,1 Plaintiff’s state-law wrongful death claim does not fall within the scope of the PREP Act and (2) the Court does not have jurisdiction under the substantial federal question doctrine. [ECF No. 35]. The Court has conducted a de novo review of the Motion and the record, including the arguments raised in Defendants’ Objections, and agrees with Judge Louis’s findings and recommendation. CONCLUSION Accordingly, it is ORDERED AND ADJUDGED as follows: (1) Judge Louis’s Report and Recommendation, [ECF No. 34], is ADOPTED in full; (2) Plaintiff Estate of Barrera’s Motion to Remand Pursuant to 28 U.S.C. § 1447(c), [ECF No. 13], is GRANTED; 1 The Eleventh Circuit and the Supreme Court have not ruled on whether the PREP Act completely preempts state- law claims. However, “nearly every other federal court to address the argument” has rejected the theory. Turner v. Bristol at Tampa Rehab. and Nursing Center, LLC, No. 8:21-cv-0719, 2021 WL 4261430 at *1 (M.D. Fla. Sep. 20, 2021); see also Schleider v. GVDB Operations LLC, No. 21-CV-80664, 2021 WL 2143910 at *3 (S.D. Fla May 24, 2021). (3) This action is REMANDED to the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. DONE AND ORDERED in Chambers at Miami, Florida, this 20th day of June, 2024. Df DARRIN P. GAYLES UNITED STATES DI ICT JUDGE