Case No. 2:20-cv-02561-HLT-TJJ
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
February 26, 2021
HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE
MEMORANDUM AND ORDER
Plaintiff Garnice Robertson is the surviving child of Georgia Clardy, who was a resident at a care facility where she contracted and died of COVID-19. Plaintiff filed this wrongful-death action against Defendants1—the owners and operators of the care facility—alleging that they were negligent in failing to protect against COVID-19 infections. Defendants removed this case from state court where it was initially filed, arguing that the Public Readiness and Emergency Preparedness Act,
In keeping with a series of prior rulings regarding similar claims, the Court agrees with Plaintiff that the PREP Act‘s provisions regarding the administration or use of covered countermeasures are not applicable to the allegations in this case, which allege negligence stemming from a failure to follow certain policies, procedures, and guidelines regarding COVID-19. The Court also finds that Plaintiff‘s claims do not present an embedded federal question. Accordingly, this Court lacks subject-matter jurisdiction and remands this case to state court.
I. BACKGROUND
Plaintiff, who is the surviving child of Georgia Clardy, filed this lawsuit in the Wyandotte County District Court in Wyandotte County, Kansas. The petition alleges that Clardy was a resident at Riverbend Post-Acute Rehabilitation, where she was exposed to and contracted COVID-19, and which caused her death. Plaintiff sued Defendants for wrongful death.
The petition alleges that Clardy was admitted to Riverbend in 2017 because she was incapable of caring for herself. On March 21, 2020, Clardy began complaining of knee pain. An x-ray showed a femur fracture that had occurred while staff were repositioning her. Clardy was taken to the hospital, where she was treated for five days, before returning to Riverbend.
By March 13, 2020, Plaintiff alleges Riverbend knew of the risks associated with COVID-19 and the importance of preventing its spread throughout the facility. However, in late March, a Riverbend staff member began showing symptoms of COVID-19 and was allowed to work while the staff member had a cough or fever, and without using personal protective equipment. The staff member was tested on March 29, and the results came back positive
By April 1, Riverbend reported to government officials that it had positive COVID-19 cases. By April 3, seventeen residents and two staff members at Riverbend had tested positive. Clardy was diagnosed as COVID-19 positive in late March or early April and died from COVID-19 on April 15. Plaintiff claims that Defendants breached their duty of care and were negligent and careless by failing to:
- follow proper infection control protocols;
- ensure workers were not working with COVID-19 symptoms;
- provide personal protective equipment (“PPE“) to staff;
- separate those with symptoms from those without;
- adhere to social-distancing guidelines;
- respond to the presence of COVID-19 in the facility;
- timely request additional staff and assistance from public health entities;
- supervise, monitor, assess, and document Clardy‘s condition;
- implement and carry out safe transfer and repositioning processes, and provide a care plan for Clardy‘s increased risk of falls;
- implement a care plan to address Clardy‘s risk of contracting COVID-19;
- protect Clardy from physical harm or injury;
- properly supervise and train staff;
- provide adequate staffing and nursing;
- follow standing orders, instructions, guidelines, and protocol regarding COVID-19; and
- provide adequate interventions.
Plaintiff alleges that this negligence by Defendants caused Clardy‘s death.
Defendants removed the case to federal court. Removal is based on federal-question jurisdiction. Defendants contend that, under the PREP Act, the claims in this case are completely preempted, which gives this Court subject-matter jurisdiction. Shortly after removal, Plaintiff filed a motion to remand this case back to state court.2
II. STANDARD
Under
III. ANALYSIS
A. The surreply and supplemental authorities have been considered.
Defendants filed a motion for leave to file a surreply. Doc. 53.3 Defendants contend that a surreply is necessary to respond to arguments raised for the first time in Plaintiff‘s reply. Plaintiff has not filed any response opposing Defendants’ motion. Surreplies are not permitted without leave of court. See Patterson v. Lansing, 2001 WL 946181, at *2 (D. Kan. 2001). But given the issues at stake and the procedural posture of the case, and given that no opposition was filed, the Court will permit Defendants’ proposed surreply (Doc. 53-1). It has been considered in deciding the motion to remand.
Defendants have also filed three letters identifying supplemental authorities in support of their opposition to the motion to remand in accordance with D. Kan. Rule 7.1(f). Docs. 54, 57, 59. The supplemental authorities have also been considered in deciding the motion to remand.
B. For purposes of federal-question jurisdiction, the general rule is that a plaintiff‘s complaint dictates whether state or federal law is invoked.
Plaintiff first argues that removal was not proper because the petition does not present a federal question. Defendants removed this case to federal court on grounds that Plaintiff‘s state-court petition asserts a claim “arising under” federal law, within the meaning of
In the absence of diversity, federal courts have jurisdiction over civil actions “arising under the Constitution, laws, or treaties of the United States.” See
Here, Plaintiff has alleged a negligence and wrongful-death claim under state law. Under the well-pleaded complaint rule, then, there is no federal-question jurisdiction unless Defendants can establish subject-matter jurisdiction under an exception to the well-pleaded complaint rule.
Defendants’ response to the motion to remand suggests that federal jurisdiction can be found in two ways. Both depend on the PREP Act applying to this case. First, Defendants argue that the doctrine of complete preemption applies, as it operates through the PREP Act. Second, Defendants argue that the PREP Act presents an embedded federal question under the standard in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005).4 Because these arguments all turn on the applicability of the PREP Act in this case, the Court must first explore that statute and determine whether it applies to Plaintiff‘s claims and, if so, then determine whether either exception to the well-pleaded complaint rules supports removal in this case.
1. The PREP Act applies to the administration or use of covered countermeasures.
The parties disagree on the scope of the PREP Act and whether it applies here. In determining whether a statute applies, the first step is to look at the statute‘s “plain and unambiguous meaning.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). If the language is unambiguous, the analysis stops. Id. “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341.
The PREP Act is invoked when the Secretary issues a declaration determining—for purposes of the PREP Act—that a disease or other health condition constitutes a public health emergency.
The Secretary has issued such a declaration regarding the COVID-19 pandemic. 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“). The Declaration has been amended six times. Primarily relevant
Once the Secretary has issued a declaration, the PREP Act provides sweeping immunity for certain claims against certain covered individuals: “a covered person5 shall be immune from suit and liability under Federal and State law 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 . . . .”
applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.
A “covered countermeasure” under the PREP Act is, simplified, a drug, biological product, or device that is a “qualified pandemic or epidemic product”6 or a “security countermeasure,”7 or is authorized for emergency use under the Federal Food, Drug, and Cosmetic Act.
- 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:
- To diagnose, mitigate, prevent, treat, or cure COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom; or
- to limit the harm that COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, might otherwise cause;
- 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;
- a product or technology intended to enhance the use or effect of a product described in paragraph (a) or (b) above; or
- any device used in the administration of any such product, and all components and constituent materials of any such product.
Fourth Amendment, 85 Fed. Reg. at 79,196. But regardless, any countermeasure must still meet the definition of “covered
“Administration” and “use” are not defined in the PREP Act. But the Secretary‘s Declaration states that “administration” of covered countermeasures “means physical provision of the countermeasures to recipients, or 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 purpose of distributing and dispensing countermeasures.” Declaration, 85 Fed. Reg. at 15,202. The Fourth Amendment has stated 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-62.” Fourth Amendment, 85 Fed. Reg. at 79,197.
There are two exceptions to the PREP Act‘s immunity provision. The PREP Act permits “an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct . . . .”
The PREP Act preempts state laws that create different standards regarding covered countermeasures:
During the effective period of a declaration under subsection (b), or at any time with respect to conduct undertaken in accordance with such declaration, no State or political subdivision of a State may establish, enforce, or continue in effect with respect to a covered countermeasure any provision of law or legal requirement that—
- is different from, or is in conflict with, any requirement applicable under this section; and
- relates to the design, development, clinical testing or investigation, formulation, manufacture, distribution, sale, donation, purchase, marketing, promotion, packaging, labeling, licensing, use, any other aspect of safety or efficacy, or the prescribing, dispensing, or administration by qualified persons of the covered countermeasure, or to any matter included in a requirement applicable to the covered countermeasure under this section or any other provision of this chapter, or under the Federal Food, Drug, and Cosmetic Act.
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, products, or devices. Exceptions to immunity exist for claims proximately caused by willful misconduct, but suit must be brought in the United States District
2. Plaintiff‘s claims do not fall under the PREP Act, and thus the doctrine of complete preemption, to the extent it exists under the PREP Act, does not permit removal.
a. Complete preemption is a rare corollary to the well-pleaded complaint rule.
Defendants argue that this Court has subject-matter jurisdiction sufficient to allow removal under the PREP Act and the doctrine of complete preemption. The doctrine of complete preemption is an exception or corollary to the well-pleaded complaint rule. See Devon Energy Prod., 693 F.3d at 1204. “Complete preemption is a rare doctrine” that has only been recognized in a handful of areas. Id. at 1204-05 (quoting Cmty. State Bank v. Strong, 651 F.3d 1241, 1260 n. 16 (11th Cir. 2011)). It is not to be lightly invoked. Devon Energy Prod., 693 F.3d at 1205; Connolly v. Union Pac. R.R. Co., 453 F. Supp. 2d 1104, 1109 (E.D. Mo. 2006) (“Courts have cautioned against an expansive application of the exception . . . .“). Complete preemption is not so much a statement of the breadth of a statute‘s preemptive power, “but rather as a description of the specific situation in which a federal law not only preempts a state law to some degree but also substitutes a federal cause of action for the state cause of action, thereby manifesting Congress‘s intent to permit removal.” Devon Energy Prod., 693 F.3d at 1205 (quoting Schmeling v. NORDAM, 97 F.3d 1336, 1342 (10th Cir. 1996)).
Importantly, “complete preemption” is not the same thing as “ordinary preemption.” See Dutcher, 733 F.3d at 986. Complete preemption is a jurisdictional concept, while ordinary preemption is a defense to liability. See Devon Energy Prod., 693 F.3d at 1203 n.4; Christensen, 242 F. Supp. 3d at 1190; see also Schmeling, 97 F.3d at 1342. Ordinary preemption, which can take the form of express, conflict, or field preemption, is generally an affirmative defense that state law has in some way been displaced by federal law. Devon Energy Prod., 693 F.3d at 1203 n.4. But an ordinary-preemption defense does not make a complaint removable to federal court. See Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1221 (10th Cir. 2011); Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 272-73 (2d Cir. 2005) (“Many federal statutes—far more than support complete preemption—will support a defendant‘s argument that because federal law preempts state law, the defendant cannot be held liable under state law.“). This is true though often a point of confusion—no matter how complete the ordinary-preemption defense is.
By contrast, complete preemption—a jurisdictional doctrine—is said to make what is ostensibly “a state-law claim purely a creature of federal law, and thus removable from state to federal court from the outset.” Hansen, 641 F.3d at 1221 (internal quotations and citations omitted). The distinction is important. “That is, a state cause of action may not be viable because it is preempted by a federal law—but only if federal law provides its own cause of action does the case raise a federal question that can be heard in federal court.” Dutcher, 733 F.3d at 986; see also Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99 (1987). In other words, just because a federal statute provides a sound preemption
In determining whether to apply the doctrine of complete preemption, the Court asks two questions. Does a federal provision preempt the state law relied on by the plaintiff? And has Congress created an exclusive federal cause of action meant to displace all state claims, such that the claim is removable? Devon Energy Prod., 693 F.3d at 1205; see also Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 9 n.5 (2003) (stating that “the proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive rather than on whether Congress intended that the cause of action be removable“).
Importantly, and perhaps obviously, the claims at issue must fall within the scope of the relevant federal statute for complete preemption to apply. See Beneficial Nat. Bank, 539 U.S. at 8 (“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.“); Sullivan, 424 F.3d at 272 (“Under the complete-preemption doctrine, certain federal statutes are construed to have such ‘extraordinary’ preemptive force that state-law claims coming within the scope of the federal statute are transformed, for jurisdictional purposes, into federal claims—i.e., completely preempted.“). Accordingly, to avoid remand, Defendants must show that Plaintiff‘s allegations fall within the scope of the PREP Act.
b. Plaintiff‘s claims do not fall under the PREP Act.
Plaintiff argues that the PREP Act is not implicated in this case, and thus the doctrine of complete preemption cannot provide a path to jurisdiction and this case must be remanded. In a series of earlier cases arising out of COVID-19 deaths at the same facility, which involved essentially the same defendants and had state-court petitions substantively like the petition in this case, the Court granted a motion to remand. See, e.g., Jackson v. Big Blue Healthcare, Inc., 2020 WL 4815099, at *8 (D. Kan. 2020).9 In those cases, the
were premised on a failure to take preventative measures to stop the spread of COVID-19, and that none of the harm alleged was causally connected to the administration or use of any covered countermeasure—the focus of the PREP Act. See, e.g., id. at *6. Because the decedent‘s death was not caused by the administration or use of covered countermeasures, the PREP Act did not apply to those plaintiffs’ claims. This was based on the plain language of the PREP Act and the very few cases to have addressed it at the time. See, e.g., id. at *6-8.
Since those orders were issued, the Court has identified at least 13 other cases that have reached similar conclusions. See Lyons v. Cucumber Holdings, LLC, 2021 WL 364640 (C.D. Cal. 2021); Dupervil, 2021 WL 355137; Goldblatt v. HCP Prairie Village KS OPCO LLC, 2021 WL 308158 (D. Kan. 2021); Anson v. HCP Prairie Village KS OPCO LLC, 2021 WL 308156 (D. Kan. 2021); Grohmann v. HCP Prairie Village KS OPCO LLC, 2021 WL 308550 (D. Kan. 2021);10 Estate of Smith v. Bristol at Tampa Rehab. & Nursing Ctr., LLC, 2021 WL 100376 (M.D. Fla. 2021); Parker v. St. Jude Operating Co., LLC, 2020 WL 8362407 (D. Or. 2020); Gunter v. CCRC Opco-Freedom Square, LLC, 2020 WL 8461513 (M.D. Fla. 2020); Sherod v. Comprehensive Healthcare Mgmt. Servs., LLC, 2020 WL 6140474 (W.D. Pa. 2020);11 Saldana v. Glenhaven Healthcare LLC, 2020 WL 6713995 (C.D. Cal. 2020); Estate of Jones v. St. Jude Operating Co., LLC, 2020 WL 8361924 (D. Or. 2020); Martin v. Serrano Post Acute LLC, 2020 WL 5422949 (C.D. Cal. 2020); Haro v. Kaiser Found. Hosps., 2020 WL 5291014 (C.D. Cal. 2020).12
Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F. Supp. 3d 518 (D.N.J. 2020), which was issued shortly before this Court‘s rulings in the earlier Big Blue Healthcare cases and cited therein, reached a similar conclusion as well. The Court also notes Hatcher v. HCP Prairie Village KS OPCO LLC, No. 20-2374-SAC (D. Kan. Jan. 27, 2021). Hatcher is a diversity case, but the court denied a motion to dismiss based on a claimed PREP Act immunity, finding that the PREP Act did not apply to the plaintiff‘s claims.
The general consensus of this Court‘s prior holdings, as well as the holding in these other cases, was that the plaintiffs’ allegations did not fall within the scope of
c. Plaintiff‘s claims do not involve prioritization or purposeful allocation of covered countermeasures as contemplated by the Fourth Amendment.
Defendants argue in response to the motion to remand that the Fourth Amendment, which was not issued until December 2020, clarifies that an omission or failure to act can be covered by the PREP Act in certain circumstances. The Fourth Amendment reiterated that administration of covered countermeasures “means physical provision of the countermeasures to recipients, or 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“—essentially the same definition set forth in the original declaration. See Fourth Amendment, 85 Fed. Reg. at 79, 97; see also Jackson, 2020 WL 4815099, at *5 (quoting Declaration, 85 Fed. Reg. at 15,202). But the Fourth Amendment further asserted 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 ‘related to . . . the administration to . . . an individual’ under [the PREP Act].” Fourth Amendment, 85 Fed. Reg. at 79,197. Specifically, where supplies are limited and a decision has to be made how to use it or who to administer it to, “[p]rioritization or purposeful allocation of a Covered Countermeasure, particularly if done in accordance with a public health authority‘s directive, can fall within the PREP Act and this Declaration‘s liability protections.” Id.13 Defendants rely on this language in support of their position that the PREP Act does apply to inaction or a failure to administer covered countermeasures, as alleged here.14
Even accepting this interpretation of the PREP Act,15 the Court finds this does not
non-administration of covered countermeasures linked to the use or administration of that countermeasure to another person instead. See Lyons, 2021 WL 364640, at *4 (“Although the HHS Secretary‘s December 3, 2020 Amendment makes clear that an ‘inaction claim’ is not necessarily beyond the scope of the PREP Act, such claims only fall under the scope of the PREP Act where: (1) there are limited covered countermeasures; and (2) there was a failure to administer a covered countermeasure to one individual because it was administered to another individual.“).
Other courts that have considered this interpretation of the PREP Act have come to a similar conclusion. See Grohmann, 2021 WL 308550, at *9-10 (“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.“); Hatcher, No. 20-2374-SAC, slip op. at 15 (D. Kan. Jan. 27, 2021) (“Plaintiffs’ allegations do not appear to claim that decedent‘s death was caused by a decision to ration a covered product or allocate a covered countermeasure to some but not others.“); Lyons, 2021 WL 364640, at *5 (“Indeed, even assuming that Plaintiff‘s allegations could be construed as alleging the administration of covered countermeasures, she does not allege that Decedent‘s death resulted from Defendants’ decisions to administer those covered countermeasures to other individuals.“); Dupervil, 2021 WL 355137, at *12 (“[T]he crux of Plaintiff‘s claims is that his father died because Defendants failed to take certain steps. . . . These alleged failures cannot be said to be administering—or even prioritizing or purposefully allocating a drug, biological product, or device to an individual within the meaning of the PREP Act such that Plaintiffs’ claims are completely preempted.“). Accordingly, the Fourth Amendment does not alter the Court‘s conclusion that the PREP Act does not apply to Plaintiff‘s claims.
d. Defendants’ other arguments do not demonstrate that the PREP Act applies.
Defendants raise some other arguments in support of their contention that the PREP Act applies. Specifically, they argue that Plaintiff‘s allegations do not support a “failure to act” theory because at least some of the allegations reference affirmative action. For example, they point to allegations that Defendants say allege an “ineffective” use of covered countermeasures, which Defendants argue necessarily involves “affirmative action” that relates to the “use or administration of covered countermeasures, falling squarely within the PREP Act.” Related to this is Defendants’ argument that Plaintiff‘s petition also implicates the use of covered countermeasures, including PPE, diagnostic testing, and infection control programs. Similar arguments were made against nearly identical allegations and rejected in this Court‘s earlier rulings. See, e.g., Jackson, 2020 WL 4815099, at *7-8 (noting that the petition “says almost nothing about any interventions—drugs,
Defendants also argue that “administration” under the PREP Act is not limited to physically providing a countermeasure but also covers “activities and decisions directly relating to public and private delivery, distribution and dispensing of the countermeasures to recipients” and the “management and operation of countermeasure programs, or management and operation of locations for purpose of distributing and dispensing countermeasures.” Declaration, 85 Fed. Reg. at 15,202. Defendants contend this extends the PREP Act to “all manner of decisions” regarding
the use of countermeasures. This argument was likewise rejected in the earlier cases. See, e.g., Jackson, 2020 WL 4815099, at *7 (rejecting an argument that the plaintiff‘s allegations were “inextricably intertwined” with the management and operation of the facility, and rejecting the notion that “using covered countermeasures somewhere in the facility is sufficient to invoke the PREP Act as to all claims that arise in that facility” (emphasis in original)). As the Court previously stated, the PREP Act still requires a causal connection between the injury and the use or administration of covered countermeasures, and that link is not present here.16
e. Defendants’ supplemental authorities do not counsel a different outcome.
As noted above, Defendants have submitted some supplemental authorities in opposition to the motion to remand. See Docs. 54, 57, and 59. The Court has considered these authorities but does not find that they warrant a different outcome.
First, regarding the “Statement of Interest of the United States” filed in Bolton v. Gallatin Center for Rehabilitation & Healthcare, No. 3:20-cv-00683 (M.D. Tenn.), the Court finds that it largely focuses on whether the PREP Act is a complete-preemption statute. Specifically, it notes that cases with “claims relating to the administration or use of covered countermeasures” are removable. Doc. 54-1 at 1. But, in this case, the Court finds Plaintiff‘s claims do not relate to the administration or use of covered countermeasures. Accordingly, this Statement of Interest lacks relevance to this order.
The Court has also considered the recent decision denying remand in Garcia v. Welltower OpCo Group LLC, 2021 WL 492581 (C.D. Cal. 2021). This appears to be the only federal court
decision declining to remand this similar line of cases back to state court. The court there found that the plaintiff‘s allegations include the “use and misuse of PPE” and detailed “infection control measures and procedures including symptom checking, staff monitoring and screening, and limiting visitation.” Id. at *8. Although the exact nature of the allegations
Accordingly, the Court finds the PREP Act inapplicable to Plaintiff‘s claims because they do not allege an injury caused by the administration or use—or prioritization or purposeful allocation—of a covered countermeasure. Because the PREP Act does not apply, it cannot be used to establish federal question jurisdiction under the doctrine of complete preemption.18
3. Plaintiff‘s claim does not present an embedded federal question under Grable.
Defendants also argue that removal is proper under the embedded-federal-question test in Grable. This is also sometimes called the “substantial question” test. See Becker v. Ute Indian Tribe of the Uintah & Ouray Rsrv., 770 F.3d 944, 947 (10th Cir. 2014). This test applies when a claim is pleaded under state law but invokes a substantial federal question such that the ostensible state-law claim can be considered to arise under federal law for jurisdictional purposes. See id. Under this test, “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed,
The mere fact that a federal issue may be implicated is not enough. Becker, 770 F.3d at 947. The federal question must be an essential element of a plaintiff‘s claim. Gilmore, 694 F.3d at 1173. Nor can the doctrine apply based solely on a federal defense. Becker, 770 F.3d at 947; see also Grable, 545 U.S. at 312 (stating “that in certain cases federal-question jurisdiction will lie over state-law claims that implicate significant federal issues” (emphasis added)).
As discussed above, the Court has determined that Plaintiff‘s claims do not fall under the PREP Act. Thus, Plaintiff‘s claims do not turn on an interpretation or application of the PREP Act. Compare Grable, 545 U.S. at 314-15 (finding federal jurisdiction where the plaintiff‘s superior-title action was premised on inadequate notice of the seizure by the IRS under federal law). Nor is the PREP Act an essential element of Plaintiff‘s claim. See Gilmore, 694 F.3d at 1173; see also Dupervil, 2021 WL 355137, at *14. Given this, there is no basis to conclude that Plaintiff‘s claim contains an embedded federal question sufficient to justify removal to federal court as an exception to the well-pleaded complaint rule. To be certain, Defendants intend to assert the PREP Act as a defense to Plaintiff‘s claim. But that is not enough. Devon Energy Prod., 693 F.3d at 1210-12 (stating that Grable requires that the federal question be a necessary element of a plaintiff‘s claim, and the possibility that it will be raised as a defense is not sufficient); see also Lyons, 2021 WL 364640, at *6 (rejecting the existence of an embedded federal question because “the federal issue raised relates to Defendants’ defense, not the claims alleged by Plaintiff“); Dupervil, 2021 WL 355137, at *14 (same).
The Court acknowledges the statement in the Fourth Amendment 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 among federal, state, local, and private-sector entities,” and “in having a uniform interpretation of the PREP Act.” Fourth Amendment, 85 Fed. Reg. at 79,194. But the significance of the COVID-19 pandemic and the importance of uniform interpretation of the PREP Act does not create federal subject-matter jurisdiction.19
D. Defendants have not demonstrated that a hearing is necessary.
Defendants have alternatively requested that the Court permit “jurisdictional discovery” or conduct a “jurisdictional
is not convinced that a hearing would substantially assist the Court in deciding the motion to remand.
IV. CONCLUSION
THE COURT THEREFORE ORDERS that Plaintiff‘s Motions for Remand (Doc. 33 and Doc. 49) are GRANTED. This case is REMANDED to the District Court of Wyandotte County, Kansas.20 The Court directs the Clerk of Court to take all necessary steps to effectuate this remand.
THE COURT FURTHER ORDERS that Defendants’ Motion for Leave to File a Surreply (Doc. 53) is GRANTED. The surreply (Doc. 53-1) is deemed filed and has been considered by the Court in this order, as have the supplemental authorities.
IT IS SO ORDERED.
Dated: February 26, 2021
/s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE