Todd M. Swick v. Canoga Healthcare, Inc.

• Court: District Court, C.D. California
• Decided: August 5, 2021
• Docket: 2:21-cv-02876
• Status: Unknown

Opinion

1 2 JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JAMES SWICK, Individually and as Case No. CV 21-02876-AB (RAOx) heir and Successor in Interest to TODD 11 SWICK, Deceased, ORDER GRANTING MOTION FOR REMAND 12 Plaintiff,

13 v.

14 CANOGA HEALTHCARE, INC., d/b/a WEST HILLS HEALTH AND 15 REHAB CENTER,

16 Defendant. 17 18 Before the Court is a Motion for Remand (“Motion,” Dkt. No. 16) filed by 19 Plaintiff James Swick (“Plaintiff”). Defendant Canoga Healthcare, Inc. (“Defendant”) 20 filed an opposition. Plaintiff did not file a reply. For the following reasons, the Motion 21 is GRANTED. 22 I. BACKGROUND 23 Plaintiff’s Complaint (Dkt. No. 13-1 or 16-1)1 alleges as follows. On March 23, 24

25 1 A defendant may remove a case by filing a notice of removal “together with a copy 26 of all process, pleadings, and orders served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a) (emphasis added). Here, Defendant did not file the 27 Complaint “together with” the notice of removal as required by § 1446(a). Instead, 28 Defendant included the Complaint as an attachment to a standalone Request for Order 1 2020, James Swick was admitted to the West Hills Care Center (“West Hills”). On 2 April 9, 2020, Mr. Swick was taken to the hospital after contracting the coronavirus. 3 He passed away the same day. Plaintiff alleged that Mr. Swick’s death was due to the 4 inactions of Canoga and West Hills, specifically that due to the failure of West Hills to 5 properly implement infection control policies, Mr. Swick contracted the coronavirus 6 and died shortly thereafter. Based on these allegations, Plaintiff filed his Complaint in 7 the Superior Court of the State of California on December 8, 2020, asserting claims 8 for elder abuse, negligence, and wrongful death. 9 On April 2, 2021, Defendants removed this case to Federal Court, asserting 10 subject matter jurisdiction on three grounds: (1) the federal officer statute 28 U.S.C. § 11 1442(a)(1), given the CDC’s ongoing directives to respond to and control the COVID- 12 19 pandemic; (2) complete preemption pursuant to the PREP Act, 42 U.S.C. §§ 247d- 13 6d, 247d-6e; and (3) the Grable doctrine. See Notice of Removal (Dkt. No. 1). 14 Plaintiff now moves for remand, arguing that the Court lacks subject matter 15 jurisdiction. Other courts in the Central District of California have already addressed 16 these questions in the context of state law tort suits arising out of COVID-19 deaths in 17 care facilities. See, e.g., Martin v. Serrano Post Acute LLC, No. CV 20-5937 DSF 18 (SKX), 2020 WL 5422949, at *1 (C.D. Cal. Sept. 10, 2020); Jackie Saldana v. 19 Glenhaven Healthcare LLC, No. CV-205631-FMO-MAAX, 2020 WL 6713995, at *1 20 (C.D. Cal. Oct. 14, 2020); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-CV- 21

22 of Removal with multiple other attachments filed three days after the case was 23 removed. See Request for Removal (Dkt. No. 4). The same day, Defendant filed a 24 request to withdraw the Request for Removal, and the Court also struck it as an improper filing. Then, more than three weeks later, on April 28, Defendant filed a 25 Request for Judicial Notice (Dkt. No. 13) that included the Complaint (Dkt. No. 13-1) 26 as one of many exhibits. The Court admonishes Defendant for not complying with the important requirement of § 1446(a) that it file the Complaint along with the notice of 27 removal. Filing the complaint upon removal permits the Court to quickly review the 28 complaint to check its jurisdiction. 1 09746-SB-PVC, 2021 WL 911951, at *1 (C.D. Cal. Mar. 1, 2021); Smith v. Colonial 2 Care Ctr., Inc., No. 2:21-CV-00494-RGK-PD, 2021 WL 1087284, at *1 (C.D. Cal. 3 Mar. 19, 2021); Stone v. Long Beach Healthcare Ctr., LLC, No. CV 21-326- 4 JFW(PVCX), 2021 WL 1163572, at *1 (C.D. Cal. Mar. 26, 2021); Winn v. California 5 Post Acute LLC, No. CV2102854PAMARX, 2021 WL 1292507, at *1 (C.D. Cal. Apr. 6 6, 2021). In each of these cases, the Court found that it lacked subject matter 7 jurisdiction and remanded the case to state court. Notably, Defendant has not pointed 8 to any Court orders from this or any other district finding federal subject matter 9 jurisdiction over COVID-19 related state law claims on the grounds asserted here. 10 Plaintiff notes, and the Court also found, a single case from this district finding 11 complete preemption under the PREP Act and denying remand. See Garcia v. 12 Welltower OpCo Grp. LLC, No. SACV2002250JVSKESX, 2021 WL 492581, at *1 13 (C.D. Cal. Feb. 10, 2021). However, the Court explains below why it declines to 14 follow the reasoning of Garcia. The Court finds the weight of opinion of its sister 15 courts persuasive, and accordingly this Order relies on them. 16 II. LEGAL STANDARD 17 A defendant may remove a civil action filed in state court to federal district 18 court when the federal court has original jurisdiction over the action. 28 U.S.C. 19 §1441(a). “The burden of establishing jurisdiction falls on the party invoking the 20 removal statute, which is strictly construed against removal.” Sullivan v. First 21 Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir. 1987) (internal citations omitted); 22 see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). “The ‘strong 23 presumption’ against removal jurisdiction means that the defendant always 24 has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980. F.2d 25 564, 566 (9th Cir. 1992). If any doubt exists as to the right of removal, federal 26 jurisdiction must be rejected. Id. at 566–67; see also Hunter v. Philip Morris USA, 27 582 F.3d 1039, 1042 (9th Cir. 2009) (citing Id. at 566) (“[T]he court resolves all 28 1 ambiguity in favor of remand to state court.”). 2 III. DISCUSSION 3 Defendants argue that this Court has subject matter jurisdiction on three 4 independent grounds: (a) federal officer removal; (b) complete preemption under the 5 PREP Act, and (c) embedded question of federal law under the Grable doctrine. 6 Plaintiff responds that none of these grounds applies here. 7 A. Federal Officer Removal 8 Federal officer removal is available under 28 U.S.C. § 1442(a) if “(a) [the 9 removing party] is a ‘person’ within the meaning of the statute; (b) there is a causal 10 nexus between its actions, taken pursuant to a federal officer’s directions, and 11 plaintiff’s claims; and (c) it can assert a ‘colorable federal defense.’” Fidelitad, Inc. v. 12 Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018). This is an exception to the well- 13 pleaded complaint rule, which typically requires a federal question to be pleaded in 14 the complaint in order for the court to have subject matter jurisdiction based on a 15 federal question. See N.G. v. Downey Reg’l Med. Ctr., 140 F.Supp.3d 1036, 1039 16 (C.D. Cal. 2015). 17 There is no dispute that the removing parties are persons for purposes of the 18 statute. The next inquiry is whether Defendants acted “pursuant to a federal officer’s 19 directions,” whether there is a “causal nexus” between Defendants’ actions and 20 Plaintiff’s claims, and whether Defendants can assert a colorable federal defense. 21 Defendants point to government regulations and public directives regarding the 22 response to the COVID-19 pandemic. The court in Fidelitad noted that, “[f]or a 23 private entity to be acting under a federal officer, the private entity must be involved 24 in an effort to assist, or to help carry out, the duties or tasks of the federal superior.” 25 Fidelitad, Inc., 904 F.3d at 1095. Further, a “private firm’s compliance (or 26 noncompliance) with federal laws, rules, and regulations does not by itself fall within 27 the scope of the statutory phrase ‘acting under’ a federal ‘official.’ And that is so even 28 if the regulation is highly detailed and even if the private firm’s activities are highly 1 supervised and monitored.” Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 2 153 (2007). 3 Defendants argue that the government regulations and public directives 4 implemented during the COVID-19 pandemic are tantamount to directions from a 5 federal officer. In Saldana v. Glenhaven Healthcare LLC, 20-cv-5631, 2020 WL 6 6713995, at *3 (C.D. Cal. Oct. 14, 2020), defendants argued that “in taking steps to 7 prevent the spread of COVID-19, [they] did so in compliance with CDC and CMS 8 directives, which were aimed at helping achieve the federal government’s efforts at 9 stopping or limiting the spread of COVID-19.” The court found that such general 10 regulations and public directives were “insufficient” to confer jurisdiction under the 11 federal officer removal statute. Id. Similarly, this Court is not persuaded that the 12 CDC’s various and ongoing guidance in response to the pandemic means that 13 Defendant was “acting under” a federal official. “[M]erely being subject to federal 14 regulations or performing some functions that a government agency controls is not 15 enough to transform a private entity into a federal officer.” Panther Brands, LLC, v. 16 Indy Racing League, LLC, 927 F.3d 586, 590 (7th Cir. 2016). 17 Furthermore, there is no causal link between Defendants’ actions and Plaintiff’s 18 claims. Rather, Plaintiffs claims are directed towards the inactions of Defendant. This 19 distinction serves to weaken Defendants’ federal officer argument. 20 This Court finds that Defendant has not established that removal was proper 21 based on the federal officer removal statute. 22 B. Complete Preemption 23 Defendants also fail to raise a “colorable federal defense” under the theory of 24 complete preemption. Under the doctrine of complete preemption, a state law claim 25 can be considered to arise under federal law if “Congress intended the scope of federal 26 law to be so broad as to entirely replace any state-law claim.” Retail Prop. Tr. v. 27 United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014) 28 1 (quoting Dennis v. Hart, 724 F.3d 1249, 1254 (9th Cir. 2013)). Complete preemption 2 that confers federal question jurisdiction is very rare. See City of Oakland v. BP PLC, 3 969 F.3d 895 (9th Cir. 2020) (“The Supreme Court has identified only three statutes 4 that meet this criteria [for complete preemption].”). 5 In the Ninth Circuit, “complete preemption for purposes of federal jurisdiction 6 under § 1331 exists when Congress: (1) intended to displace a state-law cause of 7 action, and (2) provided a substitute cause of action.” City of Oakland v. BP PLC, 969 8 F.3d 895, 905–06 (9th Cir. 2020) (citing Hansen v. Grp. Health Coop., 902 F.3d 1051, 9 1057 (9th Cir. 2018)). The PREP Act does not satisfy the Ninth Circuit’s two-part 10 complete preemption test. See, e.g., Stone v. Long Beach Healthcare Ctr., LLC, CV 11 21-326-JFW (PVCx), 2021 WL 1163572, at *5–7 (C.D. Cal. Mar. 26, 2021) 12 (collecting cases and concluding PREP Act does not satisfy Ninth Circuit complete 13 preemption test); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-CV-09746-SB- 14 PVC, 2021 WL 911951, at *3-*6 (C.D. Cal. Mar. 1, 2021) (finding no complete 15 preemption). The Court acknowledges that the Garcia Court did find complete 16 preemption. But the Garcia court deferred to an opinion of the HHS Secretary2, and 17 did not address the Ninth Circuit’s two-part test, so it is not persuasive. 18 If Defendants believe that some or all of Plaintiff’s state law claims are barred 19 by the PREP Act, filing a demurrer in state court is an option available to Defendants. 20 If the state court dismisses the state law claims, Plaintiff could then decide whether 21 they wish to file claims under the PREP Act in the U.S. District Court for the District 22 of Columbia, the court with exclusive jurisdiction over such claims. See 42 U.S.C. § 23 247d-6d(e)(1). 24 The Court joins the weight of district court opinion that the PREP Act does not 25

26 2 Defendant filed that same opinion in the Declaration of Barbara M. Reardon (Dkt. 27 No. 27) after briefing on the motion closed. But, Defendant has not explained why the 28 HHS Secretary’s opinion should be accorded deference. 1 completely preempt the claims herein, and thus provides no basis for removal of this 2 action. 3 C. Embedded Federal Question 4 Defendants also argue that the Grable doctrine applies. Under the Grable 5 doctrine, in order for a state law claim to provide federal question jurisdiction, the 6 “state law claim [must] necessarily raise a stated federal issue, actually disputed and 7 substantial, which a federal forum may entertain without disturbing any 8 congressionally approved balance of federal and state judicial responsibilities.” 9 Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 10 (2005). The Supreme Court has stated “federal jurisdiction over a state law claim will 11 lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and 12 (4) capable of resolution in federal court without disrupting the federal-state balance 13 approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). “[I]t is not 14 enough that the federal issue be significant to the particular parties in the immediate 15 suit; that will always be true when the state claims ‘necessarily raise[s]’ a disputed 16 federal issue, as Grable separately requires. The substantiality inquiry under Grable 17 looks instead to the importance of the issue to the federal system as a whole.” Gunn, 18 568 U.S. at 260. 19 Plaintiff points out that the Grable doctrine relies on the claims made by the 20 plaintiff, not the defenses raised by the defendant. Here, Plaintiff has raised a standard 21 medical negligence and elder abuse claim arising under California law and that does 22 not necessarily raise a federal issue. Defendants are the only parties that raise a 23 federal issue, for example in asserting their immunity defense under the PREP Act. 24 Accordingly, the court does not have subject matter jurisdiction based on an 25 embedded federal question under Grable. Accord Winn v. California Post Acute LLC, 26 No. CV2102854PAMARX, 2021 WL 1292507, at *5 (C.D. Cal. Apr. 6, 2021). 27

28 IV. CONCLUSION For the foregoing reasons, the Court finds that Defendant has not established ; that this Court has subject matter jurisdiction over Plaintiff's claims. The Court 4 therefore GRANTS Plaintiff's Motion for Remand and ORDERS the Clerk of Court ° to remand this matter to the Superior Court of California, County of Los Angeles. 6 The Scheduling Conference set for August 6, 2021 is VACATED. IT IS SO ORDERED. 9 Dated: August 05, 2021 de 10 HONORABLE ANDRE BIROTTE JR. 11 UNITED STATES DISTRICT COURT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8.