522 F.Supp.3d 946
D. Kan.2021Background:
- Quaumeeka Saunders, as representative of Theressa Loggins’s heirs, sued owners/operators of Riverbend Post-Acute Rehabilitation for wrongful death and negligence after Loggins contracted and died of COVID-19.
- Petition alleges failure to follow infection-control protocols: symptomatic staff allowed to work, lack of PPE, failure to isolate, inadequate staffing/monitoring, and other lapses that led to infection and death.
- Defendants removed the action to federal court invoking federal-question jurisdiction based on the PREP Act (complete preemption / immunity); Plaintiff moved to remand.
- The court reviewed the PREP Act, the HHS Declaration and Fourth Amendment (defining covered countermeasures and addressing allocation/prioritization), and related authority about PREP Act scope.
- The court concluded Plaintiff’s claims allege failures to prevent spread—not injuries caused by the administration, use, or allocation of a covered countermeasure—and therefore the PREP Act does not apply; remand to state court was ordered.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PREP Act applies to these negligence/wrongful-death claims | Saunders: claims are state-law negligence for failure to prevent COVID spread, not tied to administration/use of covered countermeasures | Defendants: PREP Act covers administration/use and omissions, including PPE, testing, infection-control and allocation/prioritization decisions | PREP Act does not apply—no causal link between alleged harm and administration/use or allocation of a covered countermeasure |
| Whether PREP Act completely preempts state-law claims so removal is proper | Saunders: PREP Act not implicated, so no complete preemption | Defendants: PREP Act produces complete preemption (exclusive federal cause) permitting removal | Court declined to find complete preemption for these claims; remand required |
| Whether there is an embedded federal question under Grable that supports removal | Saunders: federal law is not a necessary element; PREP Act would be a defense only | Defendants: PREP Act raises substantial federal issue and uniform interpretation is needed | Grable fails—federal issue not necessarily raised or essential; defense-only issue insufficient for federal jurisdiction |
| Whether jurisdictional discovery or a hearing is required before ruling | Saunders: remand appropriate on the record | Defendants: requested jurisdictional discovery/hearing | Denied—court found briefing and record adequate and a hearing unnecessary |
Key Cases Cited
- Robinson v. Shell Oil Co., 519 U.S. 337 (statutory interpretation begins with plain text)
- Dutcher v. Matheson, 733 F.3d 980 (10th Cir. 2013) (burden on removing party to establish federal jurisdiction)
- Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195 (10th Cir. 2012) (complete-preemption doctrine explained as narrow corollary to well-pleaded complaint rule)
- Beneficial Nat. Bank v. Anderson, 539 U.S. 1 (complete preemption inquiry focuses on whether Congress intended an exclusive federal cause of action)
- Grable & Sons Metal Prods. v. Darue Eng'g, 545 U.S. 308 (federal-question jurisdiction for state-law claims that necessarily raise substantial federal issues)
- Gunn v. Minton, 568 U.S. 251 (Grable/embedded-federal-question test requires federal issue be necessarily raised, actually disputed, substantial, and capable of resolution without disturbing federal-state balance)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (plaintiff may avoid federal jurisdiction by omitting federal claims; defendants cannot premise removal on unpleaded federal issues)
- Hansen v. Harper Excavating, Inc., 641 F.3d 1216 (10th Cir. 2011) (ordinary preemption is an affirmative defense and does not authorize removal)
- Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir. 1996) (discussion of complete preemption as narrow doctrine)
- Gilmore v. Weatherford, 694 F.3d 1160 (10th Cir. 2012) (Grable is a narrow path to federal jurisdiction)