520 F.Supp.3d 1277
C.D. Cal.2021Background
- Plaintiff Fernande Lyons (individually and successor to the estate of Rodolphe Lyons) sued Cucumber Holdings, LLC (d/b/a Stoney Point Healthcare Center) and California Opco, LLC in Los Angeles Superior Court alleging negligence, willful misconduct, violations of the Elder and Dependent Adult Civil Protection Act, and wrongful death after the decedent contracted COVID-19 and died in the nursing facility.
- Plaintiff alleges long-term neglect at the facility (falls, infections, pressure ulcers), inadequate staffing, and failures in infection control that led to the decedent contracting COVID-19 and dying on April 16, 2020.
- Defendants removed the case to federal court claiming (1) federal-officer removal under 28 U.S.C. § 1442(a)(1) because they followed federal CDC/CMS directives, and (2) federal-question jurisdiction via complete preemption/embedded federal issue under the PREP Act (42 U.S.C. §§ 247d-6d, 247d-6e).
- The PREP Act (and HHS COVID-19 declarations, including the Dec. 3, 2020 amendment) can provide immunity for claims ‘‘caused by, arising out of, relating to, or resulting from’’ covered countermeasures; the Dec. 3 amendment clarifies when ‘‘inaction’’ claims can fall within PREP immunity (limited-countermeasure, allocation contexts).
- Plaintiff moved to remand; Defendants opposed. The district court found removal improper and remanded for lack of subject-matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Federal-officer removal under 28 U.S.C. § 1442(a)(1) | Lyons: Defendants were not "acting under" a federal officer; no causal nexus to federal direction. | Defendants: Compliance with CDC/CMS directives shows they acted under federal direction to limit COVID-19 spread. | Denied — compliance with general CDC/CMS guidance is not acting "under" a federal officer; causal nexus not shown. |
| Complete preemption by the PREP Act | Lyons: Claims allege failure to implement infection-control (inaction), not use/misuse of covered countermeasures; PREP Act does not completely displace state law here. | Defendants: PREP Act (and Dec. 3 amendment) covers failures to use PPE/testing and thus preempts state claims. | Denied — PREP Act does not demonstrate complete preemption; it grants immunity/defense but does not replace state causes of action. |
| Applicability of PREP Act to "inaction" claims | Lyons: Death not causally connected to administration/use of any covered countermeasure. | Defendants: Dec. 3 amendment shows inaction can be covered where administration to others caused non-administration. | Held: Inaction claims fall only where there is a close causal relationship (limited countermeasure allocation); that nexus is absent here. |
| Embedded federal-question ( Grable ) jurisdiction | Lyons: State claims do not necessarily raise a substantial federal issue. | Defendants: PREP Act raises a substantial, disputed federal issue embedded in state claims. | Denied — federal issue would be a defense, not necessarily raised; issue not shown substantial to federal system. |
Key Cases Cited
- Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095 (9th Cir. 2018) (elements for federal-officer removal)
- Gaus v. Miles, Inc., 980 F.2d 564 (9th Cir. 1992) (removal statute strictly construed; burden on remover)
- Watson v. Philip Morris Cos., 551 U.S. 142 (2007) (private compliance with federal regulation does not automatically show acting "under" a federal officer)
- Grable & Sons Metal Prods. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005) (test for embedded federal question jurisdiction)
- Gunn v. Minton, 568 U.S. 251 (2013) (substantiality prong requires importance to federal system)
- Hansen v. Group Health Coop., 902 F.3d 1051 (9th Cir. 2018) (complete preemption doctrine is narrow)
- City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020) (complete preemption requires displacement plus substitute cause of action)
- Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003) (complete preemption permits removal only when federal law replaces state claim)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (federal defenses do not create federal-question jurisdiction)
- Merrell Dow Pharm. v. Thompson, 478 U.S. 804 (1986) (federal issue in complaint must be substantial to create federal jurisdiction)