1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES ZALMAN, individually and as No. 2:21-cv-01395-TLN-DB heir and successor in interest to MARTHA 12 PARMELEE, 13 Plaintiff, ORDER 14 v. 15 WINDSOR VALLEJO CARE CENTER, LLC dba WINDSOR VALLEJO 16 NURSING & REHABILITATION CENTER; DOES 1–50; and DOES 51–60, 17 Defendants. 18 19 This matter is before the Court on Defendant Windsor Vallejo Care Center, LLC’s 20 (“Defendant”) Motion to Dismiss (ECF No. 3) and Plaintiff James Zalman’s (“Plaintiff”) Motion 21 to Remand (ECF No. 6). Both parties filed oppositions and replies. (ECF Nos. 6, 8, 11.) For the 22 reasons set forth below, Plaintiff’s motion is GRANTED and Defendant’s motion is DENIED as 23 moot. 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 The instant case arises from Defendant’s alleged neglect and deliberate disregard for the 3 health and safety of Martha Parmelee, who was a resident at Defendant’s skilled nursing facility. 4 (See ECF No. 1-1.) Plaintiff alleges that as a result of Defendant’s abuse and neglect, Martha 5 Parmelee contracted COVID-19, which caused her pain and suffering and led to her rapid decline 6 and untimely death on September 14, 2020. (Id. at 4–5.) Plaintiff filed this action in Solano 7 County Superior Court on June 14, 2021, alleging claims for elder abuse, negligence, and 8 wrongful death. (Id. at 3.) Defendant removed the action to this Court on August 5, 2021. (ECF 9 No. 1.) Plaintiff filed the instant motion on September 10, 2021. (ECF No. 6.) 10 II. STANDARD OF LAW 11 28 U.S.C. § 1441 permits the removal to federal court of any civil action over which “the 12 district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “Removal is 13 proper only if the court could have exercised jurisdiction over the action had it originally been 14 filed in federal court.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). 15 Courts “strictly construe the removal statute against removal jurisdiction,” and “the 16 defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980 17 F.2d 564, 566 (9th Cir. 1992) (per curiam). Furthermore, “[i]f the district court at any time 18 determines that it lacks subject matter jurisdiction over the removed action, it must remedy the 19 improvident grant of removal by remanding the action to state court.” California ex rel. Lockyer 20 v. Dynegy, Inc., 375 F.3d 831, 838, as amended, 387 F.3d 966 (9th Cir. 2004), cert. denied, 544 21 U.S. 974 (2005). 22 The “presence or absence of federal question jurisdiction is governed by the ‘well-pleaded 23 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is 24 presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc., 482 U.S. at 25 386. Removal cannot be based on a defense, counterclaim, cross-claim, or third party claim 26 raising a federal question, whether filed in state court or federal court. See Vaden v. Discover 27 Bank, 556 U.S. 49 (2009); Hunter v. Philip Morris USA, 582 F.3d 1039, 1042–43 (9th Cir. 2009). 28 /// 1 A corollary to the “well-pleaded complaint rule” is the “complete preemption” doctrine. 2 Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63–64 (1987). Under this doctrine, the 3 preemptive force of a federal statute may be strong enough to convert state law claims into 4 federal claims. Id. Complete preemption recognizes the importance of creating a single body of 5 federal law for areas that would likely “be affected by separate systems of substantive law.” See 6 Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962). 7 III. ANALYSIS 8 Plaintiff argues the Public Readiness and Emergency Preparedness (“PREP”) Act does not 9 “completely preempt” the state law claims in the Complaint to serve as a basis for federal 10 jurisdiction. (ECF No. 6 at 17–18.) Specifically, Plaintiff contends the available remedy to an 11 injured plaintiff under the PREP Act is an administrative process through the Covered 12 Countermeasure Process Fund administered by the Secretary of Health and Human Services 13 (“HHS”), and therefore the PREP Act does not create original jurisdiction in the federal courts.1 14 (Id. at 19, 21 (citing 42 U.S.C. §§ 247d-6e(a), 247d-6e(b)(1)).) 15 In opposition, Defendant asserts “the PREP Act provides for broad immunity, preempts 16 conflicting state laws, creates an exclusive federal cause of action for willful misconduct to be 17 heard in an exclusive federal venue, and establishes an administrative remedy supported by a no- 18 fault benefits compensation fund.” (ECF No. 8 at 13 (citing 42 U.S.C. §§ 247d-6d(a)(1)–(2), 19 (d)(1), (e)(1), (e)(5), 247d-6e(d)(1)).) Defendant also asserts that the declarations of the HHS 20 Secretary and the HHS Office of General Counsel Advisory Opinions stating that the PREP Act 21 completely preempts state law “must be given Chevron controlling weight.” (Id. at 19–20 (citing 22 23 1 Plaintiff argues Defendant has alleged a form of Garmon preemption, which the Ninth 24 Circuit has found cannot sustain a claim of complete preemption. (ECF No. 6 at 21–23 (citing San Diego Bldg. Trade Council, Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236, 245 25 (1959)).) Because Defendant does not address this argument in its opposition, the Court declines to address arguments related to the issue herein. The parties also dispute whether the PREP Act 26 falls within the Grable doctrine. (ECF No. 6 at 23–24; ECF No. 8 at 14–15 (citing Grable & 27 Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 315 (2005)).) The Court declines to address arguments related to this issue as well because it is not necessary for resolution of the 28 instant motion. 1 Chevron USA, Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984)).)2 Defendant 2 maintains the PREP Act explicitly states an intention to preempt state control of these issues, as it 3 provides that: 4 [N]o State . . . may establish, enforce, or continue in effect with respect to a covered countermeasure any provision of law or legal 5 requirement that . . . (A) is different from, or is in conflict with, any requirement applicable under this section; and (B) relates to the . . . 6 use, . . . dispensing, or administration by qualified persons of the covered countermeasure. 7 8 (Id. at 17 (citing 42 U.S.C. § 247d-6d
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES ZALMAN, individually and as No. 2:21-cv-01395-TLN-DB heir and successor in interest to MARTHA 12 PARMELEE, 13 Plaintiff, ORDER 14 v. 15 WINDSOR VALLEJO CARE CENTER, LLC dba WINDSOR VALLEJO 16 NURSING & REHABILITATION CENTER; DOES 1–50; and DOES 51–60, 17 Defendants. 18 19 This matter is before the Court on Defendant Windsor Vallejo Care Center, LLC’s 20 (“Defendant”) Motion to Dismiss (ECF No. 3) and Plaintiff James Zalman’s (“Plaintiff”) Motion 21 to Remand (ECF No. 6). Both parties filed oppositions and replies. (ECF Nos. 6, 8, 11.) For the 22 reasons set forth below, Plaintiff’s motion is GRANTED and Defendant’s motion is DENIED as 23 moot. 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 The instant case arises from Defendant’s alleged neglect and deliberate disregard for the 3 health and safety of Martha Parmelee, who was a resident at Defendant’s skilled nursing facility. 4 (See ECF No. 1-1.) Plaintiff alleges that as a result of Defendant’s abuse and neglect, Martha 5 Parmelee contracted COVID-19, which caused her pain and suffering and led to her rapid decline 6 and untimely death on September 14, 2020. (Id. at 4–5.) Plaintiff filed this action in Solano 7 County Superior Court on June 14, 2021, alleging claims for elder abuse, negligence, and 8 wrongful death. (Id. at 3.) Defendant removed the action to this Court on August 5, 2021. (ECF 9 No. 1.) Plaintiff filed the instant motion on September 10, 2021. (ECF No. 6.) 10 II. STANDARD OF LAW 11 28 U.S.C. § 1441 permits the removal to federal court of any civil action over which “the 12 district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “Removal is 13 proper only if the court could have exercised jurisdiction over the action had it originally been 14 filed in federal court.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). 15 Courts “strictly construe the removal statute against removal jurisdiction,” and “the 16 defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980 17 F.2d 564, 566 (9th Cir. 1992) (per curiam). Furthermore, “[i]f the district court at any time 18 determines that it lacks subject matter jurisdiction over the removed action, it must remedy the 19 improvident grant of removal by remanding the action to state court.” California ex rel. Lockyer 20 v. Dynegy, Inc., 375 F.3d 831, 838, as amended, 387 F.3d 966 (9th Cir. 2004), cert. denied, 544 21 U.S. 974 (2005). 22 The “presence or absence of federal question jurisdiction is governed by the ‘well-pleaded 23 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is 24 presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc., 482 U.S. at 25 386. Removal cannot be based on a defense, counterclaim, cross-claim, or third party claim 26 raising a federal question, whether filed in state court or federal court. See Vaden v. Discover 27 Bank, 556 U.S. 49 (2009); Hunter v. Philip Morris USA, 582 F.3d 1039, 1042–43 (9th Cir. 2009). 28 /// 1 A corollary to the “well-pleaded complaint rule” is the “complete preemption” doctrine. 2 Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63–64 (1987). Under this doctrine, the 3 preemptive force of a federal statute may be strong enough to convert state law claims into 4 federal claims. Id. Complete preemption recognizes the importance of creating a single body of 5 federal law for areas that would likely “be affected by separate systems of substantive law.” See 6 Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962). 7 III. ANALYSIS 8 Plaintiff argues the Public Readiness and Emergency Preparedness (“PREP”) Act does not 9 “completely preempt” the state law claims in the Complaint to serve as a basis for federal 10 jurisdiction. (ECF No. 6 at 17–18.) Specifically, Plaintiff contends the available remedy to an 11 injured plaintiff under the PREP Act is an administrative process through the Covered 12 Countermeasure Process Fund administered by the Secretary of Health and Human Services 13 (“HHS”), and therefore the PREP Act does not create original jurisdiction in the federal courts.1 14 (Id. at 19, 21 (citing 42 U.S.C. §§ 247d-6e(a), 247d-6e(b)(1)).) 15 In opposition, Defendant asserts “the PREP Act provides for broad immunity, preempts 16 conflicting state laws, creates an exclusive federal cause of action for willful misconduct to be 17 heard in an exclusive federal venue, and establishes an administrative remedy supported by a no- 18 fault benefits compensation fund.” (ECF No. 8 at 13 (citing 42 U.S.C. §§ 247d-6d(a)(1)–(2), 19 (d)(1), (e)(1), (e)(5), 247d-6e(d)(1)).) Defendant also asserts that the declarations of the HHS 20 Secretary and the HHS Office of General Counsel Advisory Opinions stating that the PREP Act 21 completely preempts state law “must be given Chevron controlling weight.” (Id. at 19–20 (citing 22 23 1 Plaintiff argues Defendant has alleged a form of Garmon preemption, which the Ninth 24 Circuit has found cannot sustain a claim of complete preemption. (ECF No. 6 at 21–23 (citing San Diego Bldg. Trade Council, Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236, 245 25 (1959)).) Because Defendant does not address this argument in its opposition, the Court declines to address arguments related to the issue herein. The parties also dispute whether the PREP Act 26 falls within the Grable doctrine. (ECF No. 6 at 23–24; ECF No. 8 at 14–15 (citing Grable & 27 Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 315 (2005)).) The Court declines to address arguments related to this issue as well because it is not necessary for resolution of the 28 instant motion. 1 Chevron USA, Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984)).)2 Defendant 2 maintains the PREP Act explicitly states an intention to preempt state control of these issues, as it 3 provides that: 4 [N]o State . . . may establish, enforce, or continue in effect with respect to a covered countermeasure any provision of law or legal 5 requirement that . . . (A) is different from, or is in conflict with, any requirement applicable under this section; and (B) relates to the . . . 6 use, . . . dispensing, or administration by qualified persons of the covered countermeasure. 7 8 (Id. at 17 (citing 42 U.S.C. § 247d-6d(b)(8)).) 9 Plaintiff did not file a reply, but filed a notice of supplemental authority in which he 10 highlights Ninth Circuit cases that affirm district court orders granting plaintiffs’ motions to 11 remand based on the fact that plaintiffs’ claims were not completely preempted by the PREP Act. 12 (ECF No. 13 at 1 (citing Saldana v. Glenhaven Healthcare, LLC, 27 F.4th 679 (9th Cir. 2022); 13 Martin v. Filart, No. 20-56067, 2022 WL 576012 (9th Cir. Feb. 25, 2022)).) Plaintiff notes the 14 Ninth Circuit in both Saldana and Martin unanimously denied the petition for panel rehearing and 15 for rehearing en banc. (Id. at 2.) 16 The PREP Act provides that “a covered person shall be immune from suit and liability 17 under Federal and State law with respect to all claims caused by, arising out of, relating to, or 18 resulting from the administration to or the use by an individual of a covered 19 countermeasure . . . .” 42 U.S.C. § 247d-6d(a)(1). It also provides that if the HHS Secretary 20 “makes a determination that a disease or other health condition or other threat to health 21 constitutes a public health emergency . . . the Secretary may make a declaration . . . 22 recommending . . . the manufacture, testing, development, distribution, administration, or use of 23 one or more covered countermeasures[.]” Id. § 247d-6d(b)(1). The PREP Act also established 24 the Covered Countermeasure Process Fund “for purposes of providing timely, uniform, and 25 adequate compensation to eligible individuals for covered injuries directly caused by the 26 2 In short, the Supreme Court held in Chevron that where “legislative delegation to an 27 agency on a particular question is implicit rather than explicit . . . a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the 28 administrator of an agency.” 467 U.S. at 844. 1 administration or use of a covered countermeasure pursuant to such a declaration[.]” Id. § 247d- 2 6e(a). 3 The Ninth Circuit has indeed held the PREP Act is not a complete preemption statute. 4 Saldana, 27 F.4th at 688. Specifically, the court found that Congress did not intend to displace a 5 state law cause of action nor did it provide a substitute cause of action, as “[t]he text of the statute 6 shows that Congress intended a federal claim only for willful misconduct claims and not claims 7 for negligence and recklessness.” Id. (citing 42 U.S.C. § 247d-6d(c)(1)(B)). Further, the court 8 noted that “[a]n administrative compensation fund, not an exclusive federal cause of action, 9 provides the only redress for claims brought under the Act, other than those alleging ‘willful 10 misconduct.’” Id. The court also rejected the defendant’s complete preemption argument based 11 on the HHS Secretary’s and the HHS Office of General Counsel’s conclusions that the PREP Act 12 is a complete preemption statute, noting that complete preemption is jurisdictional and “an 13 agency’s opinion on federal court jurisdiction is not entitled to Chevron deference.” Id. at 687. 14 The Ninth Circuit, citing its decision in Saldana, also found that the PREP Act did not completely 15 preempt a plaintiff’s claims for elder abuse and neglect, negligence, wrongful death, fraudulent 16 concealment, and fraudulent misrepresentation, as the PREP Act “is not one of those ‘rare’ 17 statutes ‘where a federal statutory scheme is so comprehensive that it entirely supplants state law 18 causes of action.’” Martin, 2022 WL 576012, at *1 (citing Saldana, 27 F.4th at 688). 19 In light of the foregoing case law, the Court agrees with Plaintiff that the PREP Act does 20 not completely preempt the claims in the Complaint. Specifically, the Court finds that Plaintiff’s 21 claims for elder abuse, negligence, and wrongful death are not completely preempted as the PREP 22 Act does not “entirely supplant[] state law causes of action” and Plaintiff’s claims do not allege 23 willful misconduct. Saldana, 27 F.4th at 687–88. The Court further rejects Defendant’s 24 argument that the HHS Secretary’s declarations and the HHS Office of General Counsel Advisory 25 Opinions are entitled to Chevron deference. Id. at 687. Finally, the Court notes that Defendant 26 does not assert any other basis for federal jurisdiction besides complete preemption of the PREP 27 Act. (See ECF Nos. 1, 8.) Accordingly, Plaintiff’s motion to remand is GRANTED. 28 /// 1 IV. CONCLUSION 2 Based on the foregoing, the Court hereby GRANTS Plaintiff's Motion to Remand (ECF 3 | No. 6) and DENIES Defendant’s Motion to Dismiss as moot (ECF No. 3). The case is remanded 4 | to Solano County Superior Court and the Clerk of the Court is directed to close the case. 5 IT IS SO ORDERED. 6 | DATED: July 22, 2022 7 ry / 8 “ the
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