523 F.Supp.3d 1271
D. Kan.2021Background
- Decedent Georgia Clardy was a resident at Riverbend Post-Acute Rehabilitation and died of COVID-19 after exposure at the facility.
- Plaintiff Garnice Robertson (surviving child) sued the facility owners/operators for wrongful death and negligence for failing to follow infection-control measures (e.g., permitting symptomatic staff to work, no PPE, allowing resident congregation, inadequate staffing/training).
- Defendants removed the case to federal court, arguing the PREP Act completely preempts state-law claims arising from the administration or use of covered countermeasures, creating federal-question jurisdiction.
- Plaintiff moved to remand, contending the petition asserts only state-law negligence and wrongful-death claims not within the PREP Act.
- The court considered prior, similar remand rulings and authority about the PREP Act’s scope, and concluded the alleged harms were not causally tied to the administration, use, prioritization, or allocation of covered countermeasures.
- Holding: PREP Act did not apply; neither complete-preemption nor Grable embedded-federal-question doctrines supported removal. The case was remanded to state court for lack of subject-matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PREP Act completely preempts the state-law claims (making them federal) | Robertson: claims are ordinary state-law negligence/wrongful death, not based on administration/use of covered countermeasures | Defendants: PREP Act immunity/comprehensive scheme substitutes a federal cause of action (complete preemption) | Court: PREP Act inapplicable because no causal link to administration/use of countermeasures; complete preemption not available here; remand granted |
| Whether alleged omissions/inactions (failure to administer/use PPE/testing/etc.) fall within PREP Act (including Fourth Amendment prioritization language) | Robertson: allegations concern failure to prevent spread, not rationing/administration of countermeasures | Defendants: Fourth Amendment and agency guidance allow non-administration/prioritization to fall within PREP Act | Court: Even accepting that theory, the complaint lacks facts alleging limited countermeasures or rationing decisions causing the death; PREP Act still inapplicable |
| Whether the case presents an embedded federal question under Grable (substantial federal issue) | Robertson: claim does not necessarily raise or require resolution of PREP Act issues; federal defense insufficient | Defendants: PREP Act raises substantial federal interests that make the federal issue necessary and disputed | Court: Grable not met—the PREP Act is not a necessary element of the state claim; federal defense alone cannot supply jurisdiction |
| Whether jurisdictional discovery or hearing is needed | Robertson: not necessary | Defendants: request jurisdictional discovery/hearing to develop facts on PREP Act applicability | Court: Denied—briefing and record are sufficient and additional proceedings would not materially aid decision |
Key Cases Cited
- Robinson v. Shell Oil Co., 519 U.S. 337 (statutory interpretation and plain-meaning analysis)
- Grable & Sons Metal Prods. v. Darue Eng’g & Mfg., 545 U.S. 308 (embedded federal-question framework)
- Gunn v. Minton, 568 U.S. 251 (Grable four-factor test and narrow scope)
- Beneficial Nat. Bank v. Anderson, 539 U.S. 1 (complete-preemption inquiry focuses on whether Congress intended an exclusive federal cause of action)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (well-pleaded complaint rule; defendants cannot manufacture federal jurisdiction via anticipated defenses)
- Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195 (complete preemption is rare; limited application)
- Dutcher v. Matheson, 733 F.3d 980 (burden on removing party; presumption against federal jurisdiction)
- Schmeling v. NORDAM, 97 F.3d 1336 (discussion of complete preemption doctrine)