Estate of Marian A Marks v. Country Villa Assisted Living in Pulaski Inc
1:22-cv-00403
E.D. Wis.Jun 27, 2022Background
- Four estates sued Country Villa Assisted Living (Pulaski) in Wisconsin state court after residents contracted COVID-19 at the facility and later died, alleging negligence in pandemic response.
- Plaintiffs assert failures including inadequate infection control, lack of COVID plans, insufficient PPE, inadequate screening, continued communal activities, and understaffing.
- Country Villa removed the cases to federal court, invoking federal-question jurisdiction under the PREP Act, arguing the Act preempts state-law claims and provides immunity/ a federal cause of action for willful misconduct.
- The Court considered Seventh Circuit and other circuit authorities addressing whether the PREP Act completely preempts state claims or merely provides a defense and a narrow federal willful‑misconduct cause of action.
- The Court concluded Plaintiffs pleaded negligence, not the heightened willful‑misconduct required by the PREP Act, so the PREP Act does not completely preempt Plaintiffs’ claims.
- The district court granted Plaintiffs’ motions to remand to Brown County Circuit Court and denied as moot Country Villa’s dismissal motions and other pending motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PREP Act completely preempts state-law negligence claims, creating federal-question removal jurisdiction | Claims are state-law negligence; federal court lacks subject-matter jurisdiction | PREP Act displaces state liability for covered countermeasures and creates federal causes of action, so removal is proper | Remand granted. PREP Act does not completely preempt ordinary negligence claims; removal improper |
| Whether Plaintiffs pleaded willful misconduct under the PREP Act (necessary for the Act’s federal cause of action) | Complaints allege negligence; boilerplate punitive/willful language insufficient | Plaintiffs alleged conduct was "malicious" or "willful," so PREP Act applies | Allegations do not meet statutory willful‑misconduct elements (intentional wrongful purpose; knowing without justification; extreme-risk disregard) |
| Whether PREP Act §247d‑6d(a)(1) is a complete‑preemption rule or an ordinary defense | §247d‑6d(a)(1) is a defense/preemption question for state court; does not create federal claim | §247d‑6d(a)(1) eliminates state-law liability and thus implies federal jurisdiction | Court: §247d‑6d(a)(1) functions as ordinary preemption/defense; only §247d‑6d(d)(1) creates a federal willful‑misconduct claim |
| Whether removal under 28 U.S.C. §1441/§1331 was proper | Removal improper; remand requested | Removal proper if PREP Act supplies federal question | Removing party failed to establish federal jurisdiction; remand ordered; other motions denied as moot |
Key Cases Cited
- Rivet v. Regions Bank of La., 522 U.S. 470 (1998) (standard for removal of state‑court actions)
- Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (doctrine of complete preemption: federal law can transform state claims into federal claims in limited circumstances)
- In re Repository Techs., Inc., 601 F.3d 710 (7th Cir. 2010) (when complete preemption applies, state‑law claims may be removable)
- Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393 (3d Cir. 2021) (PREP Act does not displace negligence/ recklessness claims; willful‑misconduct provision is limited)
- Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580 (5th Cir. 2022) (same)
- Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022) (same)
- Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752 (7th Cir. 2009) (burden on removing party to establish federal jurisdiction)