MICHAEL LAWLER, Individually and as Heir and Successor in Interest to BILL LAWLER, Deceased v. CEDAR OPERATIONS, LLC d/b/a CEDAR MOUNTAIN POST ACUTE
Case No.: EDCV 21-01017-CJC(SHKx)
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION
October 7, 2021
JS-6
On February 4, 2021, Plaintiff Michael Lawler filed an action in San Bernardino County Superior Court on his own behalf and on behalf of his deceased father, Bill Lawler (the “Deceased“), against Defendant Cedar Operations, LLC, alleging violations of California‘s Elder and Dependent Adult Civil Protection Act, negligence, and wrongful death. (See Dkt. 4-1 [Complaint, hereinafter “Compl.“].)
The Deceased contracted COVID-19 at one of Defendant‘s skilled nursing facilities, Cedar Mountain Post Acute (“Cedar Mountain“), and passed away. (See id.) Defendant removed the action to this Court on June 17, 2021. (Dkt. 1 [Notice of Removal].) Defendant argues that removal is appropriate pursuant to the Public Readiness and Emergency Preparedness Act (the “PREP Act“) under the doctrine of complete preemption. (Dkt. 12 [Defendant‘s Oppositiоn to Motion to Remand, hereinafter “Opp.“].) Defendant additionally argues that removal is appropriate under the Grable doctrine and
II. BACKGROUND
On January 1, 2020, the Deceased was admitted to Cedar Mountain for therapy and rehabilitation. (Compl. ¶¶ 11-12, 19.) At the time of his admission, the Deceased was 56 years old and had several medical and mental issues that prevented him from carrying out normal daily activities. (See id. ¶ 9.) Defendant knew that the Deceased was in a
At some point after January 1, 2020, the Deceased was discharged from Cedar Mountain so that he could receive treatment for his kidneys at a hospital. (Id. ¶ 19.) He was readmitted to Cedar Mountain on March 18, 2020. (Id.) Plaintiff alleges that prior to the Deceased‘s return, there was a COVID-19 outbreak within Cedar Mountain. (Id. ¶ 2.) Plaintiff alleges that Defendant knew of the outbreak but failed to alert the Deceased or his family to the same prior to readmitting him. (Id. ¶¶ 2, 22a-b.) As a result, the Deceased contracted COVID-19. (Id. ¶ 22.) Plaintiff further alleges that because Cedar Mountain staff were afraid of contracting COVID-19 from the Deceased, they did not provide the Deceased with a much-needed dialysis treatment on April 3, 2020. (Id. ¶ 23.) The Deceased passed away “from COVID-19 ailments” on April 5, 2020. (Id. ¶ 22.)
III. LEGAL STANDARD
Federal courts have subject matter jurisdiction only over matters authorized by the Constitution and Congress. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A suit filed in state court may be removed to federal court if the federal court would have had original jurisdiction over the suit.
In his motion to remand, Plaintiff argues that the Court lacks subject matter jurisdiction over his state law claims. (See Mot.) Defendant rebuts that: (1) all of Plaintiff‘s claims are completely preempted by the PREP Act, which provides a basis for federal question jurisdiction, (2) the Grable doctrine provides a second ground for federal question jurisdiction, and (3) removal is appropriate under
Defendant is one in a long line of defendants who have attempted to remove state law claims arising out of COVID-19 relatеd injuries using the same arguments as Defendant presents here. This Court joins the chorus of courts who have remanded such cases when presented with similar facts and arguments as those in the present action.2 The Court addresses each of Defendant‘s three arguments in turn below.3
1. The Complete Preemption Doctrine
Ordinarily, federal preemption of state law claims is raised as a federal defense, which is not a legitimate basis for removal. See Caterpillar v. Williams, 482 U.S. 386, 392-93 (1987). However, when state lаw claims are completely preempted by a federal statute, they may be “recharacterized” as federal claims and removed to federal court. See Vaden v. Discover Bank, 556 U.S. 49, 61 (2009); Beneficial Nat‘l Bank v. Anderson, 539 U.S. 1, 8 (2003). The Ninth Circuit has held that “complete preemption for purposes of federal jurisdiction under Section 1331 exists when Congress: (1) intended to displace a state-law cause of action, and (2) provided a substitute cause of action.” City of Oakland v. BP PLC, 969 F.3d 895, 906 (9th Cir. 2020) (internal citation omitted). “[C]omplete preemption is rare.” Hansen v. Group Health Cooperative, 902 F.3d 1051, 1057 (9th Cir. 2018). The Supreme Court has found complete preemption applicable to only three federal statutes. See City of Oakland, 969 F.3d at 905 (noting that complete preemption applies only to
The PREP Act authorizes the Secretary of Health and Human Services (“HHS“) to issue a declaration determining that “a disease or other health condition or other threat to health constitutes a public health emergency.”
On March 10, 2020, the HHS Secretary (the “Secretary“) declared the COVID-19 pandemic a public health emergency under the PREP Act. 85 Fed. Reg. 15198. In the declaration, the Secretary defined “covered countermeasures” as: “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19...or any device used in the administration of any such product, and all components and constituent materials of any such product.” Id. at 15202. On December 3, 2020, the Secretary amended his March 2020 declaration for a fourth time (hereinafter “FAD“), in part to provide an explanation of what is meant by “administration of covered countermeasures.” 85 Fed. Reg. 79190. The Secretary explained that administration refers to the “physical provision of the countermeasures to
3. Plaintiff‘s Claims Do Not Fall Within the Scope of the PREP ACT
Plaintiff has only alleged inaction in his complaint, and not the type of inaction the Secretary identified as falling within the scope of the PREP Act. Before complete preemptiоn can apply to a plaintiff‘s state law claims, the claims at issue must fall within the scope of the relevant federal statute. See Stone v. Long Beach Healthcare Center, LLC, 2021 WL 1163572, at *4-5 (C.D. Cal. Mar. 26, 2021); Smith v. Colonial Care Center, Inc., 2021 WL 1087284, at *4 (C.D. Cal. Mar. 19, 2021). Surely, failing to inform the Deceased or his family of a COVID-19 outbreak at Cedar Mountain before readmitting the Deceased to the facility has nothing to do with the administration of covered countermeasures. See, e.g., Hopman v. Sunrise Villa Culver City, 2021 WL 1529964, at *4-6 (remanding when plaintiff alleged failure to isolate patients and failure to notify decedent‘s spouse of decedent‘s move to a shared room); (see also Compl. ¶ 22a-b.) The same goes for Defendant‘s alleged failure to enforce social distancing, cancel group activities, restrict visitation, and ensure adequate staff. (See Compl.
Defendant seizes on Plaintiff‘s allegation that Cedar Mountain failed to properly implement and maintain a proper infection prevention and control program, actively screen staff for fever or symptoms, and monitor the Decedent for changes in his health. (Opp. at 16.) Though Plaintiff‘s complaint never mentions a covered countermeasure explicitly, Defendant argues that these allegations “by their very nature relate to usе of covered countermeasures.” (Id.) This has become a common refrain from defendants seeking to remove COVID-related actions to federal court, and courts within this district have routinely rejected the argument when faced with similar allegations. See Stone, 2021 WL 1163572 at *4-5; Smith, 2021 WL 1087284 at *4-6; Winn v. California Post Acute LLC, 2021 WL 1292507, at *3 (C.D. Cal. Apr. 6, 2021); Estate of McCalebb v. AG Lynwood, LLC, 2021 WL 911951, at *5 (C.D. Cal. Mar. 1, 2021).
McCalebb is particularly instructive on this point and involves several allegations that are markedly similar to those at issue in the present action. In McCalebb, the court addressed allegatiоns that the defendant failed to isolate COVID-19 carriers, notify staff or residents of COVID-19 carriers, take necessary precautions to ensure the decedent did not contract COVID-19, test residents and staff, and provide personal protective equipment to its employees. 2021 WL 911951, *1-2. The court acknowledged that HHS‘s FAD declared that purposeful decisions to refrain from acting based on resource allocation and presеrvation fell within the scope of the PREP Act. Id. at *5. But the court concluded it was not faced with such a case. While the complaint in McCalebb did reference the defendant‘s alleged failure to use certain covered countermeasures, the court concluded that the complaint nonetheless “describe[d] overall inattention rather than conscious decision-making about covered countermeasures while delivering cаre.” Id. at *5.
Defendant invites the Court to read references to covered countermeasures into Plaintiff‘s Complaint. For example, Defendant arguеs that its alleged failure to monitor the temperatures of its patients and staff necessarily relates to the use of thermometers, a covered countermeasure. (Opp. at 16.) Even if the Court allows this expansive reading of Plaintiff‘s complaint, see Forman v. C.p.c.h., Inc., 2021 WL 2209308, at *2 (C.D. Cal. June 1, 2021) (criticizing the defendant for reading too much into the plaintiff‘s complaint), Defendant‘s argument does not hold up. If anything, Defendant‘s alleged failure to monitor the temperaturеs of its staff and patients relates to the nonuse of thermometers, and nothing in the Complaint would suggest that such nonuse was the thought-out result of a shortage in thermometers.
Further, Defendant points out various actions that it took at Cedar Mountain that involved the administration of covered countermeasures to argue that this is not a case of pure inaction. (Opp. at 17.) Defendant very well may have taken some actions at Cedar Mountain, but it dоes not necessarily follow that the inaction alleged in the complaint was the product of a reasoned decision. See Brown v. Big Blue Healthcare, 480 F.Supp. 3d 1196, 1206 (D. Kan. 2020) (“[A] facility using covered countermeasures somewhere
4. The PREP Act Is Not A Complete Preemption Statute
Even if Plaintiff‘s allegations could be read as relating to the administration of covered countermeasures, the Court agrees with multiple other courts that the PREP Act is not a complete preemption statute. First, this case, as well as the number of other cases holding that general inaction does not fall within the scope of the PREP Act when such inaction is not the product of reasoned resource allocation, show that the PREP Act does not “wholly displace” state law claims. See Beneficial Nat‘l Bank, 539 U.S. at 8; see also Stone, 2021 WL 1163572 at *5 (“[T]he PREP Act does not completely replace state law claims related to COVID-19. As many courts have held, the PREP Act does not prevent plaintiffs from bringing state law claims based on an alleged failure to use covered countermeasures.“); Winn, 2021 WL 1292507 at *4-5.
Additionally, the PREP Act does not provide a substitute cause of action for Plaintiff‘s negligence or recklessness claims.5 See City of Oakland, 969 F.3d at 906. Rather, Congress established an emergency fund to provide “adequate compensation to eligible individuals for covered injuries directly caused by the administration or use of a covered countermeasure.”
B. The Grable Doctrine
Defendant next argues that the Grable doctrine provides federal question jurisdiction over this case. The Supreme Court in Grable & Sons Metal Products, Inc v. Darue Eng‘g & Mfg. held that federal question jurisdiction lies where a state law claim “necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionаlly approved balance of federal and state judicial responsibilities.” 545 U.S. 308, 314 (2005). In other words, “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). Here, a federal issue is not necessarily raised by Plaintiff‘s Complaint because the federаl issue arises from Defendant‘s potential preemption
The Secretary and the HHS Office of General Counsel (the “OGC“) have expressed a contrary view. See FAD; AO 21-01.7 In the FAD, the Secretary explained that “there are substantial federal legal and policy issues, and substantial federal legal and policy interests within the meaning of Grable...in having a unified, whole-of-nation response to the COVID-19 pandemic.” 85 Fed. Reg. at 79198. In a January 8, 2021 advisory оpinion, the OGC summarily concluded that the Secretary‘s statement “provides the underlying basis for invoking the Grable doctrine with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.” (AO 21-01 at 4-5.) Neither the Secretary nor the OGC explained why Grable‘s requirements are met solely because there is a substantial federal interest in a unified response to the COVID-19 pandemic. Such an analysis ignores other of Grable‘s factors—that a substantial federal interest exists does not mean that it is necessarily raised by a plaintiff‘s claims in cases such as the present action. The Court follows various other courts in this district in not giving weight to the conclusory Grable analyses of the Secretary and the OGC. See Stone, 2021 WL 1163572 at *7; McCalebb, 2021 WL 911951 at *3; Winn, 2021 WL 1292507 at *5, n.2.
Finally, Defendant argues that removal is appropriate under
Defendant argues that it was acting under the direction of a federal officer by following the detailed dirеctives issued by the Centers for Disease Control (“CDC“) and the Centers for Medicare and Medicaid Services (“CMS“). (Opp. at 21-25.) As explained in Section IV.A., Plaintiff alleges that Defendant failed to act. Defendant‘s inaction cannot be characterized as action under the direction of a federal officer. Further, numerous courts in this district have held that skilled nursing facilities have not acted under the direction of a federal officer in following the COVID-related directives of the CDC and CMS, finding instead that those facilities have merely been complying with federal regulations. See Saldana v. Glenhaven Healthcare LLC, 2020 WL 6713995, at *3 (C.D. Cal. Oct. 14, 2020)
Defendant has done nothing to distinguish itself from the nursing facilities involved in these cases. At most, Defendant has established that it is subject to “highly detailed” regulations and that its “activities are highly supervised and monitored.” See Watson, 551 U.S. at 152. That is not sufficient to invoke federal officer removal.
V. CONCLUSION
For the foregoing reasons, Plaintiff‘s Motion to Remand is GRANTED. This action is hereby remanded back to San Bernardino County Superior Court.
DATED: October 7, 2021
CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE