1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Kashif Shankle, et al., Case No.: 2:21-cv-01316-JAD-BNW
4 Plaintiffs Order Granting Motion to Remand and 5 v. Denying Motions to Dismiss
6 The Heights of Summerlin, LLC, et al., [ECF Nos. 9, 10, 15]
7 Defendants
8 Six plaintiffs—the special administrator of Rita Esparza’s estate and her five statutory 9 heirs—filed this action in state court against a nursing home, The Heights of Summerlin, and 10 four other defendants,1 alleging wrongful death, elder abuse, and various negligence claims 11 following Esparza’s death in July 2020.2 The defendants removed, theorizing that because this 12 case involves protocols they implemented in response to the COVID-19 pandemic, federal 13 jurisdiction exists under either the Public Readiness and Emergency Preparedness (PREP) Act3 14 or the federal-officer removal statute.4 The plaintiffs move to remand,5 and the defendants move 15 to dismiss.6 Joining with the vast majority of courts that have considered these issues, I find that 16
17 1 Defendants Latoya Davis and Andrew Reese are named in the complaint as administrators of The Heights. ECF No. 1-2 at ¶¶ 12–13. Defendant Summit Care owns and operates The 18 Heights, and Defendant Genesis is the parent company of both The Heights and Summit Care. Id. at ¶¶ 9–11. The plaintiffs seemingly attribute the alleged actions contributing to Esparza’s 19 death to all defendants and do not distinguish between them in the complaint’s factual allegations or causes of action. 20 2 ECF No. 1-2 at ¶¶ 56–136. 21 3 42 U.S.C. § 247d-6d. 22 4 28 U.S.C. § 1442(a)(1). See ECF No. 18 at 6–7. 5 ECF No. 15. 23 6 ECF No. 9; ECF No. 10. I find that all three motions are suitable for disposition without oral argument. See L.R. 78-1. 1 neither the PREP Act nor the federal-officer removal statute is a sufficient basis for this court to 2 exercise jurisdiction over this case. So I grant the plaintiffs’ motion to remand, deny as moot the 3 motions to dismiss, and send this case back to state court. 4 Background7
5 From June 2019 until just before she died in July 2020, 70-year-old Esparza “was an 6 intermittent resident” at The Heights, “where she was supposed to receive 24-hour care and 7 supervision.”8 As a resident, she suffered from “cardiac disease, hypertension, diabetes mellitus, 8 kidney disease, osteoarthritis, muscle weakness, and a history of falling,” and she also contracted 9 and was hospitalized for COVID-19.9 She “struggled to care for herself,” so she needed 10 assistance meeting her daily needs, including “hydrating, feeding, dressing, toileting, bathing, 11 transferring, ambulating, and other services necessary to maintain her physical and mental 12 health.”10 The plaintiffs allege that the defendants “failed to provide [Esparza] with basic care;” 13 “failed to implement adequate fall precautions;” “failed to adequately hydrate and nourish” 14 Esparza; “failed to provide [her] with adequate hygiene and care measures;” and “failed to
15 develop and follow proper policies, procedures, and precautions to prevent the transmission and 16 spread of SARS COVID-19.”11 Esparza ultimately contracted sepsis and pneumonia and was 17 transported to Summerlin Hospital for treatment on July 17, 2020, where she died about a week 18 later.12 19
7 These facts are a summary of the plaintiffs’ allegations and are not intended as findings of fact. 20 8 ECF No. 1-2 at ¶ 33. 21 9 Id. at ¶¶ 35, 52. The defendants weren’t treating Esparza for COVID-19, and she wasn’t diagnosed with it until after she left The Heights. ECF No. 15 at 16. 22 10 ECF No. 1-2 at ¶¶ 37, 43. 23 11 Id. at ¶¶ 44–49, 51. 12 Id. at ¶¶ 50, 54–55. 1 The plaintiffs filed their initial complaint in Nevada’s Eighth Judicial District Court on 2 June 14, 2021.13 It contains exclusively state-law claims including elder abuse; negligence; 3 negligent hiring, training, retention, and supervision; negligence per se; negligent breach of 4 fiduciary duty; wrongful death and survival; negligent misrepresentation; and professional
5 negligence.14 The defendants removed the case to federal court on July 12, 2021.15 One week 6 later, three defendants—The Heights, Latoya Davis, and Andrew Reese—moved to dismiss the 7 plaintiffs’ complaint,16 and the other two—Summit Care and Genesis Healthcare—moved to 8 dismiss shortly thereafter.17 The plaintiffs move to remand the case back to state court.18 9 Discussion 10 “Federal courts are courts of limited jurisdiction,”19 and there is a “strong presumption 11 against removal jurisdiction.”20 Removal statutes are strictly construed, and “[f]ederal 12 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 13 instance.”21 The defendant always has the burden of establishing that removal is proper,22 and 14
13 Id. at 2–21. 15 14 ECF No. 1-2 at 9–19. 16 15 The plaintiffs allege that the defendants’ notice of removal followed “a template from a separate case that exclusively concerns COVID-19” and that the defendants “make a number of 17 gross mischaracterizations,” framing this case as one almost solely about The Heights’s COVID- 19 protocols (or alleged lack thereof) and ignoring the plaintiffs’ other general negligence 18 claims. ECF No. 15 at 4–5. 19 16 ECF No. 9. 17 ECF No. 10. 20 18 ECF No. 15. 21 19 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 22 20 Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992) (internal quotation marks and citations omitted). 23 21 Id. (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). 22 Id. 1 “[a]n action filed in state court may be removed only if the district court could have exercised 2 jurisdiction over the action if originally filed there.”23 “The presence or absence of federal- 3 question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that 4 federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s
5 properly pleaded complaint.”24 “The rule makes the plaintiff the master of the claim; he or she 6 may avoid federal jurisdiction by exclusive reliance on state law.”25 7 I. The PREP Act does not supply federal jurisdiction. 8 Defendants removed this action to federal court based on federal-question jurisdiction, 9 and they offer two jurisdictional reasons that this case belongs in federal court, the first of which 10 is the PREP Act.26 The PREP Act shields “covered persons” such as pharmacies and drug 11 manufacturers27 from liability “for all claims for loss caused by, arising out of, relating to, or 12 resulting from the administration to or the use by an individual of a covered countermeasure.”28 13 It authorizes the Secretary of the U.S. Department of Health and Human Services (HHS) to issue 14 declarations that “a disease or other health condition or other threat to health constitutes a public
15 16 17
23 Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) (citing Caterpillar Inc. v. Williams, 18 482 U.S. 386, 392 (1987)). 19 24 Id. (citing Gully v. First Nat’l Bank, 299 U.S. 109, 112–13 (1936)). 25 Caterpillar Inc., 482 U.S. at 392. 20 26 ECF No. 1 (petition for removal). 21 27 Maglioli v. Alliance HC Holdings, LLC, 16 F.4th 393, 400 (3d Cir. 2021). 28 42 U.S.C. § 247d-6d(a)(1) (emphasis added). Covered countermeasures are narrowly defined 22 as drugs, biological products, and devices “manufactured, used, designed, developed, modified, licensed, or procured” to “diagnose, mitigate, prevent, treat, or cure a pandemic or epidemic” or 23 to “limit the harm such pandemic or epidemic might otherwise cause.” 42 U.S.C. § 247d- 6d(i)(7). 1 health emergency.”29 “The Act lies dormant until invoked by the Secretary of” HHS,30 who 2 declared the COVID-19 pandemic such an emergency in March 2020.31 If a claim is barred 3 because of PREP Act immunity, injured parties are not without a remedy. The Act establishes a 4 compensation fund “for covered injuries directly caused by the administration or use of a
5 covered countermeasure.”32 6 A. The plaintiffs’ allegations do not implicate the PREP Act. 7 The plaintiffs contend that this case belongs in state court because their complaint 8 involves entirely state-law claims and the defendants aren’t covered persons being sued for 9 covered countermeasures under the PREP Act.33 The defendants, on the other hand, cast this 10 case as one focused on the insufficiency of their COVID-19 protocols. But the threshold 11 questions are whether the plaintiffs assert the types of claims that implicate the PREP Act or 12 whether the defendants are the types of persons using the types of countermeasures covered in 13 the Act, and the answer to both questions is no. 14 1. The plaintiffs’ claims don’t involve federal law.
15 In a creative attempt to manufacture federal-court jurisdiction,34 the defendants 16 characterize this dispute as one focusing on a single issue: their COVID-19 protocols. But the 17
18 29 42 U.S.C. § 247d-6d(b). 30 Maglioli, 16 F.4th at 400. 19 31 Declaration Under the PREP Act for Medical Countermeasures Against COVID-19 (the 20 Declaration), 85 Fed. Reg. 15198-01, 2020 WL 1245193 (Mar. 17, 2020). 32 42 U.S.C. § 247d-6e. 21 33 ECF No. 1-2; ECF No. 15 at 7–15. 22 34 Many other similar cases have recently been remanded to state court after defendants attempted to remove based on the PREP Act or the federal-officer removal statute. See, e.g., 23 Hagoubyan, 2021 WL 4288524; Sarnoff v. Silverado Senior Living, Inc., 2021 WL 4168191 (C.D. Cal. Sept. 14, 2021) (consolidating six other cases); Olaso v. Alexandria Care Ctr., LLC, 2021 WL 4556422 (C.D. Cal. Sept. 10, 2021); Cortez v. Parkwest Rehab. Ctr. LLC, 2021 WL 1 plaintiffs scarcely mention COVID-19 in their complaint. They note only that Esparza 2 contracted and recovered from the virus and include the defendants’ lack of COVID-19 protocols 3 as an example of the defendants’ deficiencies in caring for her.35 The defendants maintain that 4 because the plaintiffs allege that the defendants “failed to develop and follow proper COVID-19
5 procedures, it necessarily implicates the Defendants’ use of PPE and test-kits, and as such, falls 6 under the PREP Act.”36 This is an overgeneralization. The PREP Act’s purpose is to shield 7 entities from liability stemming from their administration of a covered countermeasure like a 8 vaccine, not to shield them from liability for traditional state-law claims merely because the 9 alleged actions occurred during a public health emergency.37 And traditional state-law claims 10 are what we have here, as plaintiffs’ case is about the defendants’ alleged failure to provide 11 adequate care based on the numerous falls that Esparza experienced and her declining health 12 13 4033759 (C.D. Cal. Sept. 3, 2021); Martinez v. Spruce Holdings, LLC, 2021 WL 3883704 (E.D. 14 Cal. Aug. 31, 2021); Heim v. 1495 Cameron Ave., LLC, 2021 WL 3630374 (C.D. Cal. Aug. 17, 2021); Holloway v. Centinela Skilled Nursing & Wellness Ctr. W., LLC, 2021 WL 4237736 15 (C.D. Cal. Aug. 17, 2021); Thomas v. Century Villa Inc., 2021 WL 2400970 (C.D. Cal. June 10, 2021); Rae v. Anza Healthcare Inc., 2021 WL 2290776 (S.D. Cal. June 4, 2021); Riggs v. 16 Country Manor La Mesa Healthcare Ctr., 2021 WL 2103017 (S.D. Cal. May 25, 2021); Padilla v. Brookfield Healthcare Ctr., 2021 WL 1549689 (C.D. Cal. Apr. 19, 2021); Winn v. Cal. Post 17 Acute LLC, 2021 WL 1292507 (C.D. Cal. Apr. 6, 2021); Nava v. Parkwest Rehab. Ctr. LLC, 2021 WL 1253577 (C.D. Cal. Apr. 5, 2021); Ivey v. Serrano Post Acute, LLC, 2021 WL 18 1139741 (C.D. Cal. Mar. 25, 2021); Smith v. Colonial Care Ctr. Inc., 2021 WL 1087284 (C.D. Cal. Mar. 19, 2021); Jones v. St. Jude Operating Co., LLC, 2021 WL 886217 (D. Or. Mar. 8, 19 2021); McCalebb v. AG Lynwood, LLC, 2021 WL 911951 (C.D. Cal. Mar. 1, 2021); Lyons v. Cucumber Holdings, LLC, 520 F. Supp. 3d 1277 (C.D. Cal. Feb. 3, 2021); Parker v. St. Jude 20 Operating Co., LLC, 2020 WL 8362407 (D. Or. Dec. 28, 2020); Saldana v. Glenhaven Healthcare LLC, 2020 WL 6713995 (C.D. Cal. Oct. 14, 2020); Martin v. Serrano Post Acute 21 LLC, 2020 WL 5422949 (C.D. Cal. Sept. 10, 2020). “The story in all of these cases is essentially the same.” Maglioli, 16 F.4th at 402. 22 35 ECF No. 1-2 at ¶¶ 51–52, 123–26, 129. 23 36 ECF No. 18 at 6. 37 See Maglioli, 16 F.4th at 400–01. 1 while at The Heights. Plaintiffs’ brief mention of COVID-19 protocols is insufficient to convert 2 their purely state-law claims into federal ones based on the PREP Act.38 3 2. The plaintiffs aren’t suing over covered countermeasures.
4 The defendants also contend that the PREP Act supplies federal jurisdiction because they 5 are being sued over covered countermeasures.39 Covered countermeasures are drugs, biological 6 products, and devices that are used in response to a pandemic, such as vaccines and masks.40 7 But the plaintiffs aren’t suing over covered countermeasures. They don’t allege that the 8 defendants used—or failed to use—a certain drug, device, vaccine, or other countermeasure as 9 defined by the PREP Act. They merely state that defendants failed to develop proper protocols 10 to stop the transmission and spread of COVID-19, as one example of the myriad ways in which 11 they neglected to appropriately care for Esparza. But none of these alleged actions or inactions 12 implicates the defendants’ use of covered countermeasures. 13 3. The defendants aren’t covered persons. 14 The five defendants are The Heights of Summerlin (a nursing facility), Summit Care (the
15 owner and operator of The Heights), Genesis (the parent company of the first two), Latoya Davis 16 (an administrator of The Heights), and Andrew Reese (another administrator).41 They insist that 17 they are covered persons under the Act because they “acted within their capacity to respond to 18 the COVID-19 pandemic by administration, allocation, distribution and use, of COVID-19 19 countermeasures in response to the COVID-19 pandemic” and are therefore “program planners,” 20 21 38 Id. at 400 (“There is no COVID-19 exception to federalism.”). 22 39 ECF No. 18 at 10–17. 23 40 42 U.S.C. § 247d-6d(i)(7). 41 ECF No. 1-2 at ¶¶ 9–13. 1 as defined by HHS.42 The plaintiffs respond that the defendants aren’t covered persons because 2 they didn’t provide countermeasures as covered in the Act. 3 Under the PREP Act, a covered person is a “person or entity” who manufactures or 4 distributes a covered countermeasure; “a program planner of such countermeasure”; “a qualified
5 person who prescribed, administered, or dispensed such countermeasure”; or “an official, agent, 6 or employee of” a covered person.43 The defendants rely heavily on HHS Advisory Opinion 7 (AO) 21-0144 to contend that they should be considered “program planners” and thus entitled to 8 PREP Act immunity. That opinion attempts to clarify the PREP Act’s application to COVID-19 9 cases in nursing facilities and describes a program planner as “someone who is involved in 10 providing or allocating covered countermeasures.”45 The defendants urge me to find that AO 11 21-01 is binding and to apply Chevron deference to it because Congress has expressly delegated 12 interpretative authority to HHS.46 Chevron deference is appropriate “when it appears that 13 Congress delegated authority to the agency generally to make rules carrying the force of law, and 14 that the agency interpretation claiming deference was promulgated in the exercise of that
15 authority.”47 16 17
18 42 ECF No. 18 at 13. 19 43 42 U.S.C. § 247d-6d(i)(2). 44 The HHS Office of the General Counsel (OGC) issued this advisory opinion in January 2021, 20 interpreting the HHS Secretary’s March 2020 declaration that COVID-19 was a public health emergency under the PREP Act. 21 45 Dep’t of Health & Human Servs., Office of the Sec’y, General Counsel, Adv. Op. 21-01 at 4 22 (Jan. 8, 2021). 46 ECF No. 18 at 18–19 (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 23 837, 843–44 (1984)). 47 U.S. v. Mead Corp., 533 U.S. 218, 226–27 (2001). 1 AO 21-01 is not entitled to Chevron deference. The advisory opinion explicitly states 2 that “it is not a final agency action or a final order” and that “[i]t does not have the force or effect 3 of law.”48 This is a clear indication that HHS did not publish AO 21-01 under congressionally 4 delegated authority. Rejecting a similar argument in Maglioli v. Alliance HC Holdings, LLC, the
5 Third Circuit concluded that “Congress has not given us power to take this case from the state 6 court.”49 The court reasoned that Congress delegated to HHS the authority to declare public 7 health emergencies under the PREP Act, but not to interpret federal-court jurisdiction.50 For the 8 same reason, I, too, decline to extend Chevron deference to AO 21-01. 9 Were I to accept AO 21-01’s definition of “program planner,” the defendants still 10 wouldn’t qualify as covered persons here because, as discussed supra, no part of the plaintiffs’ 11 complaint alleges that defendants should be held liable for their use of covered countermeasures. 12 So I instead apply the PREP Act’s definition. It refers to state and local governments (and the 13 persons they employ) and others who supervise or administer a program regarding pandemic 14 products, “including a person who has established requirements, provided policy guidance, or
15 supplied technical or scientific advice.”51 The plaintiffs allege that the defendants failed to 16 establish sufficient COVID-19 protocols within the nursing facility, not that they failed to 17 provide policy guidance to the community-at-large (as a government entity or its employees 18 would). Because the plaintiffs haven’t alleged that the defendants acted in a program-planner 19 role, defendants cannot claim the label of “covered persons” under the PREP Act. 20
21 48 Dep’t of Health & Human Servs., Office of the Sec’y, General Counsel, Adv. Op. 21-01 (Jan. 8, 2021). 22 49 Maglioli, 16 F.4th at 400. 23 50 Id. at 403–04. 51 42 U.S.C. § 247d-6d(i)(6). 1 B. The PREP Act is not a complete-preemption statute. 2 Even if the plaintiffs’ claims were preempted by the PREP Act, that wouldn’t necessarily 3 confer federal jurisdiction. “The fact that a defendant might ultimately prove that a plaintiff’s 4 claims are pre-empted . . . does not establish that they are removable to federal court.”52 “[I]t is
5 settled law that a case may not be removed to federal court on the basis of a federal defense, 6 including a defense of preemption,”53 unless “the preemptive force of a statute is so 7 ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a 8 federal claim for purposes of the well-pleaded complaint rule.’”54 Known as the complete- 9 preemption doctrine, this principle “displace[s] entirely any state cause of action,” making the 10 suit “purely a creature of federal law.”55 11 The defendants contend that the plaintiffs’ action—though it asserts exclusively state-law 12 claims—is completely preempted by the PREP Act because the PREP Act issues here are so 13 pervasive.56 But as the Ninth Circuit has recognized, “complete preemption is ‘rare.’”57 The 14 Supreme Court has identified only three federal statutes58 that completely preempt areas of state
15 16
52 Caterpillar, 482 U.S. at 398. 17 53 Id. at 393. 18 54 Id. (quoting Franchise Tax Board of Cal. v. Construction Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 12 (1983)). 19 55 Franchise Tax Board of Cal., 463 U.S. at 23. 20 56 ECF No. 1 at 8 (petition for removal); ECF No. 18 at 7 & n.2. 57 Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018) (citing Retail Prop. Tr. v. 21 United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014); ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality of Mont., 213 F.3d 1108, 1114 (9th Cir. 22 2000)). 23 58 See City of Oakland v. BP PLC, 969 F.3d 895, 905–06 (9th Cir. 2020) (identifying the three statutes as (1) § 301 of the Labor Management Relations Act (LMRA) (29 U.S.C. § 185), (2) § 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. 1 law to the extent that claims under those statutes are “purely a creature of federal law,”59 and the 2 PREP Act is not one of them. The Ninth Circuit employs a two-part test to determine whether 3 complete preemption exists for federal jurisdiction purposes: it exists “when Congress: (1) 4 intended to displace a state-law cause of action, and (2) provided a substitute cause of action.”60
5 The PREP Act fails this test. 6 As an immunity statute, the PREP Act is an administrative remedy that was created to 7 shield covered persons from liability, not to displace a state-law cause of action.61 And the Act 8 doesn’t provide prospective plaintiffs with an “exclusive federal cause of action” that replaces 9 run-of-the-mill state-law negligence claims.62 “Complete preemption rests on the theory that any 10 state claim within its reach is transformed into a federal claim.”63 So the substitute cause of 11 action offered by the statute must be a federal cause of action that can be pursued in federal 12 court, not merely an administrative remedy.64 13 To argue that the PREP Act is a complete-preemption statute, the defendants rely on an 14 outlier case: Garcia v. Welltower.65 The district court in Garcia relied on AO 21-01’s
16 § 1132(a), and (3) §§ 85 and 86 of the National Bank Act (12 U.S.C. §§ 85, 86)) (citations omitted). 17 59 Franchise Tax Bd. of State of Cal., 463 U.S. at 23–24. 18 60 City of Oakland, 969 F.3d at 906 (citations omitted). 61 See Thomas, 2021 WL 2400970, at *4. 19 62 See id. at *4–5. 20 63 Hagoubyan, 2021 WL 4288524, at *4 (internal quotation marks and citation omitted). 64 Id. (citing Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1245–46 (9th Cir. 2009)). 21 65 ECF No. 18 at 16–17 (citing Garcia v. Welltower OpCo Group LLC, 522 F. Supp. 3d 734 22 (C.D. Cal. Feb. 10, 2021)). The defendants also purport to rely on two other decisions in which courts “granted defendants’ unopposed motions to dismiss based on the PREP Act,” but both 23 were decided on purely procedural grounds, not on their merits. ECF No. 18 at 16–17 (citing Branch v. Lilac Holdings, LLC, No. 3:21-cv-00605-BAS-MDD (S.D. Cal. June 16, 2021) (considering pro se plaintiffs’ failure to oppose defendant’s motion as consent to grant it); Reilly 1 determination that the PREP Act is a complete-preemption statute, applied Chevron deference, 2 and rejected other cases interpreting the statute because they were decided before AO 21-01 was 3 promulgated.66 But Garcia is not persuasive because, as explained supra, I do not find that 4 Chevron deference is warranted, nor do I agree with the opinion’s conclusions. Plus, “[t]he
5 scope of judicial review . . . is hardly the kind of question that [we] presume[] that Congress 6 implicitly delegated to an agency,”67 and the PREP Act “does not grant the [HHS] Secretary 7 authority to opine on the scope of federal jurisdiction.”68 Indeed, “[n]early every other federal 8 court addressing the issue of complete preemption has found that the PREP Act is not a statute 9 with preemptive effect.”69 I join them and conclude that the PREP Act does not provide a basis 10 for federal jurisdiction in this case. 11 II. The federal-officer removal statute does not supply federal jurisdiction here because 12 the defendants didn’t act under a federal officer’s direction.
13 As an alternative hook, the defendants reason that if the PREP Act doesn’t apply here, 14 this court still has subject-matter jurisdiction based on 28 U.S.C. § 1442(a), known as the 15 federal-officer removal statute. That statute allows lawsuits filed in state court against “[t]he 16 United States or any agency thereof or any officer (or any person acting under that officer) of the 17 United States or of any agency thereof” to be removed to federal district court.70 Federal-officer 18
19 v. Delta Healthcare II, LLC, No. 8:21-cv-1013-JSM-JSS (M.D. Fla. June 7, 2021) (granting unopposed motion to dismiss after plaintiff was ordered to show cause for failure to timely 20 respond and didn’t)). 21 66 Garcia, 522 F. Supp. at 742. 67 Smith v. Berryhill, --- U.S. ---, 139 S. Ct. 1765, 1778 (2019). 22 68 Maglioli, 16 F.4th at 403. 23 69 Padilla, 2021 WL 1549689, at *4 (citations omitted) (collecting cases). 70 28 U.S.C. § 1442(a). 1 removal is permitted when “(a) [the removing party] is a person within the meaning of the 2 statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer’s 3 directions, and plaintiff’s claims; and (c) it can assert a colorable federal defense.”71 To 4 “demonstrate a causal nexus, [the defendant] must show: (1) that the person was ‘acting under’ a
5 federal officer in performing some ‘act under color of federal office,’ and (2) that such action is 6 causally connected with the plaintiffs’ claims.”72 7 The defendants argue that they “satisfy all elements for removal under” the federal- 8 officer removal statute because they “were acting as part of the critical infrastructure at the 9 specific direction of state and federal authorities to address the local and national state of 10 emergency to contain the COVID-19 pandemic and prevent the spread of the virus.”73 The 11 plaintiffs counter that the defendants “fall short of demonstrating that they were transformed into 12 federal officers or were standing in the shoes of federal officers” by “acting under directives 13 issued by the CDC and the Nevada Department of Health and Human Services.”74 They further 14 contend that although the defendants claim to have followed CDC guidelines—like isolating
15 suspected COVID-19 patients, screening visitors prior to entering the facility, and reporting 16 suspected COVID-19 cases to appropriate authorities—“these fall among [d]efendants’ alleged 17 failures.”75 So even if the defendants thought they were acting under a federal official’s 18 direction, they weren’t complying. 19
20 71 Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018) (internal quotation marks and citations omitted). 21 72 Cty. of San Mateo v. Chevron Corp., 960 F.3d 586, 598 (9th Cir. 2020) (citing Goncalves ex rel. Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d 1237, 1244 (9th Cir. 2017)). 22 73 ECF No. 18 at 20–21. 23 74 ECF No. 15 at 15–16. 75 Id. at 16–17. 1 Ninth Circuit authority makes it clear that a far more direct connection to a federal officer 2 is needed to remove a state-court action under this statute. In Fidelitad, Inc. v. Insitu, Inc., a 3 drone distributor sued a manufacturer who removed based on the federal-officer removal statute, 4 arguing that it had acted under a federal officer’s direction in delaying the distributor’s orders to
5 comply with federal export laws.76 Although the district court denied the distributor’s motion to 6 remand,77 the Ninth Circuit reversed, holding that the statute didn’t apply because the 7 manufacturer wasn’t acting under a federal officer’s direction.78 The court reasoned that no 8 federal officer had directed the defendant to delay the distributor’s orders or to stop doing 9 business with the distributor, and it emphasized that no evidence showed communications 10 between the defendant and a federal officer about the orders.79 The court held that “‘simply 11 complying with the law’ does not bring a private actor within the scope of the federal-officer 12 removal statute”80 because “[a] private firm’s compliance (or noncompliance) with federal laws, 13 rules, and regulations does not by itself fall within the scope of the statutory phrase ‘acting 14 under’ a federal ‘official.’ And that is so even if the regulation is highly detailed and even if the
15 private firm’s activities are highly supervised and monitored.”81 “For a private entity to be 16 acting under a federal officer, the private entity must be involved in an effort to assist, or to help 17 carry out, the duties or tasks of the federal superior.”82 18 19 76 Fidelitad, 904 F.3d at 1097. 20 77 Id. at 1098. 21 78 Id. at 1101. 79 Id. at 1099–1100. 22 80 Id. at 1100 (quoting Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 152 (2007)). 23 81 Watson, 551 U.S. at 153. 82 Fidelitad, 904 F.3d at 1099 (internal quotation marks and citations omitted). 1 A California district court rejected federal jurisdiction on facts similar to those presented 2 here. In Cortez v. Parkwest Rehabilitation Center, LLC, the heirs of two nursing-home residents 3 who died from COVID-19 filed a state-court action against the facility, which then attempted to 4 remove based on the federal-officer removal statute.83 The court held that the defendants’
5 compliance (or lack thereof) with general federal guidelines in response to the COVID-19 6 pandemic was insufficient to confer federal jurisdiction over the claims.84 It stressed that the 7 causal link between the defendants’ actions and the plaintiffs’ claims was missing because the 8 allegations were focused on the defendants’ inactions, a distinction that “serves to weaken 9 Defendants’ federal officer argument.”85 “[M]any other courts have concluded” that nursing- 10 home defendants’ mere compliance “with the government’s directives during the pandemic— 11 even if those directives were pervasive and detailed—does not mean that they were ‘acting 12 under’ a federal officer within the meaning of” this statute.86 Because the defendants did not act 13 under a federal official’s direction by following or failing to follow general COVID-19 14 guidelines, they cannot benefit from the federal-officer removal statute.
15 Like in Fidelitad and Cortez, the defendants here did not act under the direction of a 16 federal officer, and the plaintiffs don’t allege that they did. The nursing home is a private party, 17 not a federal actor.87 The plaintiffs’ allegations concern the defendants’ general negligence in 18 caring for Esparza while she was a resident at The Heights, not their degree of compliance with 19
20 83 Cortez v. Parkwest Rehab. Center LLC, 2021 WL 4033759 (C.D. Cal. Sept. 3, 2021). 84 Id. at *3. 21 85 Id. 22 86 Hagoubyan, 2021 WL 4288524, at *5 (citations omitted). 87 See Maglioli, 16 F.4th at 404–05 (illustrating the federal-officer removal statute’s application 23 in the context of government contractors, who are delegated authority by the federal government and who provide services that the government itself would otherwise provide). 1 federal officers’ guidance in response to the COVID-19 pandemic. The plaintiffs’ only 2 allegations concerning COVID-19 are that because the defendants “failed to develop and follow 3 proper policies, procedures, and precautions to prevent the transmission and spread of COVID- 4 19, [Esparza] contracted COVID-19 at the Nursing Facility and was hospitalized for the same.”88
5 The vast majority of the plaintiffs’ allegations concern the defendants’ failure to adequately 6 hydrate and nourish Esparza, implement adequate fall precautions, provide adequate hygiene and 7 care measures, and adhere to the nursing standard of care.89 Therefore, this case was not 8 removable under 28 U.S.C. § 1442(a). 9 Conclusion
10 IT IS THEREFORE ORDERED that the plaintiffs’ motion to remand [ECF No. 15] is 11 GRANTED. IT IS FURTHER ORDERED that the defendants’ motions to dismiss [ECF Nos. 12 9, 10] are DENIED as moot and without prejudice to their refiling in state court. The Clerk 13 of Court is directed to REMAND this case back to the Eighth Judicial District Court for 14 Clark County, Nevada; Department 29; Case Number A-21-836257-C, and CLOSE THIS 15 CASE. 16 _______________________________ U.S. District Judge Jennifer A. Dorsey 17 December 1, 2021 18 19 20 21 22
23 88 ECF No. 1-2 at ¶ 51–52. 89 See id. at ¶¶ 46–50; see also ECF No. 15-2 at 13.