1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUSAN A. RAE, by and through her Case No.: 21-cv-287-DMS (JLB) successor-in-interest/personal 12 representative, SHANNON ORDER GRANTING PLAINTIFFS’ 13 MONTISANO; SHANNON MOTION TO REMAND MONTISANO, individually; BRENDAN 14 MACRAE, individually; STACEY 15 ADAME, individually; and TODD RAE, individually, 16 Plaintiffs, 17 v. 18 ANZA HEALTHCARE INC., d/b/a 19 VICTORIA POST ACUTE CARE; and 20 DOES 1–50, 21 Defendants. 22 23 This case comes before the Court on Plaintiffs’ motion to remand. Defendant Anza 24 Healthcare, Inc. (“Defendant”) filed a response in opposition, and Plaintiffs filed a reply. 25 For the following reasons, the Court grants Plaintiffs’ motion. 26 / / / 27 / / / 28 / / / 1 I. 2 BACKGROUND 3 Plaintiffs allege Susan A. Rae was admitted to Defendant’s nursing home facility for 4 physical therapy and occupational therapy on March 14, 2020. (Compl., ECF No. 1-2, 5 ¶ 17.) Rae required monitoring and assistance with daily living. (Id.) Plaintiffs allege 6 Defendant’s facility was understaffed and lacked protocols to deal with the COVID-19 7 outbreak, and that consequently, Rae was left in bed without assistance, where she 8 developed a bedsore and became infected with COVID-19. (Id. ¶¶ 13–22.) On March 30, 9 2020, Rae was transferred to Kaiser Hospital, where she passed away on April 6, 2020. 10 (Id. ¶ 23.) 11 Based on these alleged facts, Plaintiffs filed suit in the Superior Court of California, 12 County of San Diego, on January 8, 2021, asserting claims for (1) elder abuse or neglect in 13 violation of California Welfare and Institutions Code § 15600 et seq., (2) violation of a 14 patient’s rights under California Health and Safety Code § 1430, (3) negligence, and (4) 15 wrongful death. (See Compl.) On February 16, 2021, Defendant removed the action to 16 this Court on the basis of federal question jurisdiction. (ECF No. 1.) 17 II. 18 LEGAL STANDARD 19 Federal courts are courts of limited jurisdiction, having subject matter jurisdiction 20 only over matters authorized by the Constitution and Congress. See Kokkonen v. Guardian 21 Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A defendant may remove a civil action 22 from state court to federal court only if the district court could have original jurisdiction 23 over the matter. 28 U.S.C. § 1441(a). A removed action must be remanded to state court 24 if the federal court lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c); Kelton Arms 25 Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) 26 (“Subject matter jurisdiction may not be waived, and, . . . the district court must remand if 27 it lacks jurisdiction.”). “The burden of establishing federal jurisdiction is on the party 28 seeking removal[.]” Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1265 (9th Cir. 1 1999). The Ninth Circuit has directed courts to “strictly construe the removal statute 2 against removal jurisdiction[,]” so that “any doubt as to the right of removal” is resolved 3 in favor of remanding the case to state court. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th 4 Cir. 1992). 5 Pursuant to 28 U.S.C. § 1331, this Court has original jurisdiction over civil actions 6 “arising under” federal law. “A case ‘arises under’ federal law either where federal law 7 creates the cause of action or ‘where the vindication of a right under state law necessarily 8 turn[s] on some construction of federal law.’ ” Republican Party of Guam v. Gutierrez, 9 277 F.3d 1086, 1088–89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Constr. Laborers 10 Vacation Trust, 463 U.S. 1, 8–9 (1983)). “The presence or absence of federal-question 11 jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal 12 jurisdiction exists only when a federal question is presented on the face of the plaintiff’s 13 properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). 14 III. 15 DISCUSSION 16 It is undisputed that Plaintiff’s Complaint alleges only state law causes of action. 17 However, Defendant asserts federal question jurisdiction exists for two reasons: first, the 18 Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-6d (the “PREP Act”) 19 completely preempts Plaintiffs’ claims,1 and second, Plaintiffs’ claims present a federal 20 21 1 Section 247d-6d of the PREP Act, “Targeted liability protections for pandemic and 22 epidemic products and security countermeasures,” provides: 23 [A] covered person shall be immune from suit and liability under Federal and 24 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 25 covered countermeasure if a declaration [by the Secretary of Health and 26 Human Services] has been issued with respect to such countermeasure. 27 42 U.S.C. § 247d-6d(a)(1). The Secretary of the Department of Health and Human Services issued a declaration under the PREP Act with respect to the COVID-19 pandemic on March 28 1 issue under the Grable doctrine. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & 2 Mfg., U.S. 308, 312 (2005). Plaintiffs contend there is no basis for federal jurisdiction and 3 thus that remand is proper. 4 A. Complete Preemption 5 The doctrine of complete preemption permits removal where the “pre-emptive 6 force” of a federal statute is “so ‘extraordinary’ that it ‘converts an ordinary state common- 7 law complaint into one stating a federal claim for purposes of the well-pleaded complaint 8 rule.’ ” City of Oakland v. BP PLC, 969 F.3d 895, 905 (9th Cir. 2020) (quoting Caterpillar, 9 482 U.S. at 393). The Ninth Circuit has held that “complete preemption for purposes of 10 federal jurisdiction under [28 U.S.C.] § 1331 exists when Congress: (1) intended to 11 displace a state-law cause of action, and (2) provided a substitute cause of action.” Id. at 12 905 (citing Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018)). The 13 federal statute “must ‘provide[ ] the exclusive cause of action for the claim asserted and 14 also set forth procedures and remedies governing that cause of action.’ ” Id. (quoting 15 Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003)). 16 District courts within the Ninth Circuit have near-unanimously concluded that the 17 PREP Act is not a complete preemption statute.2 See, e.g., Riggs v. Country Manor La 18 Mesa Healthcare Ctr., No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUSAN A. RAE, by and through her Case No.: 21-cv-287-DMS (JLB) successor-in-interest/personal 12 representative, SHANNON ORDER GRANTING PLAINTIFFS’ 13 MONTISANO; SHANNON MOTION TO REMAND MONTISANO, individually; BRENDAN 14 MACRAE, individually; STACEY 15 ADAME, individually; and TODD RAE, individually, 16 Plaintiffs, 17 v. 18 ANZA HEALTHCARE INC., d/b/a 19 VICTORIA POST ACUTE CARE; and 20 DOES 1–50, 21 Defendants. 22 23 This case comes before the Court on Plaintiffs’ motion to remand. Defendant Anza 24 Healthcare, Inc. (“Defendant”) filed a response in opposition, and Plaintiffs filed a reply. 25 For the following reasons, the Court grants Plaintiffs’ motion. 26 / / / 27 / / / 28 / / / 1 I. 2 BACKGROUND 3 Plaintiffs allege Susan A. Rae was admitted to Defendant’s nursing home facility for 4 physical therapy and occupational therapy on March 14, 2020. (Compl., ECF No. 1-2, 5 ¶ 17.) Rae required monitoring and assistance with daily living. (Id.) Plaintiffs allege 6 Defendant’s facility was understaffed and lacked protocols to deal with the COVID-19 7 outbreak, and that consequently, Rae was left in bed without assistance, where she 8 developed a bedsore and became infected with COVID-19. (Id. ¶¶ 13–22.) On March 30, 9 2020, Rae was transferred to Kaiser Hospital, where she passed away on April 6, 2020. 10 (Id. ¶ 23.) 11 Based on these alleged facts, Plaintiffs filed suit in the Superior Court of California, 12 County of San Diego, on January 8, 2021, asserting claims for (1) elder abuse or neglect in 13 violation of California Welfare and Institutions Code § 15600 et seq., (2) violation of a 14 patient’s rights under California Health and Safety Code § 1430, (3) negligence, and (4) 15 wrongful death. (See Compl.) On February 16, 2021, Defendant removed the action to 16 this Court on the basis of federal question jurisdiction. (ECF No. 1.) 17 II. 18 LEGAL STANDARD 19 Federal courts are courts of limited jurisdiction, having subject matter jurisdiction 20 only over matters authorized by the Constitution and Congress. See Kokkonen v. Guardian 21 Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A defendant may remove a civil action 22 from state court to federal court only if the district court could have original jurisdiction 23 over the matter. 28 U.S.C. § 1441(a). A removed action must be remanded to state court 24 if the federal court lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c); Kelton Arms 25 Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) 26 (“Subject matter jurisdiction may not be waived, and, . . . the district court must remand if 27 it lacks jurisdiction.”). “The burden of establishing federal jurisdiction is on the party 28 seeking removal[.]” Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1265 (9th Cir. 1 1999). The Ninth Circuit has directed courts to “strictly construe the removal statute 2 against removal jurisdiction[,]” so that “any doubt as to the right of removal” is resolved 3 in favor of remanding the case to state court. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th 4 Cir. 1992). 5 Pursuant to 28 U.S.C. § 1331, this Court has original jurisdiction over civil actions 6 “arising under” federal law. “A case ‘arises under’ federal law either where federal law 7 creates the cause of action or ‘where the vindication of a right under state law necessarily 8 turn[s] on some construction of federal law.’ ” Republican Party of Guam v. Gutierrez, 9 277 F.3d 1086, 1088–89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Constr. Laborers 10 Vacation Trust, 463 U.S. 1, 8–9 (1983)). “The presence or absence of federal-question 11 jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal 12 jurisdiction exists only when a federal question is presented on the face of the plaintiff’s 13 properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). 14 III. 15 DISCUSSION 16 It is undisputed that Plaintiff’s Complaint alleges only state law causes of action. 17 However, Defendant asserts federal question jurisdiction exists for two reasons: first, the 18 Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-6d (the “PREP Act”) 19 completely preempts Plaintiffs’ claims,1 and second, Plaintiffs’ claims present a federal 20 21 1 Section 247d-6d of the PREP Act, “Targeted liability protections for pandemic and 22 epidemic products and security countermeasures,” provides: 23 [A] covered person shall be immune from suit and liability under Federal and 24 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 25 covered countermeasure if a declaration [by the Secretary of Health and 26 Human Services] has been issued with respect to such countermeasure. 27 42 U.S.C. § 247d-6d(a)(1). The Secretary of the Department of Health and Human Services issued a declaration under the PREP Act with respect to the COVID-19 pandemic on March 28 1 issue under the Grable doctrine. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & 2 Mfg., U.S. 308, 312 (2005). Plaintiffs contend there is no basis for federal jurisdiction and 3 thus that remand is proper. 4 A. Complete Preemption 5 The doctrine of complete preemption permits removal where the “pre-emptive 6 force” of a federal statute is “so ‘extraordinary’ that it ‘converts an ordinary state common- 7 law complaint into one stating a federal claim for purposes of the well-pleaded complaint 8 rule.’ ” City of Oakland v. BP PLC, 969 F.3d 895, 905 (9th Cir. 2020) (quoting Caterpillar, 9 482 U.S. at 393). The Ninth Circuit has held that “complete preemption for purposes of 10 federal jurisdiction under [28 U.S.C.] § 1331 exists when Congress: (1) intended to 11 displace a state-law cause of action, and (2) provided a substitute cause of action.” Id. at 12 905 (citing Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018)). The 13 federal statute “must ‘provide[ ] the exclusive cause of action for the claim asserted and 14 also set forth procedures and remedies governing that cause of action.’ ” Id. (quoting 15 Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003)). 16 District courts within the Ninth Circuit have near-unanimously concluded that the 17 PREP Act is not a complete preemption statute.2 See, e.g., Riggs v. Country Manor La 18 Mesa Healthcare Ctr., No. 21-CV-331-CAB-DEB, 2021 WL 2103017, at *2 (S.D. Cal. 19
20 to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical 21 Countermeasures Against COVID-19, 86 Fed. Reg. 14462, 14463 (Mar. 16, 2021). 2 The lone exception appears to be Garcia v. Welltower OpCo Group LLC, No. 22 SACV2002250JVSKESX, 2021 WL 492581 (C.D. Cal. Feb. 10, 2021), which Defendant 23 relies upon. But as another court explained, “the court in Garcia deferred to the HHS Secretary’s opinion of PREP Act complete preemption” and “did not consider the Ninth 24 Circuit’s two-part complete preemption test.” Golbad v. GHC of Canoga Park, No. 25 221CV01967ODWPDX, 2021 WL 1753624, at *3 (C.D. Cal. May 4, 2021). Notably, “all of the federal district court decisions reported on Westlaw that cite to and consider Garcia 26 have declined to follow its lead.” Est. of Parr ex rel. Parr v. Palm Garden of Winter Haven, 27 LLC, No. 8:21-CV-764-SCB-SPF, 2021 WL 1851688, at *2 (M.D. Fla. May 10, 2021) (agreeing “the PREP Act does not provide complete preemption”). This Court likewise 28 1 May 25, 2021) (“Plaintiffs’ claims are not completely preempted by the PREP Act.”); 2 Golbad v. GHC of Canoga Park, No. 221CV01967ODWPDX, 2021 WL 1753624, at *2 3 (C.D. Cal. May 4, 2021) (“[S]imply put, the PREP Act does not satisfy the Ninth Circuit’s 4 two-part complete preemption test.”); Padilla v. Brookfield Healthcare Ctr., No. CV 21- 5 2062-DMG (ASX), 2021 WL 1549689, at *4 (C.D. Cal. Apr. 19, 2021) (“Nearly every 6 other federal court addressing the issue of complete preemption has found that the PREP 7 Act is not a statute with complete preemptive effect.”). Notably, the PREP Act does not 8 supply an exclusive federal cause of action. See Winn v. California Post Acute LLC, No. 9 CV2102854PAMARX, 2021 WL 1292507, at *4 (C.D. Cal. Apr. 6, 2021) (“[T]he PREP 10 Act does not provide a substitute cause of action for Plaintiff’s claims based on Defendant’s 11 alleged negligence claims. Instead, when applicable, the PREP Act provides immunity to 12 defendants on state law negligence claims.”) (internal quotation marks and citation 13 omitted); Padilla, 2021 WL 1549689, at *4 (“[T]he PREP Act provides for a federal 14 administrative remedy for injuries arising from non-willful behavior, not an exclusive 15 federal cause of action.”) (emphasis in original). 16 Other district courts nationwide have reached the same conclusion—that the PREP 17 Act does not completely preempt state law claims such as those raised by Plaintiffs here. 18 See, e.g., Bolton v. Gallatin Ctr. for Rehab. & Healing, LLC, No. 3:20-CV-00683, 2021 19 WL 1561306, at *7 (M.D. Tenn. Apr. 21, 2021) (“[N]early every district court to consider 20 whether the PREP Act completely preempts similar state-law claims against nursing homes 21 has concluded the PREP Act is not a complete preemption statute, or at least does not have 22 such an effect on claims like those presented here.”) (internal quotation marks and citations 23 omitted);3 Dupervil v. All. Health Operations, LCC, No. 20CV4042PKCPK, 2021 WL 24
25 3 Notably, the Bolton court rejected arguments raised by the Department of Justice in a “Statement of Interest” filed in that case, which statement Defendant relies upon here in 26 support of its complete preemption argument. The Bolton court distinguished the Air 27 Transportation Safety and System Stabilization Act of 2001 (“ATSSSA”), a complete preemption statute, see In re WTC Disaster Site, 414 F.3d 352, 371–80 (2d Cir. 2005), from 28 1 355137, at *9–11 (E.D.N.Y. Feb. 2, 2021) (“[T]he PREP Act does not completely preempt 2 state-law claims within its scope.”); Evans v. Melbourne Terrace Rcc, LLC, No. 6:21-CV- 3 381-JA-GJK, 2021 WL 1687173, at *2 (M.D. Fla. Apr. 29, 2021) “[T]he PREP Act is not 4 a complete preemption statute.”). The Court finds the reasoning in these cases persuasive, 5 and thus agrees with the weight of authority that the PREP Act is not a complete preemption 6 statute. The PREP Act therefore does not provide a basis for federal question jurisdiction 7 over Plaintiffs’ claims here. 8 B. Grable Doctrine 9 In Grable, the Supreme Court recognized that “in certain cases federal-question 10 jurisdiction will lie over state-law claims that implicate significant federal issues.” 545 11 U.S. at 312. Under this doctrine, federal jurisdiction over a state law claim exists if a 12 federal issue is “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable 13 of resolution in federal court without disrupting the federal-state balance approved by 14 Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). “Only a few cases have fallen into 15 this ‘slim category[.]’ City of Oakland, 969 F.3d at 904 (quoting Empire Healthchoice 16 Assur., Inc. v. McVeigh, 547 U.S. 677, 701 (2006)). 17 “District courts have consistently rejected healthcare providers’ or assisted living 18 facilities’ arguments that claims arising out of patients or residents getting COVID-19 raise 19 embedded federal issues with respect to the PREP Act.” Riggs, 2021 WL 2103017 at *3. 20 Here, Plaintiffs allege state law claims for violations of California statutes, negligence, and 21 wrongful death. The Court agrees with other courts that have concluded in similar contexts 22 that “immunity under the PREP Act is a defense, not a necessary aspect of Plaintiffs’ state 23 law claims.” Padilla, 2021 WL 1549689 at *6; see, e.g., Winn, 2021 WL 1292507 at *5 24 25 federal cause of action, whereas the PREP Act “creates no similar exclusive federal cause 26 or right of action for claims other than those involving willful misconduct.” Id. at *7; see 27 also Dupervil v. All. Health Operations, LCC, No. 20CV4042PKCPK, 2021 WL 355137, at *9 (E.D.N.Y. Feb. 2, 2021) (stating “the PREP Act does not provide the exclusive cause 28 1 || & n.2 (finding plaintiffs’ state law claims against nursing facility did not necessarily raise 2 || federal issue under PREP Act); Dupervil, 2021 WL 355137 at *14 (“[T]his only shows that 3 || Defendants may have an affirmative defense to Plaintiffs claims, not that Plaintiffs claims 4 || are affirmatively premised on, or on their face necessarily require resolution of, the PREP 5 || Act.’’). “[A] case may not be removed to federal court on the basis of a federal defense, 6 ||including the defense of pre-emption, even if the defense is anticipated in the □□□□□□□□□□ 7 ||complaint, and even if both parties concede that the federal defense is the only question 8 at issue.” Caterpillar, 482 U.S. at 393. Plaintiffs’ Complaint does not “necessarily 9 raise” a federal issue permitting the exercise of federal jurisdiction under Grable. 10 IV. 1] CONCLUSION AND ORDER 12 For the reasons set out above, Plaintiffs’ motion to remand is GRANTED. This case 13 hereby remanded to the Superior Court of California, County of San Diego. Defendant’s 14 || pending motion to dismiss is DENIED as moot without prejudice. 15 IT IS SO ORDERED. 16 ||Dated: June 3, 2021 □ gf, J 17 a Yn: 18 Hon. Dana M. Sabraw, Chief Judge United States District Court 19 20 21 22 23 24 25 26 27 28