Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS GORDAN GROHMANN, JR.,
individually and as Special administrator
of Estate of GORDON GROHMAN, SR.
Plaintiff, v. Case No. 20-2304-DDC-JPO HCP PRAIRIE VILLAGE KS
OPCO LLC, et al.,
Defendants. MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s Motion to Remand to State Court (Doc. 15). Plaintiff argues that his Kansas state law claims belong in state court. Defendants argue that a federal law—the Public Readiness and Emergency Preparedness Act (PREP Act)— completely preempts plaintiff’s claims, thus providing this court with subject matter jurisdiction over them.
While plaintiff’s remand motion was pending, several federal district courts, including our own, ruled on similar jurisdictional issues. The court ultimately finds those cases persuasive and concludes that the Secretary of Health and Human Services’s December 3, 2020 Amendment to the Declaration reinforces the holdings in those cases. For reasons explained below, the court remands the matter for lack of subject matter jurisdiction.
I. Background
Gordon Grohman, Sr. [1] lived in the northeast Kansas town of Prairie Village. Doc. 1-1 at 2 (Pet. ¶ 1). Around August 2018, he began to reside at Brighton Gardens of Prairie Village, an independent living facility. Id. at 2–3 (Pet. ¶¶ 1, 7). He was a paying resident there for the purpose of receiving protective care and oversight and all other necessary care for his existence because he was unable to care for himself. Id. at 7 (Pet. ¶ 23).
In early to mid-April 2020, Brighton Gardens confirmed its first positive cases of COVID-19 at its facility. Id. (Pet. ¶ 28). By April 24, 2020, 13 residents and seven staff members had tested positive for COVID-19. Id. (Pet. ¶ 29). While a resident at Brighton Gardens, Mr. Grohman was exposed to COVID-19. Id. at 2 (Pet. ¶ 2). By April 29, 2020, he was extremely confused and exhibited multiple symptoms of COVID-19. Id. at 8 (Pet. ¶ 35). His family insisted that Brighton Gardens arrange to transport him to the hospital on April 29, 2020. Id. (Pet. ¶ 36). On April 30, 2020, Mr. Grohman was diagnosed COVID-19 positive. Id. (Pet. ¶ 37). The next day, he died from the virus. Id. at 2, 8 (Pet. ¶¶ 1–2, 38).
On May 18, 2020, plaintiff filed this action in Johnson County, Kansas District Court individually and as Special Administrator of the Estate of Gordon Grohman, Sr. Id. at 2 (Pet.). Plaintiff has sued defendants for wrongful death, lost chance of survival, and negligence. He avers, among other things, that:
Defendants “failed to timely intervene to obtain medical attention for” decedent. Doc. 1-1 at 8 (Pet. ¶ 36).
“Defendants failed to ensure its workers were not working with symptoms consistent with COVID-19.” Id. (Pet. ¶ 40).
“Defendants failed to train, instruct, and/or monitor staff use of proper personal protective equipment to prevent spread of COVID-19.” Id. at 8–9 (Pet. ¶ 41). “Defendants failed to effectively separate those with symptoms of COVID-19 from the remaining population of the facility.” Id. at 9 (Pet. ¶ 42).
“Defendants failed to adhere to social distancing guidelines put in place in March 2020 to keep its residents safe from being exposed to COVID-19.” (Pet. ¶ 43). “Defendants otherwise failed to sufficiently control or manage the presence of COVID-19 in the facility.” Id. (Pet. ¶ 44).
“Defendants failed to timely implement a plan of improvement to address the COVID-19 outbreak at the facility.” Id. (Pet. ¶ 45).
“Defendants negligently failed to follow proper infection control protocols and prevent an outbreak of COVID-19. Id. at 8 (Pet. ¶ 39).
He also alleges that defendants were negligent in:
“failing to follow proper guidelines in place for the prevention of COVID-19 outbreaks in long term care facilities[.]” Id. (Pet. ¶ 47(a)).
“failing to ensure its staff was not allowed to work at Brighton Gardens when they exhibited signs and symptoms consisted with COVID-19[.]” Id. (Pet. ¶ 47(b)). “failing to instruct, train, and/or monitor staff regarding the appropriate use of personal protective equipment and infection control protocols[.]” (Pet. ¶ 47(c)).
“failing to properly respond to the presence of COVID-19 in the defendant facility to prevent spread[.]” Id. (Pet. ¶ 47(d)).
“failing to timely request additional staff, resources, and other assistance from the public health entities available to respond to COVID-19[.]” Id. (Pet. ¶ 47(e)). “failing to separate residents with signs and symptoms of COVID-19 from the remaining resident population[.]” Id. (Pet. ¶ 47(f)).
“failing to prevent staff members from coming into contact with both COVID-19 positive and negative residents such that staff members spread the virus from person to person[.]” Id. (Pet. ¶ 47(g)).
“failing to adhere to social distancing guidelines put in place in March 2020 to keep its residents safe from being exposed to COVID-19[.]” Id. (Pet. ¶ 47(h)). “failing to timely, consistently, and properly assess, re-assess and document Gordon Grohman’s physical condition[.]” Id. (Pet. ¶ 47(i)).
“failing to properly supervise and train Defendants’ agents and/or servants who were responsible for the care, treatment, and oversight of Gordon Grohman, Sr.” Id. (Pet. ¶ 47(j)).
“failing to carry out and follow standing orders, instructions, and protocol regarding the prevention of COVID-19[.]” Id. (Pet. ¶ 47(k)).
“failing to provide adequate training to staff regarding prevention of COVID- 19[.]” Id. (Pet. ¶ 47(l)).
“failing to implement appropriate interventions and thereby allowing Gordon Grohman, Sr. to be exposed to COVID-19 in the defendant facility[.]” Id. (Pet. ¶ 47(m)).
“failing to document changes in Gordon Grohman, Sr.’s condition[.]” Id. (Pet. ¶ 47(n)).
“failing to adequately, accurately and timely monitor Gordon Grohman, Sr.’s changes in condition[.]”
The court next explains how this state law action made its way to federal court, and then determines whether it properly may remain here.
II. Procedural History
On June 19, 2020, defendants filed a Notice of Removal with this court (Doc. 1). They followed up by filing a Motion to Dismiss for Failure to State a Claim (Doc. 8). Plaintiff then filed a Motion to Remand to State Court (Doc. 15). Defendants filed a Response and Request for Jurisdictional Hearing (Doc. 36). And plaintiff filed a Reply (Doc. 39). [2]
Defendants also filed a Counterclaim for declaratory relief (Doc. 35). Plaintiff filed a Motion to Dismiss the Counterclaim (Doc. 42) and a Memorandum in Support (Doc. 43). Defendant filed a Response and Request for Hearing (Doc. 52). And plaintiff filed a Reply (Doc. 53).
A. Defendants’ Motion for Leave to File Surreply On August 26, defendants filed a Motion for Leave to File Surreply (Doc. 41) to plaintiff’s Reply supporting his Motion to Remand. Plaintiff responded (Doc. 45).
The court’s local rules limit briefing on motions to the motion, a memorandum in
support, a response, and a reply. D. Kan. Rule 7.1(a) & (c). “Surreplies are typically not
allowed.”
Taylor v. Sebelius
,
Here, defendants assert that “decisions on motions for remand have been issued by federal courts . . . after Defendants filed their Response” and only plaintiff “had an opportunity to address” them. Doc. 41 at 2. Plaintiff “recognizes that new legal authorities were cited in his Reply.” Doc. 45 at 1 (¶ 3). But he asks the court to limit the sur-reply “to responding to those new authorities.” Id. Specifically, plaintiff asks the court to prohibit defendant from addressing “a ‘new opinion letter’ purportedly authored by the Office of General Counsel, Secretary of the Department of Health and Human Services on August 14, 2020[.]” Doc. 45 at 1 (¶ 4). Defendants respond that the letter is “highly relevant” because plaintiff names senior living communities in this suit and makes express allegations which squarely invoke the statute the letter interprets. Doc. 51 at 2. But defendants cite no authority holding that the decision whether to grant a motion for leave to file a sur-reply containing new authorities turns on relevance.
Nevertheless, this case presents circumstances that warrant leave for a sur-reply. Exercising its discretion, the court grants defendants’ Motion for Leave to File Surreply (Doc. 41) consistent with this Order. The court will consider the arguments presented by defendants’ Surreply (Doc. 41-1) in its analysis, below. The court also directs the Clerk to docket Doc. 41-1 as defendants’ Sur-reply. Given the extended opportunity to sharpen the issues for the court, and the quality of the briefs submitted, the court concludes that oral argument will not assist its work and thus, to grant it, would contradict Fed. R. Civ. P. 1. Exercising its discretion, the court thus denies defendants’ Request for a Jurisdictional Hearing (Doc. 36).
III. Legal Standard
“‘Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute[.]’”
United States v. James
,
IV. Discussion
This case, in a nutshell, requires the court to decide whether plaintiff’s claims arise under federal law for purposes of statutory federal question jurisdiction. This question requires the court to consider the doctrine of “complete preemeption” and thus determine whether plaintiff’s state court allegations fall within the scope of a federal remedial right.
In this case, the relevant remedial right comes from the PREP Act, 42 U.S.C. §§ 247d— d-10. And the scope of that remedial right depends on a few words in the statute, i.e. ,: “injuries directly caused by the administration or use of a covered countermeasure[.]” 42 U.S.C. § 247d- 6e(a). Plaintiff’s Motion to Remand thus turns on whether this federal remedy envelops plaintiff’s removed state law claims. But before diving into that deep well of arguments, the court reviews several general rules governing removal of state law claims to federal court.
A. Removal of Federal Question Cases to Federal Court
Congress has granted federal district courts authority to hear certain civil actions brought
originally in state court.
See
28 U.S.C. § 1441. “Under the removal statute, ‘any civil action
brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed by the defendant’ to federal court.”
Aetna Health Inc. v. Davila
,
“One category of cases of which district courts have original jurisdiction is ‘[f]ederal
question’ cases: cases ‘arising under the Constitution, laws, or treaties of the United States.’”
Id.
(quoting 28 U.S.C. § 1331). “Ordinarily, determining whether a particular case arises under
federal law turns on the ‘well-pleaded complaint’ rule.” (citation and internal quotation
marks omitted). Under this rule, “a suit arises under federal law only when the plaintiff’s
statement of his own cause of action shows that it is based on federal law.”
Devon Energy Prod.
Co., L.P. v. Mosaic Potash Carlsbad, Inc.
,
A federal defense typically cannot supply the federal question required by the well-
pleaded complaint rule, and thus cannot create statutory federal question jurisdiction.
Id.
;
see
also Louisville & Nashville R.R. Co. v. Mottley
,
“There is an exception, however, to the well-pleaded complaint rule. ‘[W]hen a federal
statute wholly displaces the state-law cause of action through complete pre-emption,’ the state
claim can be removed.”
Davila
,
The court now explores the “complete preemption” doctrine and considers whether this exception to the well-pleaded complaint rule applies here.
B. The Doctrine of “Complete Preemption”
“In
Anderson
, the Supreme Court held that a state claim may be removed to federal court
in only two circumstances: (1) ‘when Congress expressly so provides’; or (2) ‘when a federal
statute wholly displaces the state-law cause of action through complete pre-emption.’”
Devon
Energy
,
Courts make a habit of pointing out that the preemption required to invoke the “complete
preemption” doctrine is not the “ordinary preemption” that defendants usually rely on as a
defense.
See Devon Energy
,
“‘When the federal statute completely pre-empts the state-law cause of action, a claim
which comes within the scope of that cause of action, even if pleaded in terms of state law, is in
reality based on federal law.’”
Dutcher
,
To determine whether a federal act completely preempts plaintiff’s claims, the court must
answer two questions affirmatively: (1) does “the federal regulation at issue preempt[ ] the state
law relied on by the plaintiff”; and (2) did Congress intend to allow removal in this case.
Devon
Energy
,
Under either formulation of the complete preemption analysis, “the claims at issue must
fall within the scope of the relevant federal statute for complete preemption to apply.”
Eaton v.
Big Blue Healthcare, Inc.
, ___ F. Supp. 3d ___, No. 2:20-CV-2291-HLT-JPO, 2020 WL
4815085, at *4 (D. Kan. Aug. 19, 2020) (citation omitted);
see also Anderson
,
Here, defendants assert that federal question jurisdiction exists via complete preemption, so “it is their burden to show that, first, the PREP Act applies” to plaintiff’s claims. Eaton , 2020 WL 4815085, at *6.
The court next introduces the PREP Act and then turns to this preliminary question. C. Whether Plaintiff’s Claims Fall Within a PREP Act Remedy 1. The PREP Act
“In a nutshell, the PREP Act empowers the Secretary of the Department of Health and
Human Services to deem an event a ‘public health emergency’ and then take action to utilize
funds established by the Treasury to manage the emergency.”
Sherod v. Comprehensive
Healthcare Mgmt. Servs., LLC
, No. 20CV1198,
In March 2020, Secretary Alex Azar issued a PREP Act declaration for COVID-19.
[3]
On
December 3, 2020, he issued the Fourth Amendment to the Declaration.
2. The PREP Act Creates Federal Remedial Rights
“In order to determine whether complete preemption is applicable here, [the court] must
first address whether federal law provides a private right of action to sue for violations . . . .”
Dutcher
,
Next, the court considers the scope of these federal remedial rights.
3. The Scope of the PREP Act’s Remedial Rights a. Generally
Our court has examined recently the PREP Act and the scope of its causes of action. See,
e.g.
,
Eaton
,
In sum, the PREP Act creates immunity for all claims of loss causally connected to
the administration or use of covered countermeasures, which are certain drugs,
biological products, or devices. Exceptions to immunity exist for claims of willful
misconduct but suit must be brought in the United States District Court for the
District of Columbia. All other claims for injuries “directly caused by the
administration or use of a covered countermeasure
” must be pursued through
the Covered Countermeasure Process Fund. State laws that differ or conflict
regarding the administration or use of covered countermeasures are preempted.
at *5 (emphasis added);
see also Sherod
,
summary of the PREP Act as set forth by the United States District Court for the District of Kansas”). Here, the Petition alleges nothing about willful misconduct, so plaintiff’s claims cannot fall within the scope of the act’s first remedy. The court thus focuses on the second federal remedy—claims under the Covered Countermeasure Process Fund.
b. Covered Countermeasure Process Fund Claims Under § 247d-6e(a)
“Upon the issuance by the Secretary of a declaration under section 247d-6d(b) . . . there
is hereby established in the Treasury an emergency fund . . . for purposes of providing timely,
uniform, and adequate compensation to eligible individuals for covered injuries directly caused
by the administration or use of a covered countermeasure pursuant to such declaration[.]” 42
U.S.C. § 247d-6e(a). If plaintiff’s allegations do not assert “injuries directly caused by the
administration or use of a covered countermeasure[,]” then the claim falls outside the scope of
the federal remedy.
Id.
And if the claim falls beyond the scope of the federal remedy, that
federal cause of action cannot serve as the basis for complete preemption of plaintiff’s state law
claim(s).
See Franchise Tax Bd.
,
“A ‘covered countermeasure’ under the PREP Act is, simplified, a drug, biological
product, or device that is a ‘qualified pandemic or epidemic product’ or a ‘security
countermeasure,’ or is authorized for emergency use under the Federal Food, Drug, and
Cosmetic Act.”
Eaton
,
(a) Any antiviral, any drug, any biologic, any diagnostic, any other device, any respiratory protective device, or any vaccine manufactured, used, designed, developed, modified, licensed, or procured:
i. To diagnose, mitigate, prevent, treat, or cure COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom; or ii. to limit the harm that COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, might otherwise cause; (b) a product manufactured, used, designed, developed, modified, licensed, or procured to diagnose, mitigate, prevent, treat, or cure a serious or life-threatening disease or condition caused by a product described in paragraph (a) above; (c) a product or technology intended to enhance the use or effect of a product described in paragraph (a) or (b) above; or
(d) any device used in the administration of any such product, and all components and constituent materials of any such product.
The PREP Act does not define “administration or use.” But the Declaration explains that
“Administration of the Covered Countermeasure means [1] physical provision of the
countermeasures to recipients, or [2] activities and decisions directly relating to public and
private delivery, distribution and dispensing of the countermeasures to recipients, management
and operation of countermeasure programs, or management and operation of locations for the
purpose of distributing and dispensing countermeasures.”
To determine the scope of the statute’s compensation fund remedy, the court now reviews cases from our court and others that have construed this PREP Act provision.
4. Relevant Cases from Our Court and Others
Plaintiff’s Motion to Remand raises questions similar to those that several courts,
including our own, have confronted recently. In eleven related cases,
[5]
our court held that the
PREP Act was “inapplicable” to plaintiffs’ negligence claims where plaintiff’s “case is premised
on inaction” and there was “no clear allegation that any injury or claim of loss was caused by the
administration or use of any covered countermeasure, let alone that the loss arose out of, related
to, or resulted from the same.”
Eaton
,
Several other federal district courts have reached similar conclusions.
See Sherod
, 2020
WL 6140474, at *6–7 (holding that because Complaint alleges that defendant “failed to provide
decedent with any protection/countermeasures, Plaintiff’s claims fall outside the purview of the
PREP Act which purports to provide immunity to facilities like [defendant] when a claim is
brought against them for the countermeasures the facility actually utilized”);
Gunter v. CCRC
OPCO-Freedom Square, LLC
, No. 8:20-cv-1546-T-36TGW,
And several state court decisions fall in the same line.
See, e.g.
,
Casabianca v. Mount
Sinai Med. Ctr
, No. 112790/10,
“Read together,
Maglioli
,
Casabianca
, and
Parker
support the conclusion that the PREP
Act applies to action, not inaction.”
Eaton
,
5. Whether “Inaction Claims” Can Fall Within the PREP Act’s Scope
On December 3, 2020, the HHS Secretary amended, among other provisions, Section IX
of the Declaration to note that “[w]here there are limited Covered Countermeasures,
not
administering a Covered Countermeasure to one individual in order to administer it to another
individual can constitute ‘relating to . . . the administration to . . . an individual’ under 42 U.S.C.
247d–6d.”
So, based on the recent amendment, an “inaction claim” is not necessarily beyond the scope of the PREP Act. The statute’s immunity provision could cover a claim of inaction or failure to administer countermeasures. But, this possibility does not upend the distinction between action and inaction that our court and others have drawn. The Declaration suggests that alleged inaction or failure to administer countermeasures falls within the grant of federal immunity when paired closely with an act of administration to another.
The Secretary notes that “ not administering a Covered Countermeasure” can constitute “‘relating to . . . the administration to . . . an individual’” under 42 U.S.C. § 247d-6d where (1) “there are limited Covered Countermeasures,” and (2) the failure to administer to one individual is “in order to administer it to another individual[.]” (quoting 42 U.S.C. § 247d-6d (emphasis added)); Doc. 58-1 at 3–4 (HHS Advisory Op. 21-01). The Secretary’s illustration reinforces the need for these two conditions for “inaction claims” to fall within the statute’s reach. See 85 Fed. Reg. at 79,197 (illustrating a causal relationship between (1) administering and (2) not administering a covered countermeasure where person-A “was able to receive the [single covered countermeasure] only because it was not administered to” person B (emphasis added)).
This illustration reflects the difference between (1) robbing Peter and paying Paul, and (2) robbing Peter to pay Paul—or more precisely: not paying Peter in order to pay Paul. HHS Advisory Opinion 21-01 emphasizes this distinction: “The language of the PREP Act itself supports a distinction between allocation which results in non-use by some individuals, on the one hand, and nonfeasance, on the other hand, that also results in non-use.” Doc. 58-1 at 4.
So, the court is mindful of Secretary Azar’s understanding that PREP Act immunity can cover certain inaction claims. But this case’s motion requires the court to determine the scope of PREP Act’s remedy—not its grant of immunity. The court nonetheless concludes that the Declaration’s emphasis on causation in the context of non-administration claims reinforces our court’s causation analysis in related PREP Act cases.
Specifically, our court has rejected the notion “that a facility using covered countermeasures somewhere in the facility is sufficient to invoke the PREP Act as to all claims that arise in that facility” because the statute “still requires a causal connection between the injury and the use or administration of covered countermeasures[.]” See Eaton , 2020 WL 4815085, at *7 (second emphasis added). Consistent with Eaton and its sibling cases, the Declaration’s two conditions for PREP Act immunity in “inaction claims” for not administering a covered countermeasure require a close causal relationship between the injurious inaction and the corresponding administration or use that caused it.
6. Whether Plaintiff’s Claims Fall Within the PREP Act’s Cause of Action
Plaintiff’s Petition alleges that defendants failed to act in many different ways.
See
Doc.
1-1 at 9–11 (Pet.). And plaintiff alleges that those failures to act directly and proximately caused
the alleged harms.
See id.
at 11–13 (Pet. ¶¶ 52–53, 56–57, 60). As in
Eaton
, plaintiff here
alleges that defendants failed to take various preventive measures to stop the entry, spread, and
consequences of COVID-19 within the facility and that defendants’ failure to take those
precautions led decedent to contract, develop, and die of COVID-19.
See id.
at 8–11 (Pet.);
see
also Eaton
,
Defendants try their best to contort plaintiff’s allegations of inaction into action. Their mental gymnastics stretch these allegations well beyond all measure of reasonable flexibility. To be sure, the Petition references “personal protective equipment” (PPE). See Doc. 1-1 at 8–9 (¶¶ 41, 47(c)). But one can hear ligaments begin to pop when defendants assert that “a plain reading of the Petition reveals that Plaintiff does, in fact, allege Defendants’ active administration of certain countermeasures.” Doc. 36 at 13 (emphasis added); see also Doc. 36 at 22 (asserting that it is “clear” that plaintiff’s Petition “expressly implicates the use of at least three covered countermeasures”).
Defendants also assert that plaintiff “alleged and acknowledged [1] testing, [2] use of PPE, and [3] other administration of countermeasures to residents and staff at Brighton Gardens.” Doc. 36 at 26. Defendants aver that plaintiff “expressly alleges that Defendants conducted diagnostic testing of numerous staff members and residents for COVID-19, including the decedent.” Doc. 36 at 13 (citing Doc. 1-1 at 7–8 (Pet. ¶¶ 29, 37)); see also Doc. 36 at 17 (citing Doc. 1-1 at 7–8 (Pet. ¶¶ 29, 37)); Doc. 36 at 23 (citing Doc. 1-1 at 7–8 (Pet. ¶¶ 28, 29, 37)). But these citations to the Petition can’t support defendants’ characterizations of plaintiff’s claims. Plaintiff does not “expressly allege[ ]” that defendants “conducted” diagnostic testing. Doc. 36 at 13. He alleges only that people tested positive, but never alleges who conducted the testing. See Doc. 1-1 at 7–8 (Pet. ¶¶ 28, 29, 37).
Defendants decipher the Petition to conjure the various elements of a PREP Act claim.
But that approach doesn’t employ the proper method for determining whether a case belongs in
federal court.
See Eaton
,
But even if the court were prepared to assume that the Petition alleges conduct that
qualifies as “administration or use of a covered countermeasure” within the meaning of the
PREP Act, the statute “still requires a causal connection between the injury and the use or
administration of covered countermeasures[.]”
See Eaton
,
As explained above, in theory, certain inaction claims could trigger the PREP Act. But here, plaintiff alleges neither (1) limited covered countermeasures nor (2) a failure to administer those countermeasures to decedent “in order to administer it to another individual[.]” 85 Fed. Reg. at 79,197. And while defendants have characterized their actions in such terms, [7] the Petition alleges nothing about “[p]rioritization or purposeful allocation of a Covered Countermeasure[.]” If plaintiff alleges the administration of a covered countermeasure at all, he alleges no direct causal connection between (1) decedent’s injuries and (2) defendants’ decisions to administer to another person the covered countermeasures that defendants claim the Petition refers to—PPE, diagnostic tests, an infection control plan, or actions under Kan. Admin. Regs. § 26-41-207. See Doc. 36 at 22–23.
In sum, plaintiff’s allegations of inaction assert none of the qualifying inactions described
by the Declaration.
See
The Petition offers “no clear allegation that any injury or claim of loss was caused by the
administration or use of any covered countermeasure, let alone that the loss arose out of, related
to, or resulted from the same.”
Eaton
,
In sum, Congress has not completely preempted any of this plaintiff’s state law claims. With that exception to the “well-pleaded complaint” rule not applying, the court cannot conclude that plaintiff brings a “civil action[ ] arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. [8] Thus, § 1331 cannot serve as the statutory basis for the court to exercise “original jurisdiction” over the action. Unless Congress has provided the court with another source of “original jurisdiction” over this action, removal under 28 U.S.C. § 1441(a) is improper. Defendants identify no alternative source. Nor do they identify another basis for proper removal to federal court.
7. Defendants’ Counterclaim for Declaratory Relief (Doc. 35)
The court also remands defendants’ Counterclaim for a declaratory judgment (Doc. 35). The parties’ briefs on this Counterclaim issue explore some interesting terrain, but the court concludes that other sources of law better answer the question. The Counterclaim may not remain in this court.
“If at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c);
see also Lazorko v. Pa. Hosp.
,
But “the procedural posture of this case requires [the court] to specify the nature of ‘the
case’ to be remanded.”
RMP
,
But even if defendant’s Counterclaim did not fall within “the case” for purposes of § 1447(c)—and to the extent defendants assert that their Counterclaim rightly belongs in federal court—the Counterclaim would suffer subject matter jurisdiction deficiency.
In their filings about whether the Counterclaim should remain in this court, both parties
apply Justice Byron White’s Tenth Circuit opinion in
State Farm Fire & Casualty Co. v. Mhoon
,
Here, the declaratory action remains far from obviously “otherwise justiciable.” So, before potentially applying Mhoon to determine whether the court should exercise jurisdiction over defendants’ Counterclaim for declaratory relief, the court must determine whether it could exercise jurisdiction. To do so, the court looks to precedent and recalls the now familiar rules governing statutory “arising under” jurisdiction that Congress granted in 28 U.S.C. § 1331.
“The Declaratory Judgment Act provides that ‘[i]n a case of actual controversy within its
jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any interested party.’ The Act does not in itself
confer jurisdiction upon federal courts.”
Woods v. City & Cnty. of Denver
,
But the court concludes that precedent both from our Circuit and the Supreme Court
advise otherwise. “
Skelly Oil
has come to stand for the proposition that if, but for the availability
of the declaratory judgment procedure, the federal claim would arise only as a defense to a state
created action, jurisdiction is lacking.”
Franchise Tax Bd.
,
That circumstance presents itself here: but for the availability of the declaratory
judgment procedure under which defendants bring their Counterclaim, the federal claim arises
only as a
defense
to plaintiff’s state created action. As discussed above, plaintiff’s well-pleaded
Complaint does not raise the PREP Act issue that defendants’ declaratory judgment
Counterclaim raises (or, for that matter, any other federal issue). Without the declaratory
judgment mechanism, the federal PREP Act issue could arise only as a defense to plaintiff’s
claims under Kansas state law. The court thus lacks jurisdiction over the Counterclaim.
See
Cardtoons, L.C.
,
The court concludes that defendants’ Counterclaim does not fall within § 1331—the court’s statutory grant of “arising under” subject matter jurisdiction. Even if not part of the case that the court remands under § 1447(c), the court cannot exercise jurisdiction over the Counterclaim.
V. Conclusion
In enacting the PREP Act, Congress created federal remedial rights. But plaintiff’s
claims do not fall within the scope of those remedies. So, this case is not an action where one of
plaintiff’s claims, “even if pleaded in terms of state law, is in reality based on federal law.”
Anderson
,
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Motion to Remand to State Court (Doc. 15) is granted. The court remands this case to the District Court of Johnson County, Kansas.
IT IS FURTHER ORDERED BY THE COURT THAT defendants’ Motion for Leave to File Surreply (Doc. 41) is granted. The court directs the Clerk to docket Doc. 41-1 as defendants’ Sur-reply.
IT IS FURTHER ORDERED BY THE COURT THAT defendants’ Request for a Jurisdictional Hearing (Doc. 36) is denied.
IT IS FURTHER ORDERED BY THE COURT THAT defendants’ Motion to Dismiss for Failure to State a Claim (Doc. 8) is dismissed because the court lacks subject matter jurisdiction to decide the motion. This ruling does not affect defendants’ rights, whatever they are, to present a similar motion to the state court.
IT IS FURTHER ORDERED BY THE COURT THAT defendants’ Counterclaim for declaratory relief (Doc. 35) is remanded because the court lacks subject matter jurisdiction.
IT IS FURTHER ORDERED BY THE COURT THAT plaintiff’s Motion to Dismiss Counterclaim for Declaratory Judgment (Doc. 42) is dismissed because the court lacks subject matter jurisdiction to decide the motion. This ruling does not affect plaintiff’s rights, whatever they are, to present a similar motion to the state court.
IT IS SO ORDERED.
Dated this 29th day of January, 2021, at Kansas City, Kansas.
s/ Daniel D. Crabtree Daniel D. Crabtree United States District Judge
Notes
[1] Plaintiff Gordan Grohmann, Jr. asserts that he is the son of Gordon Grohman, Sr. Doc. 1-1 at 2 (Pet. ¶ 3). To avoid any confusion, the court flags the incongruent spellings of their first and last names.
[2] The parties have also filed notices of supplemental authorities since filing their briefs. See Doc. 54, Doc. 55; Doc. 57; Doc. 58; Doc. 59; Doc. 60. The court has reviewed all of these pleadings and supplemental authorities in deciding the motions. See D. Kan. Rule 7.1(f).
[3] See Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198 (Mar. 10, 2020) (“Declaration”).
[4] The statute’s use of “proximately caused” for one remedy and “directly caused” for another is notable. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, § 25 (2012) (”[W]here the document has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea.”); see also Caleb Nelson, Statutory Interpretation , 88 (2014). But the court need not determine whether the statutory text uses synonymously the terms “directly caused” and “proximately caused” to resolve the Motion to Remand.
[5]
Fortune v. Big Blue Healthcare, Inc.
, No. 2:20-CV-2318-HLT-JPO,
[6] Defendants’ Second Supplemental Authority (Doc. 58) directs the court to HHS Advisory Opinion 21-01 (Doc. 58-1) which the agency’s General Counsel published on January 8, 2021. Advisory Opinion 21-01 reiterates much of the Secretary’s guidance about non-use or failure to administer claims. See Doc. 58-1 at 3–4.
[7] See, e.g. , Doc. 36 at 26 (“Defendants’ decisions regarding allocation, use, and administration of PPE qualifies as ‘administering a covered countermeasure’ and triggers PREP Act immunity, as well as federal jurisdiction in this Court.”); Doc. 36 at 28 (“PREP Act immunity in this case applies to cover decisions regarding the allocation and use of . . . covered countermeasures, such as PPE and testing.”).
[8] To the extent that defendants assert that plaintiff’s state law claims arise under federal law given a
purported embedded federal question,
see, e.g.
, Doc. 41-1 at 8 (Sur-Reply); Doc. 58 at 1 (citing
Grable &
Sons Metal Prods., Inc. v. Darue Eng’g & Mfg.
,