Emma Martin v. Marcel Solero Filart

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2022
• Docket: 20-56067
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EMMA MARTIN, individually and as heir No. 20-56067 of Vincent Paul Martin, deceased; ELIZABETH GAGLIANO, individually and D.C. No. as heir of Vincent Paul Martin, deceased; 2:20-cv-05937-DSF-SK KATHRYN SESSINGHAUS, individually and as heir of Vincent Paul Martin, deceased, MEMORANDUM* Plaintiffs-Appellees,

v.

MARCEL ADRIAN SOLERO FILART,

Defendant-Appellant,

and

SERRANO POST ACUTE LLC, DBA Hollywood Premier Healthcare Center, AKA Serrano Healthcare, AKA Serrano North Convalescent Hospital; BENJAMIN LANDA,

Defendants.

EMMA MARTIN, individually and as heir No. 20-56078 of Vincent Paul Martin, deceased; ELIZABETH GAGLIANO, individually and D.C. No. as heir of Vincent Paul Martin, deceased; 2:20-cv-05937-DSF-SK

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. KATHRYN SESSINGHAUS, individually and as heir of Vincent Paul Martin, deceased,

Plaintiffs-Appellees,

SERRANO POST ACUTE LLC, DBA Hollywood Premier Healthcare Center, AKA Serrano Healthcare, AKA Serrano North Convalescent Hospital; BENJAMIN LANDA, an individual,

Defendants-Appellants,

Defendant.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted October 21, 2021 Pasadena, California

Before: R. NELSON and VANDYKE, Circuit Judges, and SCHREIER,** District Judge.

Marcel Adrian Solero Filart, Serrano Post Acute LLC, and Benjamin Landa

(collectively, Serrano) appeal the district court’s order remanding this case to state

** The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation.

2 court for lack of federal subject matter jurisdiction. Serrano argues that the district

court has three independent grounds for federal jurisdiction: federal officer

removal, complete preemption of state law, and the presence of an imbedded

federal question. We agree with the district court and affirm.1

Questions of statutory construction and subject matter jurisdiction are

reviewed de novo. City of Oakland v. BP PLC, 969 F.3d 895, 903 (9th Cir. 2020).

When the federal officer removal statute, 28 U.S.C. § 1442, is one ground for

removal, § 1447(d) permits appellate review of a district court’s entire remand

order. BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1538

(2021).

The district court correctly found that it did not have jurisdiction under the

federal officer removal statute, because Serrano’s actions were not “taken pursuant

to a federal officer’s directions[.]” Saldana v. Glenhaven Healthcare LLC, --- F.4th

---, 2022 WL 518989 at *4 (9th Cir. 2022) (citing Stirling v. Minasian, 955 F.3d

795, 800 (9th Cir. 2020)). Serrano has demonstrated that it was subject to federal

laws and regulations throughout the COVID-19 pandemic. “But ‘simply

complying’ with a law or regulation is not enough to ‘bring a private person within

the scope of the [federal officer removal] statute.’” See Saldana, 2022 WL 518989,

1 We also grant the pending motions for judicial notice. Dockets 25 & 31 in Case No. 20-56067; Dockets 26 & 32 in Case No. 20-56078.

3 at *3 (quoting Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 152 (2007)).

Similarly, recommendations, advice, and encouragement from federal entities do

not amount to the type of control required for removal under the statute. See id.

(citing Watson, 551 U.S. at 153). Thus, we affirm the remand order for lack of

subject matter jurisdiction under 28 U.S.C. § 1442.

Complete preemption also does not provide subject matter jurisdiction. The

complaint states causes of action for elder abuse and neglect, negligence, wrongful

death, fraudulent concealment, and fraudulent misrepresentation. Under the Public

Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. §§ 247d-6d, 247d-

6e, Congress did not intend to displace the state-law causes of action in the

complaint, and Congress did not provide a substitute cause of action. See Saldana,

2022 WL 518989, at *5 (citing City of Oakland, 969 F.3d at 906). The PREP Act

itself is not one of those “rare” statutes “where a federal statutory scheme is so

comprehensive that it entirely supplants state law causes of action.” See Saldana,

2022 WL 518989, at *4 (quoting Retail Prop. Tr. v. United Bhd. of Carpenters &

Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014)). Thus, complete preemption

under the PREP Act is not a basis for federal subject matter jurisdiction.

The causes of action in the complaint do not necessarily raise substantial

federal issues that are “actually disputed” and “capable of resolution in federal

court without disrupting the federal-state balance approved by Congress.” See

4 Saldana, 2022 WL 518989, *6 (citing Gunn v. Minton, 568 U.S. 251, 258 (2013)).

Thus, the complaint does not raise an imbedded federal question that would invoke

a federal court’s subject matter jurisdiction.

AFFIRMED.