516 F.Supp.3d 1267
D. Kan.2021Background
- Decedent Gordon Grohman, Sr. lived at Brighton Gardens (an independent/living facility); an April 2020 COVID-19 outbreak occurred; he tested positive and died shortly thereafter.
- Plaintiff (son and special administrator) sued in Kansas state court for wrongful death, negligence, and lost chance of survival, alleging failures in staffing, PPE, testing, isolation, training, and timely medical attention.
- Defendants removed the case to federal court asserting the PREP Act completely preempts plaintiff’s state-law claims and filed a declaratory-judgment counterclaim asserting PREP Act immunity.
- Plaintiff moved to remand; the court considered recent district-court PREP Act decisions and the HHS December 3, 2020 Amendment (and subsequent HHS advisory guidance) about whether certain "inaction" claims fall within PREP Act protections.
- The court held the PREP Act does not completely preempt these state-law claims, remanded the case (including the counterclaim) for lack of subject-matter jurisdiction, allowed a limited sur-reply, and denied a requested jurisdictional hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PREP Act completely preempts plaintiff’s state-law claims (so federal court has §1331 jurisdiction). | Grohmann: claims are ordinary state negligence/wrongful-death claims not based on federal law. | Defendants: PREP Act creates exclusive federal remedies/immunity for countermeasure-related injuries, so it completely preempts and creates federal-question jurisdiction. | No. PREP Act does not completely preempt because plaintiff’s allegations lack that the injury was "directly caused by the administration or use" of a covered countermeasure. |
| Whether allegations of inaction (failure to use/administer countermeasures) fall within PREP Act after HHS Dec. 3, 2020 Amendment. | Grohmann: inaction claims lie outside PREP Act; amendment does not bring ordinary nonfeasance within federal remedy. | Defendants: Amendment expands PREP scope to cover some non-administration/allocation decisions and so can encompass these claims. | Amendment is narrow: it only covers non-administration tied to allocation/prioritization that enabled administration to others. The Petition alleges none of that, so PREP still does not govern here. |
| Whether defendants’ declaratory-judgment counterclaim invoking PREP Act may remain in federal court. | Grohmann: counterclaim asserts a federal issue only as a defense and thus lacks independent federal-question jurisdiction; should be remanded. | Defendants: counterclaim presents federal PREP Act immunity issue that the court may adjudicate. | The counterclaim lacks an independent §1331 basis (would arise only as a defense to state claims); it must be remanded with the case (or dismissed for lack of jurisdiction). |
| Whether to permit defendants’ sur-reply and hold a jurisdictional hearing. | Grohmann: limited sur-reply if any; hearing unnecessary. | Defendants: sought leave to file sur-reply and requested hearing. | Court granted limited leave to file a sur-reply, denied the request for a jurisdictional hearing as unnecessary. |
Key Cases Cited
- Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (reaffirming the well-pleaded complaint rule for federal-question removal).
- Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003) (complete-preemption doctrine can supply federal jurisdiction where Congress so provides).
- Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1 (1983) (when federal cause of action replaces state cause, a state complaint may "arise under" federal law).
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (federal courts are courts of limited jurisdiction).
- Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908) (well-pleaded complaint principle).
- Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (removal cannot be justified by facts not pleaded in the complaint).
- Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950) (Declaratory Judgment Act does not independently confer federal jurisdiction).
- Grable & Sons Metal Prods. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005) (narrow doctrine of embedded federal question).
- Gunn v. Minton, 568 U.S. 251 (2013) (limits and narrows the substantial federal-question category).
- Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195 (10th Cir. 2012) (framework for complete-preemption analysis and congressional-intent focus).
- Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir. 1996) (complete preemption replaces state cause with federal one).
- Dutcher v. Matheson, 733 F.3d 980 (10th Cir. 2013) (complete preemption is rare).
- State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979 (10th Cir. 1994) (discusses district court discretion under declaratory-judgment actions).
- Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996) (look to the nature of the defendant’s anticipated claims, not plaintiff’s anticipated defenses, to determine federal-question jurisdiction).
- Becker v. Ute Indian Tribe, 770 F.3d 944 (10th Cir. 2014) (discusses narrow boundaries of substantial federal-question jurisdiction).