Michael Lawler v. Cedar Operations, LLC

• Court: District Court, C.D. California
• Decided: October 7, 2021
• Docket: 5:21-cv-01017
• Status: Unknown

Opinion

1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 ) 12 ) Case No.: EDCV 21-01017-CJC(SHKx) ) 13 MICHAEL LAWLER, Individually and ) ) 14 as Heir and Successor in Interest to ) BILL LAWLER, Deceased, ) 15 ) ORDER GRANTING PLAINTIFF’S ) MOTION TO REMAND [Dkt. 10] 16 Plaintiff, ) ) 17 v. ) ) 18 ) CEDAR OPERATIONS, LLC d/b/a ) 19 CEDAR MOUNTAIN POST ACUTE, ) ) 20 ) ) Defendant. 21 ) ) 22 ) ) 23 ) ) 24 25 26

27 1 I. INTRODUCTION 2 3 On February 4, 2021, Plaintiff Michael Lawler filed an action in San Bernardino 4 County Superior Court on his own behalf and on behalf of his deceased father, Bill 5 Lawler (the “Deceased”), against Defendant Cedar Operations, LLC, alleging violations 6 of California’s Elder and Dependent Adult Civil Protection Act, negligence, and 7 wrongful death. (See Dkt. 4-1 [Complaint, hereinafter “Compl.”].) The Deceased 8 contracted COVID-19 at one of Defendant’s skilled nursing facilities, Cedar Mountain 9 Post Acute (“Cedar Mountain”), and passed away. (See id.) Defendant removed the 10 action to this Court on June 17, 2021. (Dkt. 1 [Notice of Removal].) Defendant argues 11 that removal is appropriate pursuant to the Public Readiness and Emergency 12 Preparedness Act (the “PREP Act”) under the doctrine of complete preemption. (Dkt. 12 13 [Defendant’s Opposition to Motion to Remand, hereinafter “Opp.”].) Defendant 14 additionally argues that removal is appropriate under the Grable doctrine and 28 U.S.C. 15 § 1442(a)(1). Before the Court is Plaintiff’s motion to remand the action back to state 16 court. (Dkt. 10 [Motion to Remand, hereinafter “Mot.”].) For the following reasons, 17 Plaintiff’s motion is GRANTED.1 18 19 II. BACKGROUND 20 21 On January 1, 2020, the Deceased was admitted to Cedar Mountain for therapy and 22 rehabilitation. (Compl. ¶¶ 11-12, 19.) At the time of his admission, the Deceased was 56 23 years old and had several medical and mental issues that prevented him from carrying out 24 normal daily activities. (See id. ¶ 9.) Defendant knew that the Deceased was in a 25 26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 1 compromised physical and mental state, depended on Cedar Mountain staff for everyday 2 activities, and required close monitoring to ensure his wellbeing. (Id. ¶¶ 17-18.) 3 4 At some point after January 1, 2020, the Deceased was discharged from Cedar 5 Mountain so that he could receive treatment for his kidneys at a hospital. (Id. ¶ 19.) He 6 was readmitted to Cedar Mountain on March 18, 2020. (Id.) Plaintiff alleges that prior 7 to the Deceased’s return, there was a COVID-19 outbreak within Cedar Mountain. (Id. 8 ¶ 2.) Plaintiff alleges that Defendant knew of the outbreak but failed to alert the 9 Deceased or his family to the same prior to readmitting him. (Id. ¶¶ 2, 22a-b.) As a 10 result, the Deceased contracted COVID-19. (Id. ¶ 22.) Plaintiff further alleges that 11 because Cedar Mountain staff were afraid of contracting COVID-19 from the Deceased, 12 they did not provide the Deceased with a much-needed dialysis treatment on April 3, 13 2020. (Id. ¶ 23.) The Deceased passed away “from COVID-19 ailments” on April 5, 14 2020. (Id. ¶ 22.) 15 16 III. LEGAL STANDARD 17 18 Federal courts have subject matter jurisdiction only over matters authorized by the 19 Constitution and Congress. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 20 (1994). A suit filed in state court may be removed to federal court if the federal court 21 would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). A removed 22 action must be remanded to state court if the federal court lacks subject matter 23 jurisdiction. 28 U.S.C. § 1447(c). “The burden of establishing federal jurisdiction is on 24 the party seeking removal, and the removal statute is strictly construed against removal 25 jurisdiction.” Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). 26 “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in 27 the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 1 IV. DISCUSSION 2 3 In his motion to remand, Plaintiff argues that the Court lacks subject matter 4 jurisdiction over his state law claims. (See Mot.) Defendant rebuts that: (1) all of 5 Plaintiff’s claims are completely preempted by the PREP Act, which provides a basis for 6 federal question jurisdiction, (2) the Grable doctrine provides a second ground for federal 7 question jurisdiction, and (3) removal is appropriate under 28 U.S.C. § 1442(a)(1), which 8 applies when the removing defendant acts at the direction of a federal officer. 9 10 Defendant is one in a long line of defendants who have attempted to remove state 11 law claims arising out of COVID-19 related injuries using the same arguments as 12 Defendant presents here. This Court joins the chorus of courts who have remanded such 13 cases when presented with similar facts and arguments as those in the present action.2 14 The Court addresses each of Defendant’s three arguments in turn below.3 15

16 2 See Acra v. California Magnolia Convalescent Hospital, Inc., 2021 WL 2769041 (C.D. Cal., July 1, 2021); Harry Forman v. C.P.C.H., 2021 WL 2209308 (C.D. Cal. June 1, 2021); Moody v. Lake Worth 17 Investments, Inc., No. 4:21-cv-00160-O, Dkt. 18 (N.D. Tex. May 26, 2021); Lopez v. Greenfield Care Center of South Gate, LLC, No. 2:21-cv-02806-RGK-PVC, Dkt. 25 (C.D. Cal May 19, 2021); Bolton v. 18 Gallatin Center for Rehab. & Healing, LLC, 2021 WL 1561306 (M.D.Tenn. April 21, 2021); Hopman v. Sunrise Villa Culver City, 2021 WL 1529964 (C.D. Cal. April 16, 2021); Winn v. California Post Acute, 19 2021 WL 1292507 (C.D. Cal. Apr. 6, 2021); Mitchell v. Advanced HCS, LLC, 2021 WL 1247884 (N.D. 20 Tex, April 5, 2021); Lopez v. Advanced HCS, LLC, 2021 WL 1259302 (N.D. Tex, April 5, 2021); Schuster v. Percheron Healthcare, Inc., 2021 WL 1222149 (N.D. Tex. April 1, 2021); Stone v. Long 21 Beach Healthcare Center, 2021 WL 1163572 (C.D. Cal. Mar. 26, 2021); Smith v. Colonial Care Center, Inc., 2021 WL 1087284 (C.D. Cal. March 19, 2021); Estate of McCalebb, v. AG Lynwood, LLC, 2021 22 WL 911951 (C.D. Cal. Mar. 1, 2021); Roberston v. Big Blue Healthcare, Inc., 2021 WL 764566 (D. Kan Feb. 26, 2021); Estate of Jones through Brown v. St. Jude Operating Company, LLC, 2021 WL 23 900672 (D. Or. Feb. 16, 2021) report and recommendation adopted by 2021 WL 1087284 WL 886217 24 (D. Or. Mar 8, 2021); Dupervil v. Alliance Health Operations, LCC, 2021 WL 355137 (E.D.N.Y. Feb. 2, 2021). 25 3 The Court denies Defendant’s request for jurisdictional discovery. The decision to permit or deny jurisdictional discovery lies in the Court’s discretion. Orchid Biosciences, Inc. v. St. Louis Univ., 198 26 F.R.D. 670, 673 (S.D. Cal. 2001). A district court does not abuse its discretion when a request for 27 jurisdictional discovery is “based on little more than a hunch that it might yield jurisdictionally relevant facts.” Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008). Defendant has not provided even a 1 A. Complete Preemption Pursuant to PREP Act 2 3 1. The Complete Preemption Doctrine 4 5 Ordinarily, federal preemption of state law claims is raised as a federal defense, 6 which is not a legitimate basis for removal. See Caterpillar v. Williams, 482 U.S. 386, 7 392-93 (1987). However, when state law claims are completely preempted by a federal 8 statute, they may be “recharacterized” as federal claims and removed to federal court. 9 See Vaden v. Discover Bank, 556 U.S. 49, 61 (2009); Beneficial Nat'l Bank v. Anderson, 10 539 U.S. 1, 8 (2003). The Ninth Circuit has held that “complete preemption for purposes 11 of federal jurisdiction under Section 1331 exists when Congress: (1) intended to displace 12 a state-law cause of action, and (2) provided a substitute cause of action.” City of 13 Oakland v. BP PLC, 969 F.3d 895, 906 (9th Cir. 2020) (internal citation omitted). 14 “[C]omplete preemption is rare.” Hansen v. Group Health Cooperative, 902 F.3d 1051, 15 1057 (9th Cir. 2018.) The Supreme Court has found complete preemption applicable to 16 only three federal statutes. See City of Oakland, 969 F.3d at 905 (noting that complete 17 preemption applies only to § 301 of the Labor Management Relations Act, 29 U.S.C. 18 § 185, § 502(a) of the Employee Retirement Income Security Act of 1974, and §§ 85 and 19 86 of the National Bank Act). 20 21 \\ 22 \\ 23 24

25 The Court further denies Defendant’s request to issue a temporary stay on remand. Whether Defendant is entitled to a stay pending appeal depends on “(1) whether the stay applicant has made a strong 26 showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured 27 absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (internal 1 2. The PREP Act 2 3 The PREP Act authorizes the Secretary of Health and Human Services (“HHS”) to 4 issue a declaration determining that “a disease or other health condition or other threat to 5 health constitutes a public health emergency.” 42 U.S.C. § 247d-6d(b). The PREP Act 6 immunizes from suit certain “covered persons” with respect to claims “caused by, arising 7 out of, relating to, or resulting from the administration to or the use by an individual of a 8 covered countermeasure if a declaration [by the Secretary of Health and Human Services] 9 has been issued with respect to such countermeasure.” 42 U.S.C. § 247d-6d(a)(1). 10 Under the PREP Act, a covered countermeasure refers to drugs, biological products, or 11 devices that are designed to diagnose, mitigate, prevent, or treat harm stemming from the 12 public health emergency. 42 U.S.C. § 247d-6d(i)(1), (7). When the PREP Act applies, 13 plaintiffs are relegated to recovery through the Countermeasures Injury Compensation 14 Program—a regulatory program providing reimbursement for losses associated with the 15 use or administration of covered countermeasures. 42 U.S.C. § 247d-6(e). Only where 16 the plaintiff alleges willful misconduct may the plaintiff file a civil action, and such 17 actions must be filed in the District of Columbia. 42 U.S.C. § 247d-6d(c), (d). 18 19 On March 10, 2020, the HHS Secretary (the “Secretary”) declared the COVID-19 20 pandemic a public health emergency under the PREP Act. 85 Fed. Reg. 15198. In the 21 declaration, the Secretary defined “covered countermeasures” as: “any antiviral, any 22 other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, 23 diagnose, cure, prevent, or mitigate COVID-19…or any device used in the administration 24 of any such product, and all components and constituent materials of any such product.” 25 Id. at 15202. On December 3, 2020, the Secretary amended his March 2020 declaration 26 for a fourth time (hereinafter “FAD”), in part to provide an explanation of what is meant 27 by “administration of covered countermeasures.” 85 Fed. Reg. 79190. The Secretary 1 recipients, or activities and decisions relating to public and private delivery, distribution, 2 and dispensing of the countermeasures to recipients, management and operation of 3 countermeasure programs, or management and operation of locations for purpose of 4 distributing and dispensing countermeasures.” Id. at 79197. The Secretary also noted 5 that cases of inaction are not necessarily beyond the PREP Act’s scope. Id. Specifically, 6 the Secretary explained that non-administration of a covered countermeasure could fall 7 under the PREP Act when the covered countermeasure was not administered to one 8 individual because it was scarce and administered instead to another individual. See id. 9 The Secretary concluded that “[p]rioritization or purposeful allocation of a Covered 10 Countermeasure…can fall within the PREP Act and this Declaration’s liability 11 protections.” Id. 12 13 3. Plaintiff’s Claims Do Not Fall Within the Scope of the PREP ACT 14 15 Plaintiff has only alleged inaction in his complaint, and not the type of inaction the 16 Secretary identified as falling within the scope of the PREP Act. Before complete 17 preemption can apply to a plaintiff’s state law claims, the claims at issue must fall within 18 the scope of the relevant federal statute. See Stone v. Long Beach Healthcare Center, 19 LLC, 2021 WL 1163572, at *4-5 (C.D. Cal. Mar. 26, 2021); Smith v. Colonial Care 20 Center, Inc., 2021 WL 1087284, at *4 (C.D. Cal. Mar. 19, 2021). Surely, failing to 21 inform the Deceased or his family of a COVID-19 outbreak at Cedar Mountain before 22 readmitting the Deceased to the facility has nothing to do with the administration of 23 covered countermeasures. See, e.g., Hopman v. Sunrise Villa Culver City, 2021 WL 24 1529964, at *4-6 (remanding when plaintiff alleged failure to isolate patients and failure 25 to notify decedent’s spouse of decedent’s move to a shared room); (see also Compl. 26 ¶ 22a-b.) The same goes for Defendant’s alleged failure to enforce social distancing, 27 cancel group activities, restrict visitation, and ensure adequate staff. (See Compl. 1 ¶ 22c-f.) These failures to act do not implicate the use or nonuse of drugs, biological 2 products, or medical devices. 3 4 Defendant seizes on Plaintiff’s allegation that Cedar Mountain failed to properly 5 implement and maintain a proper infection prevention and control program, actively 6 screen staff for fever or symptoms, and monitor the Decedent for changes in his health. 7 (Opp. at 16.) Though Plaintiff’s complaint never mentions a covered countermeasure 8 explicitly, Defendant argues that these allegations “by their very nature relate to use of 9 covered countermeasures.” (Id.) This has become a common refrain from defendants 10 seeking to remove COVID-related actions to federal court, and courts within this district 11 have routinely rejected the argument when faced with similar allegations. See Stone, 12 2021 WL 1163572 at *4-5; Smith, 2021 WL 1087284 at *4-6; Winn v. California Post 13 Acute LLC, 2021 WL 1292507, at *3 (C.D. Cal. Apr. 6, 2021); Estate of McCalebb v. AG 14 Lynwood, LLC, 2021 WL 911951, at *5 (C.D. Cal. Mar. 1, 2021). 15 16 McCalebb is particularly instructive on this point and involves several allegations 17 that are markedly similar to those at issue in the present action. In McCalebb, the court 18 addressed allegations that the defendant failed to isolate COVID-19 carriers, notify staff 19 or residents of COVID-19 carriers, take necessary precautions to ensure the decedent did 20 not contract COVID-19, test residents and staff, and provide personal protective 21 equipment to its employees. 2021 WL 911951, *1-2. The court acknowledged that 22 HHS’s FAD declared that purposeful decisions to refrain from acting based on resource 23 allocation and preservation fell within the scope of the PREP Act. Id. at *5. But the 24 court concluded it was not faced with such a case. While the complaint in McCalebb did 25 reference the defendant’s alleged failure to use certain covered countermeasures, the 26 court concluded that the complaint nonetheless “describe[d] overall inattention rather 27 than conscious decision-making about covered countermeasures while delivering care.” 1 The complaint in the present action—which, unlike the complaint in McCalebb, 2 does not even mention a single covered countermeasure—also describes general 3 inattention and inaction, rather than reasoned inaction bourn of resource scarcity. See 4 Winn, 2021 WL 1292507 at *3 (explaining that claims of inaction fall within scope of 5 PREP Act when “(1) there are limited covered countermeasures; and (2) there was a 6 failure to administer a covered countermeasure to one individual because it was 7 administered to another individual.”) Plaintiff’s Complaint is silent on the reason for 8 Defendant’s many forms of alleged inaction, and Defendant offers no evidence that its 9 inaction was purposeful and reasoned. 10 11 Defendant invites the Court to read references to covered countermeasures into 12 Plaintiff’s Complaint. For example, Defendant argues that its alleged failure to monitor 13 the temperatures of its patients and staff necessarily relates to the use of thermometers, a 14 covered countermeasure. (Opp. at 16.) Even if the Court allows this expansive reading 15 of Plaintiff’s complaint, see Forman v. C.p.c.h., Inc., 2021 WL 2209308, at *2 (C.D. Cal. 16 June 1, 2021) (criticizing the defendant for reading too much into the plaintiff’s 17 complaint), Defendant’s argument does not hold up. If anything, Defendant’s alleged 18 failure to monitor the temperatures of its staff and patients relates to the nonuse of 19 thermometers, and nothing in the Complaint would suggest that such nonuse was the 20 thought-out result of a shortage in thermometers. 21 22 Further, Defendant points out various actions that it took at Cedar Mountain that 23 involved the administration of covered countermeasures to argue that this is not a case of 24 pure inaction. (Opp. at 17.) Defendant very well may have taken some actions at Cedar 25 Mountain, but it does not necessarily follow that the inaction alleged in the complaint 26 was the product of a reasoned decision. See Brown v. Big Blue Healthcare, 480 F.Supp. 27 3d 1196, 1206 (D. Kan. 2020) (“[A] facility using covered countermeasures somewhere 1 in the facility is [not] sufficient to invoke the PREP Act as to all claims that arise in that 2 facility.”) (emphasis in original). 3 4 4. The PREP Act Is Not A Complete Preemption Statute 5 6 Even if Plaintiff’s allegations could be read as relating to the administration of 7 covered countermeasures, the Court agrees with multiple other courts that the PREP Act 8 is not a complete preemption statute. First, this case, as well as the number of other cases 9 holding that general inaction does not fall within the scope of the PREP Act when such 10 inaction is not the product of reasoned resource allocation, show that the PREP Act does 11 not “wholly displace” state law claims. See Beneficial Nat'l Bank, 539 U.S. at 8; see also 12 Stone, 2021 WL 1163572 at *5 (“[T]he PREP Act does not completely replace state law 13 claims related to COVID-19. As many courts have held, the PREP Act does not prevent 14 plaintiffs from bringing state law claims based on an alleged failure to use covered 15 countermeasures.”); Winn, 2021 WL 1292507 at *4-5. 16 17 Additionally, the PREP Act does not provide a substitute cause of action for 18 Plaintiff’s negligence or recklessness claims.4 See City of Oakland, 969 F.3d at 906. 19 Rather, Congress established an emergency fund to provide “adequate compensation to 20 eligible individuals for covered injuries directly caused by the administration or use of a 21 covered countermeasure.” 42 U.S.C. § 247d-6e(a). The Secretary makes determinations 22 as to eligibility under the program which are not subject to judicial review. 42 U.S.C. 23 24 4 Unlike negligence and recklessness claims, Section 247d-6d(d)(1) of the PREP Act does provide an 25 exclusive federal cause of action for claims of willful misconduct. Here, Plaintiff does make some allegations of willful misconduct. (Compl. ¶¶ 53-65.) These allegations, however, do not change the 26 Court’s analysis. The gist of those allegations is that Defendant failed to act and did so with conscious 27 disregard of the known risk of its inaction. This alleged willful misconduct is not the type of reasoned and intentional inaction covered by the FAD. In other words, while the PREP Act may provide a federal 1 §§ 247d-6e(b)(5)(C) & 239a(f). Under Ninth Circuit law, such administrative relief is 2 not the type of displacement remedy that triggers complete preemption. See Moore- 3 Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1245-46 (9th Cir. 2009). Numerous 4 courts in this district have reached the same conclusion.5 See McCalebb, 2021 WL 5 911951 at * 4 (“The PREP Act does not create original federal jurisdiction over a covered 6 claim for negligence or recklessness.”); Stone, 2021 WL 1163572 at *5 (“[T]he PREP 7 Act does not provide a substitute cause of action for Plaintiff’s claims based on 8 Defendant’s negligence.”); Winn, 2021 WL 1292507 at *4. 9 10 B. The Grable Doctrine 11 12 Defendant next argues that the Grable doctrine provides federal question 13 jurisdiction over this case. The Supreme Court in Grable & Sons Metal Products, Inc v. 14 Darue Eng’g & Mfg. held that federal question jurisdiction lies where a state law claim 15 “necessarily raise[s] a stated federal issue, actually disputed and substantial, which a 16 federal forum may entertain without disturbing any congressionally approved balance of 17 federal and state judicial responsibilities.” 545 U.S. 308, 314 (2005). In other words, 18 “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily 19 raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court 20 without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 21 568 U.S. 251, 258 (2013). Here, a federal issue is not necessarily raised by Plaintiff’s 22 Complaint because the federal issue arises from Defendant’s potential preemption 23 24 5 Defendant urges the Court to defer to a January 8, 2021 advisory opinion from the HHS Office of the 25 General Counsel. (See Opp. at 10.) This advisory opinion asserts that “the PREP Act is a complete preemption statute.” (Dkt. 13-30 [Request for Judicial Notice, Ex. DD, hereinafter “AO 21-01”] at 3.) 26 The Court will not defer to this advisory opinion, as it fails to explain how the administrative remedy 27 provided for in the PREP Act can be transformed into a federal cause of action as necessary to supply original jurisdiction. McCalebb, 2021 WL 911951 at *4, n.5 (holding the same); see also Smith, 2021 1 defense. See Lyons v. Cucumber Holdings, LLC, 520 F. Supp. 3d 1277, 1288 (C.D. Cal. 2 2021); Stone, 2021 WL 1163572 at *7; Winn, 2021 WL 1292507 at *5; McCalebb, 2021 3 WL 911951 at *3. Therefore, Grable’s first prong is not met. 4 5 The Secretary and the HHS Office of General Counsel (the “OGC”) have 6 expressed a contrary view. See FAD; AO 21-01.6 In the FAD, the Secretary explained 7 that “there are substantial federal legal and policy issues, and substantial federal legal and 8 policy interests within the meaning of Grable...in having a unified, whole-of-nation 9 response to the COVID-19 pandemic.” 85 Fed. Reg. at 79198. In a January 8, 2021 10 advisory opinion, the OGC summarily concluded that the Secretary’s statement “provides 11 the underlying basis for invoking the Grable doctrine with respect to all claims for loss 12 caused by, arising out of, relating to, or resulting from the administration to or the use by 13 an individual of a covered countermeasure.” (AO 21-01 at 4-5.) Neither the Secretary 14 nor the OGC explained why Grable’s requirements are met solely because there is a 15 substantial federal interest in a unified response to the COVID-19 pandemic. Such an 16 analysis ignores other of Grable’s factors—that a substantial federal interest exists does 17 not mean that it is necessarily raised by a plaintiff’s claims in cases such as the present 18 action. The Court follows various other courts in this district in not giving weight to the 19 conclusory Grable analyses of the Secretary and the OGC. See Stone, 2021 WL 1163572 20 at *7; McCalebb, 2021 WL 911951 at *3; Winn, 2021 WL 1292507 at *5, n.2. 21 22 \\ 23 \\ 24 \\ 25

26 6 The Court takes judicial notice of the HHS Office of the General Counsel Advisory Opinion, dated 27 January 8, 2021. “Under [Federal Rule of Evidence] Rule 201, the court can take judicial notice of public records and government documents available from reliable sources on the internet such as 1 C. Federal Officer Removal 2 3 Finally, Defendant argues that removal is appropriate under 28 U.S.C. § 1442(a). 4 Federal officer removal is available under 28 U.S.C. § 1442(a) if “(a) [the removing 5 party] is a ‘person’ within the meaning of the statute; (b) there is a causal nexus between 6 its actions, taken pursuant to a federal officer’s directions, and plaintiff’s claims; and 7 (c) it can assert a colorable federal defense.” Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 8 1095, 1099 (9th Cir. 2018) (internal quotations omitted). For 28 U.S.C. § 1442(a) to 9 apply, Defendant must establish that there was a causal nexus between Defendant’s 10 conduct and Plaintiff’s claims, while Defendant was “acting under” the direction of a 11 federal officer. See 28 U.S.C. § 1442(a)(1); see also Durham v. Lockheed Martin Corp., 12 445 F.3d 1247, 1251 (9th Cir. 2006). The Supreme Court has held that the phrase “acting 13 under” refers to “an effort to assist, or to help carry out, the duties or tasks of the federal 14 superior.” Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 152 (2007) (emphasis in 15 original). “Acting under” describes “a relationship typically involv[ing] subjection, 16 guidance, or control.” Id. at 151. Mere compliance with federal regulations, “even if the 17 regulation is highly detailed and even if the private firm’s activities are highly supervised 18 and monitored,” does not fall within the scope of the statute. Id. at 153. 19 20 Defendant argues that it was acting under the direction of a federal officer by 21 following the detailed directives issued by the Centers for Disease Control (“CDC”) and 22 the Centers for Medicare and Medicaid Services (“CMS”). (Opp. at 21-25.) As 23 explained in Section IV.A., Plaintiff alleges that Defendant failed to act. Defendant’s 24 inaction cannot be characterized as action under the direction of a federal officer. 25 Further, numerous courts in this district have held that skilled nursing facilities have not 26 acted under the direction of a federal officer in following the COVID-related directives of 27 the CDC and CMS, finding instead that those facilities have merely been complying with 1 ||(C.D. Cal. Oct. 14, 2020) (holding that where the defendants argued that “in taking steps 2 ||to prevent the spread of COVID-19, [they] did so in compliance with CDC and CMS 3 || directives,” such regulations and public directives were “insufficient” to confer 4 ||jurisdiction under the federal officer removal statute); McCalebb, 2021 WL 911951 at 5 ||*6-7; Winn, 2021 WL 1292507 at *6; Smith, 2021 WL 1087284 at *8; Acra v. California 6 || Magnolia Convalescent Hosp., 2021 WL 2769041, at *7 (C.D. Cal. July 1, 2021). 7 || Defendant has done nothing to distinguish itself from the nursing facilities involved in 8 these cases. At most, Defendant has established that it is subject to “highly detailed” 9 ||regulations and that its “activities are highly supervised and monitored.” See Watson, 10 U.S. at 152. That is not sufficient to invoke federal officer removal. 11 12 |}V. CONCLUSION 13 14 For the foregoing reasons, Plaintiff's Motion to Remand is GRANTED. This 15 || action is hereby remanded back to San Bernardino County Superior Court. 16 17 DATED: — October 7, 2021 Ko ) je 18 i +e EF 19 CORMAC J. CARNEY 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28